James Mwirigi Salesio v Skk (suing Through Her Mother and Next Friend, Rk)

4. The respondent averred that as a result of the said accident she suffered very serious injuries and as such she suffered los and damages. The particulars of injuries were stated to be as follows:Bruises on right temporal region and left and right maxilla.Deep cut 3X1CM upper hip left side.Chipped upper left incisorBruises on the right hand, elbow joint (anterior) medial. 5. As for the particulars of the special damages, they were specified as follows:Copy of motor vehicle records – 550/=Medical Report – 10,000/=Treatment Expenses – 2,000/=Statutory notice fees – 10,000/=Total 22,550/= 6. The respondent claimed that the defendant was vicariously liable for the tortuous actions of his driver, agent and/or employee. The appellant filed a defence and denied that he was the registered owner of the said motor vehicle, the particulars of negligence and that the respondent sustained injuries and put him to strict proof. The appellant alleged that the respondent was negligent in that he failed to take any adequate precaution for her own safety and that of the deceased pillion passenger. 7. Failing to heed instructions on safety precautions when travelling of as a pillion passenger. Failing to wear protective gear while travelling on a motor cycle as a pillion passenger. failing to heed the traffic rules and regulations when travelling. 8. In the alternative the appellant claimed without prejudice, that the rider of the motor cycle was negligent and gave the particulars of negligence as follows:Failing to have any sufficient regard for the safety of the users of the said road by riding without due care and attention.Failing to take any necessary and/or adequate precaution of his passenger’s own safety.Failing to keep any proper look out for other vehicles that might have reasonable, been on the said road especially motor vehicle registration number KBV 501P.Endangering his life and that o his pillion passenger in his manner of riding motor cycle recklessly on the road.Causing the accident by ramming into the defendant’s motor vehicle.Endangering (the lives of) other road users in his manner of riding.Having total disregard for traffic rules.Failing to step, slow down to swerve or in anyway to manage the said motor cycle so as to avoid the accident. The appellant also denied the particulars of injuries and put the plaintiff to strict proof. He urged the court to dismiss the suit with costs. 9. In summary, the respondent’s case was that he sued the appellant for compensation as a result of an accident that occurred on 4/2/2018 along Nkubu – Mitunguu Road. The respondent was a pillion passenger on motor cycle HAA 007398 which was travelling towards Nkubu Town. The appellants motor vehicle while trying to overtake the motor cycle encountered a motor vehicle coming form the opposite direction and so as to avoid a head-on collision, the appellant moved his vehicle towards the said motor cycle crashed against it and in the process the respondent sustained injuries. The respondent claimed that the defendant was negligent and careless and ought to b e found negligent or causing the accident. The Trial 10. The parties entered a consent in P.M.C.C 67/2018 staying the proceedings, including this file pending determination of the test suit, P.M.C.C 70/2018. Judgment was eventually entered in the test suit and the appellant was found 100% liable. The Judgment on liability was adopted in this matter and learned magistrate proceeded with assessment of quantum of damages. The learned magistrate relied on a medical report which was produced by PW2 Doctor John Kimani Macharia and was filed by Doctor Koome who concluded that the respondent sustained injuries which were grievous harm. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19613/eng@2025-11-27 2

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medial report was produced as exhibit 3. The learned magistrate awarded general damages of Kshs. 300,000/= and the pleaded special damages of Kshs.22,550/=. The Appeal 11. 12. The appellant was aggrieved by the Judgment on quantum and filed this appeal against the entire Judgment. The appeal was based on the following grounds pleaded on the memorandum of appeal dated 10/2/2023: 1. The learned magistrate erred in fact and in law in apportioning liability at; 100% in favour of the Respondent as against the appellant, Kshs. 300,000/= for general damages and Kshs .22,550/ = for special damages which amount was exorbitantly high in the circumstances and injuries suffered by the respondent. 2. The learned magistrate erred in fact and in law in finding that the respondent was entitled to Kshs. 300,000/= being general damages and Kshs. 22,550/= as special damages as the same was too high in view of the evidence tendered and thus the sum awarded is not justified. 3. The learned magistrate erred in fact and in law when delivering judgment in the test suit in CMCC No. 70 of 2018 in holding the defence 100% liable indicating hat the driver did not report that the motorcycle was overtaking from the wrong side which is misapprehension of facts as the occurrence book clearly indicated that the motorcycle was overtaking and rammed the insured vehicle on the rear which evidence was confirmed by the appellant who testified. 4. The learned trial magistrate ignored the appellant’s written submissions and authorities cited. 5. The learned magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice. 6. The learned trial magistrate erred in law and in fact in failing to pay regard to submissions and decisions filed alongside the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable on similar injuries as the case she was deciding. The appellants pray that the judgment delivered on 22/9/2022 on liability and quantum be set aside and replace it with its own assessment. That the appeal be allowed with costs. The Respondent’s Case 13. The respondent called RK (PW1) who testified that she is the mother of SK. She relied on her witness statement dated 28/06/2018 at page 10 of the record of appeal. She had stated that on 4/2/2018 herself and her 3 children were travelling from Kamachege towards Nkubu Market riding on a motor cycle Registration Number HAA 00783. On the way at Kiambogo, the appellant’s motor vehicle was also heading in the same direction as the motor cycle when the motor vehicle suddenly started overtaking the motor cycle. The appellant encountered an oncoming motor cycle and swerved towards their motor cycle. In the process he crashed on the motor cycle causing it to fall on the ground. As a result of the crash, herself and her children were seriously injured. She relied on the medical reports by Doctor Koome. She blamed the driver of motor vehicle KBV 501P for overtaking when it was not safe to do so. PW2 Dr. John Kimani Macharia produced the medical report as exhibit 3 on behalf of Doctor Koome. Appellant’s Case 14. The appellant did not adduce evidence in this case. The Judgment in the test suit has not been filed in the record of Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19613/eng@2025-11-27 3

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The Appeal 15. The appeal proceeded by way of written submission. The appellant did not file his submissions. Respondent’s Submissions 16. It is submitted that liability was determined in a test suit Nkubu Principal Magistrate’s File NO. 70/2018 whereby the appellant was found 100% liable. That the appeal is on quantum of damages awarded by the trial court and costs. That the appellants seeks to have Judgment on liability set aside and a re-assessment be done by this court. It is submitted that the appellant has no ground for faulting the trial court. 17. That the proceedings and Judgment in the test suit has not been availed for this court to make its own conclusion based on the evidence therein. That the testimony of the Plaintiff in the test suit was credible and truthful and it establishes that it is the appellants driver who caused the said accident. That the appellant who was the defendant in the suit did not adduce any evidence to prove the plaintiff’s contributory negligence and this court should uphold the finding by the trial court. 18. The respondent urges the court to find that the appellant was 100% liable. On quantum of damages, it is submitted that the special damages were specifically pleaded and proved. On general damages, the respondent has urged the court not to interfere with the award as it was based on the evidence tendered before the learned magistrate. That assessment of damages is a matter of exercise of discretion by the learned magistrate which the court will not interfere with unless it is shown that the court took into account an irrelevant factor or left out a relevant factor or that the award it made was too high or too low as to amount to an erroneous estimate, or that the assessment is based on no evidence in any event which they confidently submit that it is not he case. Th respondent has urged the court to find that with the narrow scope of the law applicable in this matter, the chances of misrepresentation is close to zero. That the learned magistrate properly applied himself to the issues before his and correctly exercised his discretion and awarded damages, which, though they feel not commensurate to the harm mitigated as they would have hoped for Kshs. 600,000/= but reasonable enough not to be disturbed. 19. The appellant did not file written submissions to expound on the grounds of appeal. Nevertheless, I am minded that I have a duty to determine the appeal either way with the material before me. Analysis and Determination 20. This is a first appeal and the duty of this court is to analyze the evidence which was presented before the trial court, evaluate it and come up with its own independent finding. The only issue to bear in mind is that I had no opportunity to see and hear the witnesses in order to assess their demeanor and leave room for that. See Gitobu Imanyara & 2 Others -vs- Attorney General (2016) eKLR where the court of Appeal held that: “ This being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the Principles upon which this court acts in such an appeal are well settled. Briefly but they are that his court must re-consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 21. I have considered the grounds of appeal enumerated on the memorandum of appeal. There three issues for determination: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19613/eng@2025-11-27 4

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22. 1. The consequences of failure by the appellant to file written submissions. 2. Whether the court should interfere with findings on liability by the leaned magistrate. 3. Whether the court should interfere with the award of quantum of damages. Consequences of failure by the appellant to file written submissions Submissions in court proceedings are the means by which a party argues his case in court by stating the facts, the relevant law and legal provisions and presenting documents in court as well as case law and any other material that he wishes the court to consider while making its decisions. The submissions may be written or oral. Procedure in filing of appeals is provided under Order 42 of the Civil Procedure Rules. Order 42 rule 11 provides for directions and states: “ A Judge of the High Court shall within thirty days of the filing of an appeal under Section 79B of the Act, peruse the appeal and give directions in accordance with the provisions of Section 79B of the Act.” 23. Under Order 42 rule 16 it provides for the filing of written submissions. It provides that: “ Any party to an appeal who does not intend to appeal in person or by an advocate at the hearing of the appeal may file a declaration in writing to that effect and lodge written submissions of the arguments in support of or in opposition to the appeal as the case may be and shall within seven days after lodging the submissions serve a copy thereof on the other party appearing in person or separately represented. A party who has lodged written submissions under this rule may with leave of the court address the court on the day of the hearing of the appeal.” 24. The appellant filed a memorandum of appeal and a record of appeal. The appeal is therefore properly before court. The court directed that the appeal be canvassed by way of written submissions. The appellant did not file submissions as ordered. The consequences are that the appeal was not argued. The party is supposed to address the grounds of appeal in the pleading, in this case the memorandum of appeal. Failure to file submission is fatal to the appeal. It is tantamount to failing to prosecute the appeal. Liability 25. The appellant under ground 1 on the memorandum of appeal stated that he learned magistrate erred in fact and in law in apportioning liability at 100% in favour of the respondent against the appellant. That the learned magistrate erred in fact and in law when delivering Judgment in the test suit in CMCC No. 70/2018 in holding the defence (sic) 100% liable indicating that he driver did not report that the motor cycle was overtaking from the wrong side which is a misapprehension if facts as the occurrence book clearly indicated that the motor cycle was overtaking and rammed the insured vehicle on the rear which evidence was confirmed by the appellant who testified. 26. It is evident from these grounds of appeal that the appellant wished this court to revisit the evidence before the learned magistrate and make its determination and finding. The appellant has not included the proceedings and Judgment of the learned magistrate in the test suit, CMCC 70/2018 in the record of appeal. This court was left to speculate on the findings by the trial magistrate. In the absence of the proceedings and Judgment of the learned Magistrate in CMCC 70/2018 this court has no material that it can fall back on to determine whether the finding can be supported or not. The appellant entered a consent to have CMCC 70/2023 treated as a test suit on liability. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19613/eng@2025-11-27 5

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27. The consent was binding on him as well as the resultant Judgment unless it is overturned on appeal. There is no indication as to whether an appeal was filed in CMCC 70/2018. My view is that the appellant ought to have challenged the finding of the learned magistrate by filing an appeal in that suit. this court is in the darkness as to whether the Judgment in CMCC 70/2017 was challenged on appeal or not. In the absence of that clarification this court has to go by the decision in the test suit. this appeal does not relate to the Judgment in the test suit, CMCC 70/2018 and since the Judgment was applicable in these proceedings, hold that liability is as it was determined in the test suit. the appellants is 100% liable. Quantum of Damages 28. It is the contention by the appellant that the damages awarded to the respondent, that is Kshs. 300,000/ = being general damages and Kshs. 22,550/= special damages were too high in view of the evidence tendered and thus the sum awarded was not justified. The respondent had pleaded that she sustained the following injuries: a. Bruises on the right temporal region right and left maxilla. b. Deep cut 3X1 centimeter upper hip left side. c. Chipped upper left incisor. d. Bruises on the right hand, elbow joint anterior medial 29. She relied on a P3 form which stated that the degree of injury was grievous harm, page 15 of the record. The degree of injury was confirmed by Doctor Micholas Koome who examined the complainant and filled a medical report, page 17 of the record. He stated that the facial scars have healed with disfiguring scars. The chipped tooth has healed but she complains of occasional sensitivity and upon review by a dentist was advised on application of an orthodontic filing. 30. The learned trial magistrate considered the severity of injuries sustained and took into consideration the inflationary rates. He then awarded Kshs. 300,000/=. The award of the quantum of damages is an exercise of discretion by the trial magistrate. The law is now settled by a line of authorities that an appellate court will into interfere with the exercise of discretion by a trial court unless the court acted on wrong principles, took into account irrelevant factors or failed to take into account relevant factors or misdirected itself and arrived at wrong decisions. 31. See Mbogo -vs- Shah (1968) KLR 93 @ 94 where the Judge stated that: “ I think it is well settled that this court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong conclusion.” 32. This principle was also stated in the case of Gitobu Imanyara & 2 Others -vs- Attorney General (2016) eKLR where the court of Appeal state that: “ It is firmly established that this court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages, it will generally be necessary that this court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19613/eng@2025-11-27 6

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should be convinced that either that the Judge acted on some wrong principles of law or that the amount awarded was extremely high or so very low as to make it, in the Judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. 33. The principles upon which an appellate court will interfere with an award of damages have been laid down by this court and the court of Appeal. In the case of Kemfo Africa t/a Meru Exporters Services & Another -vs- A.M Lubia & Another (1982-88) 1 KAR 727. The court stated that: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by trial Judge was held by the former court of appeal of Eastern t be that, it must be satisfied that either the Judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one or that, short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” 34. These are the principles which this court must apply in determining this appeal which is challenging the award of the quantum of damages. The courts have also held that the assessment of the quantum of damages is an exercise of courts’ discretion. In Loice Wanjiku Kagunda -vs Julius Gachau Mwangi C.A 142/2003 (UR) the court stated that; “ We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence appellate court should not interfere with an award of damages unless it is satisfied that the Judge acted on wrong principles of law, or has misapprehended the facts or for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on wrong principles (see Manga -vs- Musila (1984) KLR 25.)” 35. The Court of Appeal in Bashir Ahmed Butt -vs-Uwais Ahmed Khan (1982 – 88) KAR had stated as follows with regard to the issue of appeal on quantum of damages: “ An appellate court will not disturb an award of general damages unless it is so inordinately high or low to represent an entirely erroneous estimate. It must be shown that eh Judge proceed on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low…” 36. The principles for compensation of personal injury are principally three-fold. That is; I. Compensation for the personal injury suffered – See Lord Dunedin in Admiralty Commissioners vs- Valeria (Owners) (1922) 2A. C 242, 248. II. Comparative awards for comparative injuries – See Kagaragani -vs- Aya (1985) KLR 273 where the court of Appeal (Hancox, Nyarangi JJA and plat Ag. JA) it was held; “ In awarding damages for personal injury, the courts should consider that there is need to develop consistency in the awards and that the awards should be within the limits of decided cases and avoid the effect of making insurance cover and fees unaffordable for the public.” 37. In this case the learned trial magistrate noted that the injuries were serious. The respondent had cited the case of Njeru Jim Kennedy -vs- Stephene Ngururu Karanja (2021) eKLR where the plaintiff was awarded Kshs. 500,000/= on appeal for injuries involving degloving of the left side of the mouth and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19613/eng@2025-11-27 7

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cheek, fracture upper incisor teeth, soft tissue injury on the scalp and left hand. The doctor noted an ugly unhealed wound running from the left side of the mouth to the area before the left ear. 38. These injuries were almost similar to those the respondent sustained. The learned magistrate awarded Kshs. 300,000/=. The learned magistrate considered the severelity of injuries and inflation. The discretion in awarding damages for personal injuries has to be exercised while bearing in mind that there should be consistency in awards and they should be within limits of the decided cases. The learned magistrate awarded damages which were below what the respondent had urged the court. There is nothing to fault the exercise of discretion by the learned magistrate. The learned magistrate’s decision based on severelity of injury was in line with the principles for awarding damages for personal injuries. the degree of injury was grievous harm. There was a fair balance as the award was much lower than what was claimed. On special damages they were specifically pleaded and proved as required of such damages. For these reasons, I find no reason to interfere with the award of damages by the learned magistrate. Conclusion 39. The appeal lacks merits and is dismissed with costs. This decision shall apply in Civil Appeal E035/2023 James Mwirigi Salesion -vs- SNK (suing through her mother & next friend RK and Civil Appeal No. E036/2022 James Mwirigi Salesio -vs- SKK (suing through her mother & next friend RK) which I order that they are dismissed with costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 27TH DAY OF NOVEMBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19613/eng@2025-11-27 8

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