Blackstar Ventures Limited & 1 other v Daniel Njoroge Kimemia & 1 other

2. The defendants and/or their agents, driver, servant and/or employee drove, managed and/or controlled motor vehicle Registration No. KBR 544M/ZE 1912 from the opposite direction so negligently that it veered off its path and into the oncoming lane where it collided with motor vehicle registration number KAU 261J. As a result, the two sustained severe injuries, suffered loss and damage. 3. Each of them filed suit at Kilungu SPM Court – Peter Kerry Muthioma filed Kilungu SPMCC E032 of 2022, and Daniel Njoroge Kimemia filed Kilungu SPMCC E033 of 2022. They sued Blackstar Ventures Limited and Abdi Gani Ahmed described in the plaints as the registered/beneficial owners of the motor vehicle registration No. KBR 544M/ZE 1912 Mercedes Benz Prime Mover and Trailer each seeking Judgment against the defendants for:1) General Damages for pain, suffering and loss of amenities. 2) Special damages of Ksh. 10,550 each. 3) Costs of the suit. 4) Interest on (1), (2), & (3) at court rates. 4. The Plaintiffs set out the injuries sustained as fracture of the left tibia fibula; tenderness swelling of and obvious deformity of the left leg; tenderness right lower chest, tenderness and reduced range of movement, left shoulder. It is noteworthy that the injuries were exactly the same. 5. The Plaintiff set out the particulars of negligence on the part of the defendants. 6. The defendants filed different defences in each of the cases. With respect to MCCC E032 (Peter K Muthioma the 1st defendant denied being the registered owner/beneficial owner of motor vehicle registration number KBR 544M/ZE 1912. Both defendants denied the allegations on the driving of the motor vehicle. It was contended that the plaintiffs’ own search had revealed that the 1st defendant was not the registered owner of the said motor vehicle. 7. With respect to Peter K Muthioma the 2nd defendant admitted to being the registered owner of the said motor vehicle denied allegations about the Road Traffic Accident. He proceeded to contend as follows:5) The 2nd Defendant admits that it is the registered owner of the motor vehicle registration number KBR 544M but denies the Plaintiff’s allegations at paragraph 5 of the Plaint and more particularly that on or about the 14th day of May 2021 the Plaintiff was lawfully being driven in motor vehicle registration No. KAU 261J, along Mombasa Road as alleged or otherwise as the owner, driver and/or any other person in charge of the commercial motor vehicle was not permitted to allow the Plaintiff to travel on the vehicle whilst being used on a road otherwise than sitting on seats provided for passengers. Further and without prejudice to the foregoing, the 2nd Defendant avers that if indeed the Plaintiff was being driven in motor vehicle registration No. KAU 261J, which is denied, the Plaintiff was not a lawful and/or authorized passenger in the said motor vehicle as alleged contrary to the mandatory provisions of Rule 88 of the Traffic Rules 1953 and the Plaintiff is put to strict proof of the allegations thereof. 6) The Defendants shall contend at the hearing that motor vehicle registration number KAU 261J was a commercial motor vehicle pursuant to the provisions of section 4(c) of the Traffic Act Cap 403 Laws of Kenya and was neither registered as a private motor vehicle nor a public https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 2

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service vehicle, therefore the Plaintiff was by all means not authorized and/or permitted or at all to board the said motor vehicle as a passenger or in any other capacity as is alleged. 8. 9. 7) Further to the above, the Defendants shall contend that motor vehicle registration number KAU 261J was designed and authorized to carry a maximum of only two (2) passengers, a driver and a loader, and the Plaintiff was an unlawful third passenger as there was a driver namely James Kioko, a passenger namely Daniel Njoroge and the Plaintiff being the third unlawful and/or unauthorized passenger. 8) The Defendants further contend that at the time of the occurrence of the alleged accident, the Plaintiff and his co- passenger namely Daniel Njoroge were neither employees of one Francis K Wamuthiani or Alfonce Paul Munguti being the previous and current owner respectively of motor vehicle registration number KAU 261J which fact has not been pleaded in the Plaintiff’s Plaint nor evidence of authority to board motor vehicle registration number KAU 261J provided. 9) In addition to the aforesaid, the Defendants aver that the Plaintiff has neither disclosed nor pleaded his relationship, contractual or otherwise with the owner or driver of motor vehicle registration number KAU 261J to warrant the Plaintiff’s occupation of the vehicle at the time of the alleged accident. 10) The Defendants aver that by the Plaintiff allowing himself to be an unlawful and/or unauthorized passenger in motor vehicle registration number KAU 261J contrary to the mandatory provisions of Rule 87 of the Traffic Rules 1953, he therefore deliberately compromised the safety and operation of motor vehicle registration number KAU 261J and that of other road users. Peter K Muthioma was accused of negligence as follows j. Failing to alight from a carelessly driven motor vehicle. k. Failing to alight from a motor that was being driven at an excessive speed. l. Failing to allow or permit the driver of motor vehicle registration number KAU 261J to effectively and safely operate the motor vehicle therefore causing the accident. m. Allowing himself to be carried in such a position or in such a manner contrary to the provisions of Rule 87 Traffic Rules 1953 as to occupy part of the driver of motor vehicle registration number KAU 261J’s seat or so as to obstruct his movements or view when driving motor vehicle registration number KAU 261J and as such causing and/or contributing to the accident. n. Allowing himself to be carried on the offside of the driver of motor vehicle registration number KAU 261J contrary to the mandatory provisions of Rule 87(3) Traffic Rules 1953 and as such causing and/or contributing to the accident. o. Causing the accident. The 2nd defendant averred that both Plaintiffs had not disclosed where they were seated in the motor vehicle number KAU 261J. The defendants denied that the doctrine of res ipsa loquitur was applicable in the case. The defendants put the plaintiff to strict proof of his allegations and sought that the suit be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 3

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10. The defendants filed the same defence in Daniel N Kimemia’s a case, and the same particulars of negligence they similarly sought the dismissal of the Daniel N Kimemia’s case. 11. Pw1 in each matter was number 93436 PC Dennis Mugendi or Kithinji from Sultan Hamud police station. He told the court that he was the Investigating Officer in the matter. The report of the accident was received vide OB 16/14/5/2021. That there was an accident along Nairobi/Mombasa Highway at Kwa Matunda area involving three motor vehicles KAU 261J (KAU) driven by Patrick Mutiso KBR 544 M/ZE 191Z (KBR) and KDC 186 G/ZG 436C (KDC) Make Tata Nova. That KAU and KDC were headed the same directions. KBR was coming from the opposite direction and while over taking another motor vehicle it collided with KAU, which hit KDC which it was following closely. The impact by KBR on KAU was on the differential wheels (the 1st wheels after the front wheel).KAU & KDC were extensively damaged. KBR was damaged at the cabin and differential wheels. 12. He testified that KAU had aboard it, the driver, conductor and a passenger. The conductor Njoroge was injured on the leg, the passenger Peter Muthioma sustained fracture of the leg, and the driver Peter Mutiso was injured on the leg – they were taken to Sultan Hamud Hospital for treatment. The driver of KDC had slight injuries, the driver of KBR escaped with no injuries. Upon his investigations he blamed the driver of KBR for the accident. He produced in court the police abstract. He said he visited the scene and drew a sketch plan. 13. Upon cross-examination in Peter K Muthioma’s case he testified that he had not produced the OB which would contain the circumstances of the accident; that he had only produced the police abstract dated 18/5/2021. He testified that an abstract was expected to contain particulars of motor vehicles involved, date of the accident, persons injured and if the matter had been taken to court. He testified that the three drivers were at the scene. He confirmed that the name Patrick Mutiso as the driver of KAU and the name James Kioko as driver of KBC were not featured in the abstract. He also testified that the name of the driver of KBR was not featured in the abstract. He testified further that the police abstract did not require the filing of those details. He stated that KAU was authorized to carry 2 passengers – that it had the driver and the conductor. That Peter K Muthioma was the third passenger; that he was the owner of the load that was being ferried ( hay). He said the matter was under investigation as per the abstract but he still blamed the KBR. He said the injured had been taken to hospital by people he had not known and that they found the passenger at the scene whom they advised to go to hospital. On re-examination he said that his conclusions on blameworthiness for the accident were drawn from his visit to the scene, witness statements and the point of impact. He said that the number of passengers did not contribute to the accident. 14. In Daniel Njoroge’s case – on cross-examination he confirmed that he had not indicated the name of the driver of KBR that the witnesses to the accident were the drivers of KDC and KAU, but that he had not produced their statements in court. He also confirmed that he had not produced the sketch plan, and that on one had been charged with respect to the accident. 15. Peter Kerry Muthioma testified that he was a businessman. He adopted his witness statement. He stated that he was a passenger in KAU. They had just over-taken KDC, when KBR came from the opposite direction and upon realizing he could not over take the other motor vehicle in good time veered toward their side (of KAU) on the passenger side. However, he hit KAU on the passenger side, causing KAU to collide with the motor vehicle KDC which they had just overtaken – that the impact was so violent, that their motor vehicle KAU turned towards the opposite direction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 4

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That he sustained injuries to the left leg, hand and chest. That an ambulance came and ferried the others to hospital. That he remained at the scene thinking he only had slight injuries – but passed out only to find himself in hospital – he was found to have fracture of the left leg. He said he had difficulties walking. 16. On cross-examination he said he was aboard the motor vehicle KAU 261J at the time of the accident – that he had hired the motor vehicle to ferry hay from Mtito Andei to Machakos. He said he could not recall the name of the owner of the motor vehicle. He confirmed that he had not produced any evidence before court to show that he had hired the said motor vehicle. He said he sat on the left side at the door of the motor vehicle but did not indicate that in his plaint. He said he suffered fracture of left leg and dislocation, but it was not indicated in his plaint. 17. Daniel Njoroge Kimemia also adopted his witness statement. He testified that he was injured on the left leg which sustained a fracture. He said he was among those who were ferried to hospital by the ambulance. He blamed driver of KBR. He said he did casual jobs. He testified that on the day of the accident he was called “for squad” whereby the driver of the motor vehicle gave him work as conductor to load and ofioad the customer’s load. He denied being a fare paying passenger. He said he sat in the middle. He said they were ferrying hay to Masii. He stated further that he did not record in his statement that he had buckled up. He said it was not in his plaint that he had sustained a head injury and injury to Ribs. He said he did not sustain similar injuries as Peter Muthioma. He said he was treated at Sultan Hamud hospital – On re- examination he said he had buckled up when the accident happened, that there were three seats in the motor vehicle for him, Peter and the driver. The Defence 18. Dw1 Abdi Gani Ahmed relied on his amended witness statement dated 20/6/2022. He reiterated his statement of defence. 19. Dw2 Derrick Muthinja Waithaka testified on behalf of the 1st defendant and adopted his statement dated 20/6/2022. He stated that he was a manager at the 1st defendant company – that the 1 st defendant company was not the registered owner of the motor vehicle KBR 544M/ZE 1912 that a search conducted at the NTSA by the plaintiffs revealed that the 1st defendant was not the registered owner of the said motor vehicle – and that the 1st defendant was sued wrongly. 20. On cross-examination he told the court that KBR was not one of the motor vehicles owned by the 1st defendant. That Abdi Gani was one of directors of the 1st defendant, the 1st defendant was a limited liability company. 21. The testimony of DW1 & DW2 was heard much later in Daniel Njoroge’s case – and was heard by a different magistrate – Dw1 Derrick Muthinja adopted his witness statement. He proceeded to clarify that 1st defendant had not hired KBR that was the personal business of the 2nd defendant and there was no reason to sue the 1st defendant. 22. On cross-examination he said he was not aware of the insurance of KBR by Black ventures limited the 1st defendant. He said they had not filed any Claim/Counter-claim against Abdi Gani. 23. On re-examination he said he had not been shown any Insurance document. 24. The 2nd defendant was not available and the case was closed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 5

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25. In MCCC E032/2022 the learned magistrate delivered a judgment on 12/5/2023 and found in favour of the plaintiff. 100% liability against both defendants jointly and severally. General Damages – Ksh. 800,000/= Special Damages – Ksh. 10,550/= Total - Ksh. 810,550/= Plus, cost and interest. In MCCC E033/22 the learned trial magistrate delivered Judgment on 26/6/2024. In favour of the plaintiff – 100% liability against the 2nd defendant – (dismissed suit against the 1st defendant) General Damages – Ksh 1,200,000 Special Damages – Ksh 10,550 Total – 1,210,550 The Appeal These judgements provoked the two appeals herein. In HCCA E052/2023. The appellant filled memorandum of appeal – 26. 1. The learned Magistrate failed to appreciate the evidence tendered showing that the 1st Defendant was neither the registered owner of the motor vehicle nor did he have beneficial ownership of the motor vehicle KBR 544M/ZE 1912 2. The learned magistrate erred in arriving at the decision to award liability at 100% against the defendants jointly despite the plaintiff being an unlawful passenger in motor vehicle KAU 261J. 3. The learned magistrate failed to appreciate that the defendants were not responsible for the plaintiff's negligence. 4. The learned magistrate erred in arriving at the decision that was wholly against the weight of the evidence produced and awarding damages that are excessive in the circumstances and sought a. The Appeal be allowed. b. The judgement and order aforesaid be set aside. c. Judgement entered be substituted with an order dismissing the entire Plaintiff case d. The Appellants be awarded the costs of the original case and of this appeal plus the interest at Court rates. e. Any further or other alternative order as the justice of the case may require to be made And in HCCA E076/2024 the following grounds were set out 1. The trial magistrate erred in awarding an excessive award of general damages. The Honourable magistrate in his finding held that the plaintiff had suffered soft tissue injuries, which do not warrant the awarded amount of Kshs. 1,200,000/-. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 6

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27. 2. The trial magistrate awarded general damages that are manifestly excessive given the nature of the injuries. The award does not align with the principles of awarding damages for soft tissue injuries and is significantly higher than awards given in similar cases. 3. The trial magistrate failed to consider comparable awards in similar cases, leading to a disproportionate and unjustified award. Courts should adhere to consistency in awarding damages, and the current award deviates from established precedents. 4. The trial magistrate erred in the application of legal principles governing the assessment of general damages, resulting in an unjust award that does not reflect the actual injuries suffered by the plaintiff. 5. The trial magistrate erred in failing to find contributory negligence on the part of the plaintiff and sought – a) The Appeal be allowed. b) That the Honourable Court be pleased to set aside the judgment and award of general damages of Kshs. 1,200,000/- awarded by the trial magistrate. c) That the Honourable Court be pleased to reassess and reduce the award of general damages to an amount that is just and reasonable, considering the nature of the soft tissue injuries sustained by the plaintiff. d) That the Honourable Court be pleased to acknowledge and rectify the trial magistrate's error in applying legal principles governing the assessment of general damages, thereby ensuring the award reflects the actual injuries suffered by the plaintiff. e) Any further or other alternative order as the justice of the case may require to be made. Daniel Njoroge Kimemia filed a cross appeal on the following grounds:1. That the Learned trial magistrate erred in fact and in law in finding the 2nd Respondent without any interest in motor vehicle KBR 544M/ZE1912 despite evidence filed and availed by the 1st Respondent proving that the 2nd Respondent was the beneficial owner thereof. 2. That the Learned trial Magistrate erred in law and fact by dismissing the suit against the 2nd Respondent despite evidence being availed and produced by the Police investigations officer proving that the 2nd Respondent was the beneficial/insured owner of motor vehicle KBR 544M/ZE1912. 3. That the Learned trial Magistrate erred in law and fact by dismissing the suit against the 2nd Respondent despite its own admission that it had taken an insurance cover on motor vehicle KBR 544M/ZE1912. 4. That the learned trial magistrate erred in law and fact by failing to appreciate the relationship between the Appellant and the 2nd Respondent wherein the Appellant admitted being a director of the 2nd Respondent thus missing on the fact that both the Appellant and 2nd Respondent had vested interest on the subject motor vehicle. 5. That the Learned trial Magistrate erred in law and fact by failing to consider the 1st Respondent's submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 7

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6. 28. That 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. He sought the following orders; 1. The Judgement delivered on 26th June 2024 by the Hon Geno L. Okwengu (Mr.) Senior Resident Magistrate dismissing the suit against the 2nd Respondent be set aside and a judgment of this Court finding the Appellant and the 2nd Respondent jointly and severally liable for the subject accident be entered in its place. 2. That the costs of this Appeal and that of the trial court be awarded to the Appellant. 3. Such further orders that this Honourable Court may deem fit to grant. The Submissions 29. In HCCA E052/2023 30. The appellant set down the issues for determination as:i. Ownership of Motor vehicle registration number KBR 544M/ZE 1912 ii. Liability and negligence iii. Quantum and damages 31. On the 1st issue – the appellant relies on section 8 of Traffic Act which stipulates that a person in whose name a Motor Vehicle is registered is deemed to be the owner unless proven otherwise. That since the appellant denied ownership, then the respondents had the onus as per S. 107 of the Evidence Act, to prove the same. 32. The appellant cited Moses Ndungu vs. Elijah Ndirangu Gatia [2014] eKLR where the court stated that “ The moment the defendant denied ownership of the motor vehicle the subject matter of the suit, the burden of proof shifted to the appellant to establish proof of ownership. A police abstract form cannot be used as evidence proving ownership of a motor vehicle. The appellant was also bound to tender credible evidence to prove that the appellant was the driver at the time of the accident or that the driver at the time of the accident was the respondent’s employee, agent or was under his direction.” 33. On liability and negligence, the appellant argues that the Respondent was an unlawful Passenger in Motor vehicle registration number KAU 261J – and that he significantly contributed to the accident. In addition, that the police did not complete the investigation to support the proposition for contributory negligence. the appellant relies on Felister Nduta Muthoni & Another Versus Attorney General [2004] eKLR 34. It is argued that the respondent testified that they were three people in the Motor vehicle – which was designed to carry two – meaning that someone did not wear a safety belt 35. On Quantum, it was submitted that the respondent did not prove his injuries he did not call the doctor to testify hence did not present the best evidence as per section 68 of the Evidence Ac. 36. On the authorities supporting quantum of damages, it was submitted that the trial court had not considered the authorities hence the excessive award. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 8

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37. The following authorities were cited Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR, where the plaintiff sustained multiple injuries and a fracture of the right tibia and fibula, the appellate court set aside an award of Kshs. 1,500,000 and substituted it with an award of Kshs. 300,000; demonstrating the court's approach to adjusting awards based on the extent of proven injuries and the credibility of the evidence presented. Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR, where the plaintiff sustained a comminuted fracture of the tibia and fibula, and the court set aside an award of Kshs. 800,000 and substituted it with an award of Kshs. 400,000, underscoring the necessity of aligning awards with the severity of the injuries and the supporting medical evidence. Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR, the respondent had suffered a fracture of the tibia and fibula bones of the right leg, a deep cut wound and tissue damage of the right leg, a head injury with a cut wound on the nose, blunt chest injuries, and soft tissue injury on the lower left leg. The High Court set aside the award of Kshs. 600,000 and replaced it with Kshs. 400,000, highlighting the court's discretion in adjusting awards to reflect the proven extent of injuries The Respondents 38. 39. The respondent only set out 2 issues for determination:a. Whether the trial court erred in finding the respondent had proved its case b. Whether the trial court erred by awarding Ksh. 800,000/= in General Damages On the 1 st issue the respondent reiterated the respondents witness statement, the testimonies of the Police Officer; That the appellant did not call any eye witness to rebut the evidence of the respondent and the respondent’s witnesses. Regarding ownership of the motor vehicle, it was submitted that the police abstract supported the claim that the Motor vehicle belonged to the appellant – That the insurance policy issued by AMACO was in the name of the 1st Defendant – The respondent relied on the Trial Courts observation thus; “ The plaintiff produced the police abstract that indicated that the beneficial owner of the motor vehicle was Blackstar Ventures Limited and a copy of records that indicated that the registered owner of the vehicle is Abdi Gani Ahmed. Although, the defence contended that the 1st defendant had been wrongly enjoined into the suit, it is clear from the evidence that the 2nd defendant is one of the directors for the 1st defendant. I thus find that the plaintiff has substantially proven that the defendants are the owners of the subject vehicle. From the foregoing, I am of the considered view that the plaintiff has ascertained that the driver of the motor vehicle KBR 544M was to blame for the accident. Th said driver having been an agent of the defendants herein, the defendants are he vicariously liable. Therefore, I do find the defendants jointly and severally 100% liable for the accident https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 9

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40. On the issue of proof the respondent relied on Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] eKLR where the court sstated as follows: “ In Civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.” 41. On Quantum ,it was submitted that according to Dr. Mwaura, the respondent sustained a fracture of the Tibia as well as soft tissue injuries – with a 5% physical impairment. That in the lower court the respondent submitted for Ksh. 1,000,000/= and was awarded Ksh. 850,000/= In his submissions, the Respondent relied on i. Joseph Musee Mua Vs Julius Mbogo Mugi [2013] eKLR ii. Francis Ndungu Wambui & 2 Others Vs VK(Minor Suing through next of friend and mother MCWK) [2019]eKLR In HCCA E076/24 The appellant’s submissions 42. 43. The appellant set out the issues for determination: Whether; i. The award of General Damages was excessive and unjustified ii. The trial Court erred in failing to consider contributory negligence by the respondents iii. The trial Court erred in dismissing the case against the 2 nd respondent -( Response to cross appeal) On the 1 st issue the appellant submitted that the award of Ksh. 1,200,000/= for soft tissue injuries was excessive. The appellant cited from the judgment of the trial court where it had stated; "From the foregoing I find that the plaintiff suffered soft tissue injuries. Having considered the authorities relied on by the parties in respect to quantum… and having taken into account the nature of the injuries sustained herein together with the economic times, I do award Kes. 1,200,000/= in general damages.” 44. It is submitted that the trial court failed to align the award to the established principles for the assessment of General Damages as set out in Kigaraari v Aya (1982 88) 1 KAR 768, which was cited to the court and where the Court of Appeal held: “ Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.” 45. That the court ignored authorities – Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR, where a comparable award was reduced to Kshs. 400,00: Daniel Otieno Owino v Elizabeth Atieno Owuor [2020] eKLR, where the High Court awarded Kshs. 400,000 for multiple fractures and head injuries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 10

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46. The appellant relied on Section 35 (1) of the Evidence Act – That the trial court had failed to establish the veracity of the medical reports – and admitted them without having the makers prove them ; and section 48(1) of the Evidence Act 47. On issue of Contributory Negligence – the appellant relied on section 98(1) of the Traffic Act – to argue that the respondent was not licensed to act as a conductor; that the respondent was the 3rd passenger and could not have worn a safety belt -; and section 100(2) of the Traffic Act & Felister Nduta Muthoni and Another Versus Attorney General [2004]eKLR 48. On contributory negligence, the Court was urged to find that the respondent was 30% liable 49. Responding to the cross appeal the appellant argued there was no error in the finding that the 1st defendant was not liable – that the trial court evaluated the evidence and found that no nexus had been established between the 1st defendant and the accident – That the mere fact that it was alleged that the 1st defendant had taken out insurance for the Motor Vehicle was not proof of beneficial ownership or legal responsibilities. The appellant asserts that courts have held that liability cannot emanate from the insurance policy without citing any authority for the proposition. It cites Salomon versus Salomon and Co. Limited [ 1897] AC 22 on the distinct legal entity of a Limited Liability Company. That the 2nd defendant (appellant) is a director of the 1 st – defendant and the company cannot be held liable for his actions 50. He cited Musa Nyamawi Mbwana VERSUS Nairobi City Counsel [2004]eKLR for the proposition that liability for Acts of an agent arises only where there is clear proof of an agency relationship and that the tortious act was committed within the scope of that relationship. That no evidence was provided to establish that there was any relationship between the 1st defendant and the driver of the said motor vehicle; that the ownership of the Motor Vehicle was not supported – the appellant relies on Moses Ndungu Vs Elijah Ndirangu Gatia [2014]eKLR – 51. On the duty of the plaintiff to prove the ownership of the Motor vehicle it was submitted that the Police Abstract could not be proof 52. It is submitted that the cross appeal has no merit at all. It is sought that the award of Ksh. 1,200,000/ = be substituted with the sum of Ksh. 400,000/=, and contribution of negligence be 30% 53. On the cross appeal the respondent (plaintiff) Daniel Njoroge Kimemia submitted in the cross appeal – He set out issues for determination 54. i. The appellant’s appeal is proper ii. The trial court erred in failing to consider contributing negligence by the 1st respondent (Plaintiff) iii. The award of general damages was excessive and unjustified. He began by submitting that the appeal was not proper for lack of a degree from the Right of Appeal. He submitted that the appeal was incompetent has there was no decree. He cited Trans Mara Sugar Co Ltd v James Omondi Obudho [2020] eKLR: The court stated I will also add my voice on the subject. First, from the reading of Section 65(1) of the Act it is the decree or part thereof that is appealed from the subordinate court to the High Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 11

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Kakamega Election Petition Appeal No. 3 of 2018, Elvis Anyimbo Sichenga v Orange Democratic Movement & 4 Others (2016) eKLR “ What then am I saying about the failure by the appellant to attach a certified copy of the decree appealed from?" I am saying that that omission is not a mere technicality for if it were so, the drafters of the rules would not have made its attachment a mandatory requirement. I am therefore satisfied that the applicant has satisfied this court that the said omission is fatal to the petition and I so find.” 55. Regarding the contributory negligence of the plaintiffs the respondent reiterates the submissions by the appellant – and cautions the court not to be so persuaded as the provisions of the Traffic Act – Section 98 (1) on the licensing of the conductor and Section 100 (2) on the use of safety belts – because none of these can be shown to have contributed to the way the motor vehicles were being driven. 56. On the dismissal of the case against the 1st defendant, it is argued that the Trial Court was in error – that there was, before the judgment – an application to dismiss the suit which the same Trial court dismissed – then the same court proceeded to contradict itself by dismissing the suit. 57. It is submitted that the DW1 stated that the 2nd defendant took out an insurance policy in the name of the 1st defendant – without any reason. That this is laughable – and the responded raises the question, why would the 1st defendant insure a motor vehicle it had no interest, and the 1st defendant did not take any action. 58. On the General damages award – the responded conceded that the trial court was in error – that the respondent had pleaded for Ksh.700,000/= yet the trial magistrate proceeded to award Ksh.1,200,000/ = - evidence that the court had not read the pleadings. It is sought that general damages can be reduced to Ksh.700,000/=. Analysis and determination: 59. I have set out the evidence and submissions. For a 1st appeal, this court is required to re-evaluate the evidence afresh and draw its own conclusions – see Selle & Another –vs- Associated motor Board Co. Ltd & others (1968)EA 123. 60. The issues that arise for determination cut across both matters and the cross appeal. This is because the plaintiffs’ case is that they were in the same motor vehicle and are suing the same defendants. 61. For this reason, I have consolidated the appeals and it is evident that the suits ought to have been consolidated in the subordinate court. 62. Black's Law Dictionary, 8 th ed ., defines consolidation as: “...to combine, through court order, two or more actions involving the same parties or issues into a single action ending in a single judgment, or sometimes, separate judgments… 63. The Supreme Court in ”Law Society of Kenya v Centre for Human Rights and Democracy & 12 others [2014] KESC 29 (KLR) had this to say on the issue The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. In the matter at hand, this court would have to be satisfied that the appeals sought to be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 12

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consolidated turn upon the same or similar issues. In addition, the court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed. 64. In Kamau v Njoroge [2024] KEHC 1953 (KLR) the court dealing with the issue whether or not to consolidate had this to say The law governing the consolidation of suits is founded under Section 80(h) of the Civil Procedure Act and Order 11 Rule 3(1)(h) of the Civil Procedure Rules. In consolidating suits, the Civil Procedure Rules mandate courts to be guided by the following three parameters:- 65. a. Do the same question of law or fact arise in both cases? b. Do the rights or reliefs claimed in the two cases or more arise out of the same transaction or series of transactions? c. Will any party be disadvantaged or prejudiced or will consolidation confer undue advantage to the other party? The court also cited Prem Lala Nahata & Another vs Chandi Prasad Sikaria [2007] 2 Supreme Court Cases 551, the India Supreme Court held:It cannot be disputed that the Court has power to consolidate suits in appropriate cases…. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in court and it appears to the court that some common questions of law or fact arises in both or all the suits or that the rights or relief claimed in the suits are in respect or arise out of the same transactions or series of transactions; or that for some other reasons it is desirable to make an order consolidating the suit. 66. The court then stated It is therefore clear that the purpose of consolidation of suits is to save costs, time, speed up trial, eliminate duplicative trials involving the same parties, issues and evidence, for efficient and proper administration of justice and expeditious disposal of matters, consequently promoting judicial economy so long as it is not prejudicial to any of the parties (emphasis mine) 67. The manner in which the cases herein were handled and failure to consolidate the two ended up in an outcome that embarrassed the court. The two trial magistrates arrived at diverse findings on liability and quantum on the same facts – for the same accident with the same parties. The same ought to have been consolidated or one of them used as the test suit for liability. What happened in this matter was embarrassing and the Head of station ought to have given the appropriate guidance 68. Having said that the issues are: Whether the appeal E076/2024 is competent for warrant of a decree. 69. I have to deal with this right here. There was indeed a decree issued for purposes of the appeal and it was on record. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 13

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Whether the defendants were liable for the accident? 70. Who is liable between the 1st and the 2nd defendant? In making such a determination we need to examine whether the Plaintiffs discharged their burden of proof on a balance of probability to prove ownership of the motor- vehicle. The burden of proof is placed upon the Plaintiff and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- 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 more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 71. Section 107 and 108 of Evidence Act Cap 80 provides who bears the burden of proof in a case. Those two sections provide“ 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. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 72. The evidence on record is that this accident involved three motor vehicles. The abstract dated 18.5.2021 shows the details of motor vehicles and their insurance and details of their trailers. The abstract says that one Daniel Njoroge Kimemia reported an accident which occurred on 14.5.2021 involving motor vehicle registration number KAU 261J, KDC 186G/2G 4360 and KBR 544M/ ZE1912 as “C/O Black Star Ventures C/O 76828-0062, NAIROBI.” Name of Insurance Company – African Merchant. The investigating officer is PC Kithinji. Result of investigation – Matter referred to insurance. The O.B. reference is 16/14/5/2021. The ownership of the m/v KBR was admitted by the 2nd defendant. The plaintiffs did not establish the ownership of the m/v they were allegedly travelling in. 73. The police abstract only lists the name of Daniel Njoroge as the person injured. It states; Daniel Njoroge pass/grievous harm. Witnesses are recorded as James Kioko, Peter Muthioma and PC. Kithinji. I have searched through the record of appeal in both files but I have not found any police abstract with the name of Peter Muthioma recorded as a passenger, or as a victim or the injury that he allegedly sustained. 74. Other than the oral evidence of both Daniel and Peter that they were both passengers in Mv KAU 261J there no evidence from the police or the drivers of any of the other m/vehicles to support that. 75. In addition, the police abstract which Daniel relies upon does not state in which of the three m/vehicles he was in at the time of the accident. The defendants raised this issue. That the two did not state where they were seated in the m/vehicle at the time of the accident. Was it at the front or the back or where? There is therefore no evidence that Daniel or Peter was a passenger in KAU or KBR or KDC. . https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 14

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76. Each of the plaintiffs’ case is based on the alleged fact that they were passengers in KAU 261 J – this was denied by the defendants. Each of them had the onus to prove that they were in that motor vehicle. The defendants they sued could not have known this fact. The only person who could have established this fact is the driver of the m/registration no KAU 261J. The plaintiffs did not sue the owner of m/v registration no. KAU 261J. They did not call the driver as a witness. 77. It is noteworthy that the investigating officer told the court the names of the drivers of each of the motor vehicles – however – none of those names appears on the police abstract as the drivers of the said motor vehicles. 78. In these circumstances the plaintiffs have not established that they were passengers in the m/v KAU 261 J 79. The investigating officer told the court that following his investigations he blamed the motor vehicle KBR for the accident. However, in the police abstract it simply states – matter referred to insurance. This officer did not produce the O.B. entry neither did he produce the sketch map/plan of the scene of the accident. He did not also produce any statements of witnesses . There was nothing before the trial courts to support his claims that he visited the scene, that he drew a sketch plan or that he recorded any witness statements. His claim that his investigations led him to that conclusion is not supported by any evidence and in any event the police abstract states the issue was referred to insurance. 80. Regarding what actually happened with regard to Peter at the scene the investigating officer and Peter gave contradictory evidence . He told the court upon arrival he found that the injured had been taken to hospital but Peter was there with minor injuries and he advised him to go to hospital, meaning that Peter took himself to hospital. However, Peter told the court he collapsed at the scene and lost consciousness after the accident – and only came to and found himself at the hospital. 81. Peter claimed to have hired the lorry to transport his hay from Mtito Andei to Masii but produced no evidence to support that claim. He did not call the driver of KAU to support his claim – yet he was not blaming him for the accident. Similarly for Daniel – he claimed that he was called for “squad” meaning that he was called upon by the driver to work as his conductor that day – this was denied – he needed to provide evidence of this arrangement. 82. The plaintiff/ respondents’ argument that their testimony was not challenged cannot stand because the defendants could not have challenged this evidence. 83. I find that the plaintiffs/ respondents did not prove that they were passengers in KAU 261J. Neither did they prove that the 1st defendant was the beneficial owner of the KBR. The fact that the 2nd defendant was the registered owner was admitted by the 2nd defendant. 84. According to the plaint the plaintiffs averred that the defendants were the registered/beneficial owners of the motor vehicle at the material time. The evidence is clear, and it is admitted by the 2nd defendant that he was the registered owner of the motor vehicle KBR and the material time. The plaintiffs only relied on the police abstract and did not prove any other basis of legal interest in the motor-vehicle on the date of accident as against the 1st defendant. The plaintiffs were under an obligation to prove that the 1 st defendant had legal or beneficial interest in the motor-vehicle at the date of the accident by producing proof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 15

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What evidence is on record that the 1st defendant was the beneffcial owner of the motor vehicle? 85. According to the trial court in MCCC No.E032/2022 found: “ The plaintiff produced the police abstract that indicated that the beneficial owner of the motor vehicle was Blackstar Ventures Ltd, and a copy of records that indicated that the registered owner of the vehicle is Abdi Gani Ahmed. Although, the defence contended that the 1st defendant had been wrongly enjoined in to the suit, it is clear from the evidence that the 2nd defendant is one of the directors for the 1st defendant. I thus find that the plaintiff has substantially proven that the defendants are the owners of the subject motor vehicle.” 86. The trial court in MCCC.E033/2023 found:“ DW1 testifies that the 1st defendant was not the registered or the beneficial owner of motor vehicle registration No. KBR 544M/ZE1912. There is no other evidence availed to blameworthiness. I find that the plaintiff has proven its case on a balance of probabilities against the defendants hence I hold the defendant 100% liable. The 1st defendant having totally no interest in the KBR 544M/ZE1912 and having no control or any beneficial interest in the motor vehicle the case against the 1st defendant is hereby dismissed with no order as to costs.” 87. I have carefully considered the evidence on record. The police abstract and the plaint where it is to be filled owner of motor vehicle it is stated – C/O whose usual meaning is “care of”. Hence the police abstract does not anywhere on its face say that the 1st defendant is the beneficial owner of the motor vehicle KBR. 88. Regarding the alleged insurance policy: the same was denied by the defendants, The police abstract in the Record of Appeal and in the lower court files does not contain the alleged detail that the insured of the m/v KBR is Blackstar Ventures Ltd. The plaintiffs did not produce any document of insurance to establish that the 1st defendant appellant was the insured for m/v registration KBR. This allegation was denied by the 1st defendant appellant. It was upon the plaintiffs to produce evidence that indeed the 1st defendant appellant was the insured for m/v registration KBR. I did not find that detail in the police abstract in the record of appeal or the lower court files. Neither was the evidence produced in court as part of the annexures by the plaintiffs. The trial court that found in favour of the plaintiffs against the 1st defendant on lability relied on the police abstract. The document does not support that position. The only undisputed fact is that the 2nd defendant appellant is the registered owner of KBR. The fact of his being one of the directors of the 1st defendant appellant does not automatically make the 1st defendant appellant a beneficial owner. It was upon the plaintiffs to prove that fact. They did not do that . 89. It was argued that the court that dismissed the claim against the 1 st defendant s appellant was in error because it had dismissed an application seeking the dismissal of the case before the suit could be heard. That application was interlocutory and the court did not err in determining the matter after a full hearing. On General Damages and Quantum . 90. The plaints – both dated 14.1.2022 list the Particulars of the injuries sustained by the Plaintiff thus: 1) Fracture of the left tibia/fibula https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 16

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2) Left mid left tenderness 3) Tenderness, swelling and obvious deformity of the left leg 4) Right lower chest tenderness 5) Left shoulder tenderness with reduced range of movement. 91. The question that this begged was how is possible for 2 individuals could be in the same accident and sustain the exact same injuries. It is highly unlikely. 92. It is noteworthy that both trial magistrates used this list of injuries to determine the award of General Damages yet neither of the plaintiffs produced any medical evidence to prove that they had sustained the injuries as pleaded. The fact that the matters were heard by different courts separately made it not possible for the courts to notice this glaring anomaly but the medical evidence did not support the injuries as pleaded. Counsel for the plaintiffs / defendants did not raise the issue but I could not avoid the observation that the two plaints carried the exact same injuries for each. 93. It did not help that each plaintiff produced a medical report by Dr. G. K. Mwaura, which assigned the exact 5% disability for each for the same leg. 94. In MCCC.E032/2022 the court stated: “ The medical report by Dr. G.K. Mwaura dated 20.8.2021 confirmed the injuries. The Dr. classified the injuries as grievous harm….assessed permanent disability at 5% on left lower limb….” 95. The court in MCCC.E033/2022 stated. “ The plaintiff’s medical report by Dr. G.K. Mwaura dated 14.5.2021 confirmed the injuries. The doctor opined that the plaintiff had sustained fracture of the left tibia, swollen tendon occipital region, deep wound in left leg and fracture of the right iliac chest and was 5% incapacitated.” 96. The plaintiffs said they were initially treated at Sultan Hamud Hospital. The treatment notes filed in the lower court file, and in the record of appeal ( even on CTS ) are illegible. It is no wonder the trial courts did not speak to them. The same applies to the P3’s where it is evident where they were completed from . In addition, the doctor’s reports were also not signed. Other than the report from the doctor there were no supporting documents: in a case of fractures there would X- rays or X-ray reports, evidence of follow ups, receipts etc.. 97. A party is bound by its pleadings . 98. The allegations of injuries were also not proved., 99. Without proof there was no basis for the award of any damages. Conclusion and Final orders Having re-evaluated the evidence before me, the submission the authorities and the law find and I am guided by Mwangi -vs- Wambugu (1984) eKLR that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on misapprehension of evidence or where the court has clearly failed on some material point to take into account particular https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 17

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circumstances or probabilities material to an estimate of the evidence and Kiruga -vs- Kiruga & Anor (1988) KLR, 348 where the Court of Appeal observed; “ An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the Judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand. It is my finding that in this case each of the trial courts did not evaluate the evidence and hence arrived at erroneous findings of fact. 1. That the plaintiffs did not provide evidence that they were passengers in any of the motor vehicles during the accident that occurred on 14.5.2021 – and in particular, motor vehicle registration No.KAU261J. 2. The plaintiff Peter Muthioma was not listed in the police abstract as an as a passenger of any of the m/vehicles or one of the injured persons; there is no police abstract describing him as a passenger. He is listed as a witness. Had he been a passenger who had sustained injury nothing stopped the police from indicating him as such. 3. Daniel Njoroge is listed as a passenger who sustained injury – but it does not say in which motor vehicle he was passenger. 4. The plaintiffs having not sued the owners/driver of motor vehicle registration number KAU 261J, they did not the driver as a witness and absent the police officer’s testimony there was no other evidence ti support that claim and the court has no way of knowing whether or not they were indeed passengers in that motor vehicle. It is only the driver/owner of KAU who could have denied/conceded that they were passengers in that motor vehicle – the defendants/ appellants herein e had no obligation to respond to that fact. 5. The plaintiffs did not prove any legal or beneficial interest in the m/v KBR on the part of the 1st defendant or that the 1st defendant was the insured . To that end no liability can attach to the 1st defendant appellant. 6. While an accident happened, the evidence is that at least three m/vehicles were involved and without the other two, who were no sued it would be difficult to apportion liability on the 2nd defendant. This is because there was insufficient evidence that the KBR was wholly to blame for the accident. 7. The medical evidence did not support the injuries pleaded. The same was doubtful as it was not signed. 8. In the foregoing circumstances I am of the view that the plaintiffs did not prove their case in the subordinate courts. I allow each of the appeals, I dismiss each of the suits with costs to the defendants. 9. Orders accordingly JUDGMENT DATED, SIGNED AND DELIVERED THIS 28TH APRIL 2026 MUMBUA T MATHEKA JUDGE CA Charity https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 18

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For the appellants Mr. Maranga For the respondents Mandela holding brief for Lubanga Signed By/for: LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA MAKUENI HIGH COURT HIGH COURT DIV DATE: 2026-04-28 16:00:21 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6449/eng@2026-04-28 19

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