Daniel Odhiambo v Ttw (minor Suing Through The Next Friend & Mother Jnw) & 3 others

5. After a full hearing, the trial court delivered its Judgment as follows: Liability 100% in favour of the plaintiff against the 3rd Respondent; General damages of Kshs.120,000/= and; Special damages of Kshs. 6,550/=. 6. 7. The appellant is aggrieved by the said Judgment and preferred this appeal. The memorandum of appeal filed by the firm of Kimondo and Gachoka Counsel for the appellant listed nine grounds which can be condensed in three broad grounds;1. Whether the Respondents proved that the appellant was liable for the accident; 2. Whether the Respondents sued the wrong party; 3. Whether the award of damages was excessive. The appellant prays that the Judgment delivered on 9/11/2023 be substituted with an order dismissing the 1st Respondent’s suit against the appellant with costs. Directions were taken that the appeal do proceed by way of written submissions. 8. This being a first appeal, it behoves this court to evaluate all the evidence tendered before the court afresh, analyse it and come to its own conclusions. The court must however make allowance for the fact that it neither saw nor heard the witnesses testify in order to assess their demeanor. This principle has been discussed in many decisions including Selle & Another -V- Associated Motors Boat Limited & others (1968) EA 123 where the court said:“ 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 ... is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider 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...” The Respondents case (Plaintiffs) 9. The parties testified in CMCC.4A/2023 Where JNW testified as PW1. She told the court that she was travelling along Kitale – Lodwar Road on 18/12/202 aboard motor vehicle KCQ 950B which was driven by the appellant, Daniel Odhiambo (3rd defendant) when it was involved in an accident with a motor cycle. She was with her son TTW (1st Respondent) She stated in her witness statement that the motor vehicle was following a motor cycle which had a passenger; that the motor cyclist slowed down and the motor vehicle crushed into the motor cycle. Both her and her son were injured and were rushed to Kapenguria Referral Hospital. She blamed the accident on the driver of the motor vehicle who she said, was driving at a high speed and did not keep a safe distance from the motor cycle. 10. PW2 Sgt. Janet Wafula of Kapenguria Police station produced the police abstract following a report vide OB No. 34/22/12/2020 where a collision occurred between motor vehicle KCQ 950B and motor cycle KMFE 319B following which two passengers in the vehicle were injured. PW2 was not the Investigations Officer and could not tell how the accident occurred. The abstract was recorded that the case was under investigations. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5305/eng@2026-04-22 2

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The appellants Case (Defendant) 11. The appellant called one witness in his defence. DW1 Sgt. Janet Wafula (PW2) produced an abstract issued on 23/12/2020 vide OB 47/18/12/2021 involving motor vehicle KCQ 950B and a motor cycle KMFE 319B. She also produced the OB which indicated that the appellant was the driver of the motor vehicle which was heading to Kapenguria from Lodwar when the motor cycle overtook a Probox and collided head on with the appellant’s motor vehicle as a result of which the pillion passenger died while the rider received serious injuries. DW1 was not the Investigating officer and that the matter was still pending investigations. Appellant’s Submissions. 12. The appellant identified three issues for consideration: 1. Whether the Respondent sued the correct party; 2. Who caused the accident? 3. Whether the award in damages was manifestly excessive; 13. As regards the first issue, it was submitted that Sections 107,108 and 109 of the Evidence Act places the burden of proof on the party that alleges the existence of a fact; that the 1st Respondent failed to discharge that burden because there was no evidence to prove that the appellant was negligent; that PW1 having testified that she sat towards the rear of the vehicle, was not able to have a clear view of the road ahead; that PW1’s narration that the front part of the motor vehicle collided with the motor cycle in the middle part was contrary to the fact that it is the driver’s door that was damaged; that PW2 only produced the police abstract but did not produce the OB abstract which was later produced by DW1 (appellant). In regard to OB entry 47/18/12/2020, it was submitted that the OB extract captured what the Investigating officer recorded as what occurred at the scene of the accident; that the motor cyclist was overtaking a Probox and collided head on with the motor vehicle in which the passengers were injured while the pillion passenger on the motor cycle died and the rider was injured. Counsel urged that the fact that the motor vehicle KCQ 950B hit the motor cycle is not enough proof that the driver of the vehicle was negligent; that the motor vehicle inspection report and OB report did not prove that the appellant was speeding; that the court failed to take into account the inspection report or the fact that the motor cyclist was to blame for the accident. 14. Counsel relied on the case of Sammy Ngugi Mwaura -VS- John Mbugua Kaaga (2006) eKLR where the Court of Appeal held that the Respondents had sued the wrong party? Counsel submitted that the Respondent had not proved that the appellant was negligent. Counsel also relied on the decisions of Makube -VS- Nyamuro CA 8/1983 and Treadsetters Tyres Ltd -Vs- John Wekesa Wepukhulu (2010) eKLR where the court affirmed the burden of proof in civil cases. In Nickson Muthoka Mutavi -Vs_ Kenya Agricultural Research Institute (2016) eKLR, the court quoted Halsbury’s Laws of England 4th Edition Paragraph 662 Pg 471 when it said that a plaintiff in an action for negligence must prove that he was injured as a result of the negligent act or omission by the Defendant. 15. Other decisions relied upon are Simpson -Vs- Peat [1952] IALL ER 447; and Daniel Kimani Njoroge -Vs- James K. Kihara (2011) eKLR where the court dismissed the plaintiff’s case for failure to prove negligence on a balance of probability. According to the appellant, it is the motor cyclist who was to blame for the accident and yet the wrong person was sued. 16. On the award of Kshs.120,000/= in damages, Counsel submitted that the Respondent only suffered soft tissue injuries and based on the decisions of Onsongo -VS – Owino CA E.102/2023; Wilson https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5305/eng@2026-04-22 3

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Mbogo -Vs- Harrison Nyagen Mosigis CA E054/2023 and Boaz Obure & Another -Vs- Samuel Kiyuka Okityo HCA E088/2023, counsel urged that an award of Kshs.80,000/= was adequate. The Respondent’s submissions. 17. On the question of liability, it was submitted that PW1’s evidence confirmed that the driver of the suit motor vehicle was to blame for the occurrence of the accident in that it was driven at a high speed as a result of which it collided with the motor cycle that was ahead of it; that the testimony of PW2 who also testified as DW1 only confirmed the occurrence of the accident but not the circumstances of the occurrence of the accident; that no evidence was tendered by the appellant to contradict PW1’s testimony; that the appellant, the driver of the suit vehicle did not testify hence the evidence of PW1 remained unchallenged. Counsel relied on the decision of Nandwa -Vs- Kenya Nazi Limited (1988) KECA 42 (KLR) It was urged that the appellant having failed to testify to how the accident occurred, the Respondent is entitled to Judgment at 100%, On liability 18. On quantum, it was submitted that the court assessed the damages in line with the principles laid down in West (H) & Sons Limited -VS- Shepherd (1964) AC 326 and quoted in Duncan Kimathi Karagania -Vs- Ngugi David & 4 others HCC 75/2012 “that money cannot renew a shattered frame but that damages should represent reasonable compensation based on comparable injuries”. Counsel also relied on the decision in KIM PHO CHOO -Vs- Camden & Islignton Area Health Authority (1979) I ALL ER 332 it was urged that the award was reasonable in the circumstances. 19. I have duly considered the grounds of appeal, submissions made on behalf of both parties and the evidence on record. 20. The issues for consideration are :1. Who is to blame for the accident the appellant or a third party? 2. Whether the damages were excessive. Liability 21. As rightly submitted, section 107, 108 and 119 of the Evidence Act places the burden of proof on the party who alleges the existence of a fact. 22. In an action for negligence the burden is always on the plaintiffs to prove that the accident was caused by the negligence of the Defendant. However, if in the cause of trial there is a proved set of facts which raises a prima facie inference that the accident was In Civil cases, the standard of proof is on a balance of probabilities which means that there is greater than 50% likelihood that a fact is true. The question before this court is therefore whether the 1st Respondent proved his case as required of him. There is no dispute that the 1st Respondent was travelling as a passenger in motor vehicle KCQ 950B as a fare paying passenger with his mother. There is also no dispute that the 1st Respondent was injured following an accident involving motor vehicle KCQ 950 B with motor cycle KMFC 349B. The question is whether the driver of KCQ 950B, that is the appellant was negligent or was it the motor cyclist or both? 23. PW1 JN testified that the motor vehicle was driven at a high speed and the vehicle was driving behind the motor cycle when it slowed down, the vehicle hit the motor cycle from the rear as a result of which the pillion passenger sustained fatal injuries while the two of them were also injured. PW2 produced the police abstract on behalf of the Investigation Officer. PW2 again testified as DW1 for the appellant. She was not the Investigating Officer and so she did not visit the scene. In the abstract dated 30/12/2020, issued to PW1, it was indicated that the case was pending investigations and the likely person to be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5305/eng@2026-04-22 4

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charged was the appellant (driver). This abstract was issued by the Investigations Officer who had issued another abstract to DW1 on 23/12/2020. In the abstract issued to the appellant, relating to OB 47/18/12/2020, and the OB indicated that the appellant’s vehicle collided head on with the motor cycle which was overtaking another vehicle (probox). DW1 (PW2) was not in a position to explain why the two abstracts issued by the same Investigating Officer contained different information though they relate to the same incident. 24. The Investigating Officer must have received the information regarding the accident from somebody else and it was only proper that the Investigating officer testify to disclose the source of her information and may be, produce the sketch map of the scene to determine exactly where the accident occurred and whether it tallies with the information in the abstract. 25. In addition, courts have held that a police abstract is not proof of occurrence of an accident. In the case of Kanithi Kimunya -Vs- Aden Guyo (2014) eKLR it was held “A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular station”. 26. Again in ZOS and CAO -Vs- Amollo Stephen (2019) eKLR , Judge Aburuli said “ The police abstract form of the material accident was also produced as an exhibit. However, a police abstract is not and cannot be proof of occurrence of the accident, but proof of the fact that following an accident the occurrence thereof was reported to the police who took conformance of the accident. It is the police, having received information of a report of occurrence of an accident would investigate and establish the circumstances under which such an accident occurred….. It was incumbent upon the appellant at the time of hearing to either call an eye witness who saw the accident take place to prove the listed particulars of negligence attributed ….. or shed light on the result of the investigations and as to who was to blame for the subject accident.” 27. The appellant who was the driver of the suit motor vehicle failed to testify or call an eye witness to the accident to tell the court how the accident and who was to blame for the accident. The appellant did not testify to provide some answers adequate to displace the narration of the events set forth by PW1, that the appellant was to blame for the accident. In their submissions, the appellant’s counsel seemed to rely on a motor vehicle inspection report which allegedly controverted PW1’s testimony. However, no such report was produced as evidence. Submissions are not evidence. 28. In their submissions, the appellant blames the accident on the motor cyclist who was joined to the proceedings as a third party. The trial court in its Judgment addressed the third party issue at Paragraph 27 and 28 (page 75 of Record of Appeal). The court said “the same goes for the 3rd party enjoined herein. A request for Judgment dated 17.09.2022 filed 21.09.2022 was never endorsed by the court and interlocutory judgment entered. Further, a look at the return of service therein, the same was by substituted service by way of service through the post. I note that there is no description of how the process server came to know of the registered post of the 3rd party. 29. I hold there was no service of summons to enter appearance upon the 3rd party as required by the rules and as such the suit against the 3rd party is equally invalid.” 30. From the above finding it meant there was no third party enjoined to these proceedings upon whom to lay or apportion blame. In the end, I find that PW1’s narration of how the accident occurred stands unchallenged. The appellant owed the 1st Respondent a duty of care, to transport the 1st Respondent to his destination but he did not do so. Besides, the 1st respondent was a child aged about 2½ years and therefore no allegations of negligence would be attributed to him. I do agree with the trial court’s finding on liability at 100% as against the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5305/eng@2026-04-22 5

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Quantum 31. The appellant complains that the award of Kshs.120,000/= is high. Over the years, courts have set down principles on award of damages. Firstly, the appellate courts will be very slow to interfere with an award of damages being an exercise of the courts discretion unless certain standards are met. In Kemfro Africa Ltd t/a Meru Express -Vs- Lubia and Another (1982 -88) 1 KAR 777 the court stated thus. 32. The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to 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” 33. See also Butt -Vs- Khan CA 40/1977 the court said “An Appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded 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. 34. In West (H) and Sons Ltd -Vs- Shepherd (1964) AC 326 quoted with approval in Duncan Kimathi Karagania -Vs- Ngugi David & 4 Others HCCC NO. 75 OF 2012 the court said “But money cannot renew physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavor to secure some uniformity in the general method of approach. By common constant awards must be assessed with moderation. Furthermore it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are a considerable extent conventional”. 35. In Kim Pho Choo -Vs- Camden & Islignton Area Health Authority (1979), All ER 332 the court said that “In assessing damages the injured person is only entitled to what is in the circumstances a fair compensation for both the plaintiff and the defendant………………………. the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant” 36. In Arrow Car Ltd -Vs- Bimomo & 2 others (2004) 2KLR 1010. It was stated that comparable injuries should as far as possible be compensated by comparable awards; In Denshire Muteti Wambua -VSKenya Power and Lighting CA 6/2004 [2023] KECA 521 the Court of Appeal stated that awards were to make sense and have regard to the context in which they are made; 37. In the instant case the context in which the compensation for the 1st Respondent must be evaluated has to determine by the nature and extent of the injuries and comparable awards made in the past. The 1st Respondent suffered the following injuries; blunt injury to the neck, chest, back, lacerations in the gum and buccal cavity and blunt injury to the right leg. By the time he was examined by Dr. Sokobe on 24/12/2020, he had not fully healed as the gums were infected. The appellant relied on the following decisions. In Onsongo -Vs- Owino Civil Appeal E.102 /2023 in March 2024, the High Court upheld an award of Kshs.80,000/= for injuries to the head, face, loss of consciousness for some time, abrasions to the back and wounds to the dorsum of the right hand and cut wound on right leg; in Wilson Mbogo -Vs- Harrison Nyangau CA E054/2023, for soft tissue injuries an award of Kshs 300,000/= was substituted with an award of Kshs 80,000/=. In Boaz Obure & Another -VS – Samuel Kiyuka Timothy HCA E088/2023 an award of Kshs.250,000/= was reduced to Kshs.70,000/= https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5305/eng@2026-04-22 6

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38. On their part, the 1st Respondent had relied on the cases of Johnstone Mutuku Kibuga -Vs- Elijah Wambua (2016) eKLR where an award of Kshs.250,000/= was made for trauma to the right ankle, 3x4 cm bruises on right shin, blunt trauma to right limb and lower back; In Charles Gichuhi -Vs- Emily Kawira Mbuba (2018) eKLR. Kshs.300,000/= was awarded for blunt injury to shoulder, chest, left thigh. 39. In Catherine Wanjiru Kingori & others -Vs- Gibson Theuri Gichubi (2005) eKLR, the plaintiffs suffered different soft tissue injuries and were awarded between Kshs.100,000 and 350,000/= in damages. 40. The trial court considered many other cases and awards and having done so, the court found the case of Ndungu Dennis -Vs- Ann Wanjiru Ndirangu (2018) e KLR to be the most relevant in the circumstances. The plaintiff suffered minor bruises on the back, tenderness on the right leg and an award of Kshs.300,000/= was made but reduced to 100,000/= on appeal. 41. Having considered all these comparable awards made for soft tissue injuries, I find that an award of Kshs. 120,000/= was not too high as to be a wrong estimate. The court finds no reason to interfere with the said award. The appellants did not challenge the award of special damages which were proved by production of receipts. In the end, I find no merit in the appeal. It is hereby dismissed with costs to the 1st Respondent. DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 22ND DAY OF APRIL, 2026. HON. R. WENDOH – JUDGE. Judgment read in the presence of Appellant- No appearance Respondent- Ms Otieno Juma/Hellen-Court Assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5305/eng@2026-04-22 7

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