George Okoth Oruko & 1 other v Dam (suing As Mother and Next of Friend of Mk Minor)

2. PW1 Victor Odhaimbo Acheyo, Clinical Officer with specialty in Orthopedic and Trauma stated that as per the P3 Form, the minor suffered head and neck tender forehead lacerations, cut on the head, bleeding from the left ear, ender anterior chest wall, tender left arm and fore arm, fractured left shaft femur. He stated that the P3 form was filled in after one month. He stated that the injuries had been managed through skin traction. He classified the degree of injury as grievous harm. He produced a medical report dated 10th June 2024 which established that the minor suffered severe skeleton injury on the left femur characterized by a fracture. It had been opined that she would heal with shortening approximately 2cm of shortening with a disability index of 10%. That the minor also suffered from soft tissue injuries which have since healed. On being cross-examined, he stated that the fracture will not need surgery for it to heal but there is a possibility of 10% disability. In re-examination, he stated that he discovered the shortening after the minor was discharged, which had been caused by the accident. PW2 Linah Awino did not witness the accident but she heard the noise and went to check where she found the minor lying on the ground. 3. PW3 DA, the minor’s mother stated that she was not with the minor when the accident happened. She stated that the minor was 10 years old. According to her, she didn’t know whether she should have accompanied the minor. 4. PW1 was recalled. He stated that the minor was discharged on 22nd May 2024. That the Consultant Dr. Philip’s diagnosis was fracture of the shaft left femur. In voire dire examination, PW4, the minor stated that she could not understand the meaning of taking oath. In her unsworn testimony, PW4 stated that she was not accompanied. She stated that she was not crossing the road to buy mandazi since the shop was not on the other side of the road. She stated that she could not remember how the accident occurred. According to PW4, she could walk without the crutches. She can also walk and play with her friends. In re-examination, she stated that she did not feel any pain when walking. 5. PW5 No.84xxx Pc Chrisant Onyango produced a police abstract filed on 3rd June 2024 that indicated the minor had been involved in an accident with motor vehicle registration number KDA 291 P, Toyota Hilux Double Cabin Pick Up at about 1400 hours along Siaya-Luanda road at Wagai Shopping Center. He stated that the driver of the motor vehicle pleaded guilty to the offence. He stated that their investigations revealed the driver was to blame for the accident. On being cross-examined, he stated that the road which is not narrow is a busy road. He stated that the accident happened when the minor had already crossed the road. 6. In their defence, the Appellants filed a Statement of Defence dated 28th September 2024 wherein they denied the negligence allegations against them, pleaded that in the event, the minor was injured in the accident, it was wholly and/or substantially contributed to by the negligent and/or carelessness or reckless acts or omission of the minor and her mother. Further, if the accident occurred, then the same was inevitable and occurred despite the employment of due skills, diligence and/or care by its servant or agent and no blame whatsoever can be attributed to the Appellants herein. 7. In his evidence, while adopting his witness statement dated 20th October 2024, the 1st Appellant, a driver, admitted that he was the driver of the suit motor vehicle. He confirmed that there was an accident involving the girl at Wagai Center next to the D.Os Office. He stated that as per the police abstract he was blamed for the accident. In re-examination, he blamed the minor for entering the road very fast. He stated that he tried to avoid, but it was too late. According to the 1st Appellant, the occurrence of the accident was beyond his control. 8. In the judgment, the learned trial Magistrate held the 1st Appellant culpable since he knew he was approaching a shopping center and therefore there was a likelihood that some people might be crossing the road or walking close to the road. However, the learned trial Magistrate found the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1997/eng@2026-02-20 2

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also owed a duty of care to other road users, including the Appellants. The Appellants were held to be 90% liable for failing to have due regard to other road users, thus the Respondent was partially held to have contributed 10% liability. The learned trial Magistrate stated that the minor (PW4) could not remember how the accident occurred, but that the 1st Appellant informed the court that from nowhere, the minor emerged and tried to cross the road. On quantum, the learned trial Magistrate held that the authorities cited did not present injuries closely comparable to those sustained by the minor, despite the soft tissue nature. Taking into consideration the change in economic time and inflation, case laws cited, and the nature of the injuries sustained, he was of the view that general damages in the sum Kshs. 1,000,000.00 was sufficient. Reliance was placed on Jacaranda Bodaboda Opertaors & Another vs Nyasero Civil Appeal No. 774 of 2022[2023] KEHC 23806(KLR) and Branabas vs Ombati( Civil Appeal No. E43 of 2021[2022] KEHC 12136(KLR). Regarding the special damages, the learned trial Magistrate found that only the medical expenses of Kshs. 700, NTSA search Kshs. 550 and medical report at Kshs. 5,000 were proved while the invoice for Kshs. 26,653 from Siaya and Referral Hospital was not proof of payment since it was not endorsed with a stamp indicating that the same had been paid paid. Judgment was entered in favour of the Respondent at liability of 90:10 in favour of the Respondent; general damages for pain and suffering of Kshs. 1,000,000.00 less 10%; special damages of Kshs. 6,250; costs; and interest at court’s rates. 9. 10. Dissatisfied with the decision, in this appeal, the 1st and 2nd Appellants contend that: 1. The learned trial Magistrate erred in law and in fact by failing to find that the minor was wholly to blame for the occurrence of the road traffic accident regard being had to the evidence on record. 2. The learned trial Magistrate erred in law and fact by failing to find and hold that from the evidence on record the minor was in any event substantially to blame for the occurrence of the road traffic accident regard being had to the acts and omissions of the minor as at the time just prior to the accident, their causative, potency relative to the blameworthiness. 3. The learned trial Magistrate erred in law and fact by failing to find and hold that in the circumstances of the road traffic accident , the next of friend and the mother to the minor was partly to blame for the occurrence of the suit accident and therefore ought to shoulder proportionate blame. 4. The learned trial Magistrate erred in law and fact by making an award of general damages that was excessive and inordinately too high as to amount to an injustice. 5. The learned trial Magistrate erred in law and fact by failing to take into account the nature of the injuries suffered by the Respondent in the road traffic accident with the result that he made an erroneous estimate of the loss and damage suffered by the Respondent in the accident hence awarded an excessive quantum of damages. 6. The learned trial Magistrate exercise of discretion in the assessment of the quantum of damages was injudicious hence ought to be set aside. 7. The learned trial Magistrate erred in law and fact by failing to take into account the wealth of appropriate authorities in previous cases with akin to injuries for uniformity and predictability of awards. The Appellants pray that the judgment be set aside and the same be replaced with an appropriate apportionment of liability and assessment of quantum of damages. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1997/eng@2026-02-20 3

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11. The appeal has been canvassed by way of written submissions from both the Appellants and Respondent. 12. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. 13. This being a first appeal, the role of this Court is to re-evaluate and subject the evidence to a fresh analysis to reach an independent conclusion as to whether or not to uphold the decision of the Trial Court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. Selle vs. Associated Motor Boat Co. [1968] EA 123);Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/ a Machira & Co. Advocates [2013] e KLR 14. Odunga J. (as he then was) China Wi Yu Company Limited vs Ronald Manthi David [2021] KEHC 1626 (KLR) stated that this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyze the same, evaluate it and arrive at its independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties. 15. The two issues for determination are on liability and quantum of damages. The question to be determined is whether the Respondent proved her case on a balance of probabilities, and if proved, whether the Respondent is entitled to the reliefs sought in the Plaint. 16. The legal burden of proof was on the Respondent to prove his claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove his assertions pleaded in the Plaint. 17. Section 107(1) of the Evidence Act, Cap 80 provides that: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 18. However, the burden may shift to the Defendant to disprove the alleged claim. This is the evidential burden of proof, which is well captured under Sections 109 and 112 of the Evidence Act. See Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334. 19. The two concepts are well illustrated by the Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR, that: “ The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” See Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, 20. The standard of proof is well captured in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, where the Court held that: Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, discussing the burden of proof, had this to say: “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1997/eng@2026-02-20 4

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This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 21. Kimaru J. (as he then was) in William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526 stated that: “ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.” 22. On the issue of liability, the Appellants contend that the minor did not know how the accident occurred while the 1st Appellant told the court that from nowhere, the minor emerged and tried to cross the road. According to the Appellants, the minor who was 10 years old did not take a proper look out while crossing the road. The 1st Appellant asserts that he tried every way to avoid the accident by applying the emergency brakes but it was too late. The Appellant urges this Court to find the minor and mother were wholly liable for the accident and not the Appellants. The Appellants fault the learned trial Magistrate for apportioning 10% liability to them. 23. According to the Respondent, a minor cannot be held to the same contributory negligence as an adult. Reliance is placed on EWO (Suing as the next friend of a Minor COW) vs Chairman Board of Governors-Agoro Yombe Secondary School (2018) KLR [2018]. The Respondent urges this Court not to disturb the trial Court’s apportionment of liability. 24. The 1st Appellant has not disputed that it was upon reaching Wagai Shopping Center that the minor suddenly rushed into the road and was knocked by the motor vehicle driven by the 1st Appellant. I agree with the learned trial Magistrate that as a reasonable driver, the 1st Appellant should have known that there was a likelihood that some people might be crossing the road or walking to cross the road. The 1st Appellant should have slowed down but he admits that he applied emergency brakes, which means that the motor vehicle was traveling at high speed. PW3 has admitted that the minor was not accompanied. 25. I find, the Appellants grounds of appeal 1, 2 and 3 seeking dismissal of the Respondent's suit unmerited. The learned trial Magistrate correctly applied the facts to the law and principles. The apportionment of liability at 90% to 10% as between the Appellants and Respondent was reasonable. It is also instructive that the Appellant’s driver pleaded guilty to the traffic charge and was subsequently convicted therefor and hence this was clear proof that he was then driving carelessly without due care and attention to other road users. The fact that the driver was unable to control the vehicle even by use of brakes shows that he must have been cruising at high speed yet he knew or ought to have known that he was approaching a shopping centre (Wagai) where there was a likelihood of many persons crossing the road. 26. Regarding the quantum, the Appellants challenge the award of damages as excessive, in particular the award of Kshs. 1,000,000.00 as general damages. It is a generally accepted principle that assessment https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1997/eng@2026-02-20 5

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of damages is a matter of discretion by the trial court. In Agnes Kamene Mulyali vs. Harvest Limited (2017) KECA 764 (KLR), the Court of Appeal stated: “ …Awards of damages of course lie in the discretion of the court but it is exercisable on settled principles. Appellate courts are slow to interfere with the same and will do so only in wellknown circumstances. In Kenya Bus Services & Another vs. Mayende [1992] 2 EA 232 at 235, this court put it thus: ‘The principles on which an appellate court will interfere with a trial court’s assessment of damages are now settled in Kenya. Kneller, JA. as he then was, put it thus in Kitavi vs. Coastal Bottles Limited [1984] LLR 213 (CAK); ‘the court of appeal in Kenya then should as its forerunners did only disturb an award of damages, when the trial judge has taken into account a factor he ought not to have taken into account or the award is so high or so low that it amounts to an erroneous estimate. See Singh vs. Singh and another [1955] 22 EACR at 129; Butt vs. Khan [1977] LLR 2 (CAK).” 27. The Appellants contend that Kshs. 200,000.00 as submitted before the trial Court was a reasonable award as general damages. According to the Appellants, the learned trial Magistrate failed to take into account the nature of injuries sustained and the appropriate authorities cited with akin injuries for uniformity and predictability of awards. The Respondent submit that the severity of the injuries justified the awards. According to the Respondent, the injuries sustained by the minor were serious consisting of orthopedic and soft tissue injuries with significant pain, prolonged disability, and risk of long term complications. 28. It is trite that the Court in assessing award of damages, should take into account, so far as possible, comparable injuries and the passage of time from when the award was made, that is the rate of inflation. The Court of Appeal observed in Simon Taveta vs. Mercy Mutitu Njeru (2014) KECA 755 (KLR) that: “ The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.” See Arrow Car Limited vs. Elijah Shamalla Bimomo & 2 others (2004) KECA 136 (KLR) 29. The Court of Appeal in Kaikai v Chacha & 2 others (Civil Appeal E028 of 2020) [2025] KECA 1278 (KLR) (11 July 2025) (Judgment) Neutral citation: [2025] KECA 1278 (KLR) had this to say: It is trite that each case must be determined on its circumstances as injuries suffered cannot be 100% identical. The award of general damages is not a mathematical exercise in which a court takes a calculator to add or subtract from previous awards. Each case depends on its own facts, and the award of damages is just an estimate that should be as close as possible for similar injuries. This means that unless an award is inordinately low or high, an appellate court should be slow to interfere with an award of damages by the trial court. This is because, unlike an appellate court that only relies on what is written on paper, the trial Judge has the advantage of seeing the victim of the accident assess the impact of the injuries, even as they consider the medical reports.” 30. Though in cross-examination, the minor told the court that she could walk and play with friends and was not feeling pain, PW1 stated that the fracture would not need surgery on the left femur for it to heal but that there was a possibility of 10% disability. In re-examination, PW1 stated that he discovered the shortening after the minor was discharged which had been caused by the accident. The minor sustained one fracture, a cut and other soft tissue injuries. In my view, these are serious injuries commensurate with the award given by the learned trial Magistrate. The decisions cited by the Appellants were old https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1997/eng@2026-02-20 6

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decisions and taking into account the inflation and effluxion of time, the decision do not present reasonable awards. The decisions relied upon by the trial Court were recent with comparable injuries to the injuries sustained by the Minor. 31. I find the Appellants grounds of appeal 4 to 7 unmerited. It is my view that the finding of the trial court on the quantum of damages was proper and must not be interfered with. Hence, the judgement of the trial court dated 19/2/2025 is upheld. 32. In view of the foregoing observations, it is my finding that the Appellants appeal is devoid of merit. The same is dismissed with costs to the Respondent. DATED AND DELIVERED AT SIAYA, THIS 20 TH DAY OF FEBRUARY 2026 D. K. KEMEI JUDGE In the presence of: M/s Nabifo………................for Appellants N/A M/s Onono………………..for Respondent M/s Maureen…………………….. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1997/eng@2026-02-20 7

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