United Millers Co. Ltd v Vincent Ochieng

any way. In the alternative, the appellant averred that, if any accident occurred on or about the 20 th October 2023 as alleged by the respondent, then the same was wholly caused and/or substantially contributed to by the respondent as the owner and rider of the motorcycle. The appellant supplied particulars of negligence alleged by it at paragraph 6 of the Defence. [3] The appellant further denied that the respondent suffered injuries or that he suffered loss or incurred expenses as alleged or at all. [4] Upon hearing the evidence presented before him by the parties, the learned magistrate found the appellant 100% liable to the respondent for his pain, suffering and loss of amenities. The lower court proceeded to assess general damages at Kshs. 850,000/= and entered judgment in the respondent’s favour in that sum together with interest and costs. [5] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal dated 7th October 2024 on the following grounds: [a] That the learned magistrate erred in fact and in law by awarding inordinately high general damages to the respondent. [b] That the learned magistrate erred in fact and in law by failing to consider the appellant’s submissions and authorities on quantum hence arriving at an erroneous decision. 2|Page HCCA NO. E062 OF 2024 JUDGMENT

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[c] That the learned magistrate erred in fact and in law by awarding general damages that were so inordinately high as to constitute a miscarriage of justice in the circumstances of the case. [d] That the learned magistrate’s judgment was wholly no supported in law by evidence tendered in court by the parties. [6] Accordingly, the appellant prayed that the appeal be allowed; that the award by the lower court of general damages be set aside and a fresh assessment of damages be made by this Court in line with case law. The appellant also prayed for costs of the subordinate court and of this appeal. [7] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on the 30th September 2025. In the appellant’s submissions dated 16 th February 2026, it proposed the following issues for determination: [a] Whether the learned trial excessive damages on quantum? magistrate awarded [b] Whether the appellants should be awarded costs of the subordinate court and the appeal herein? [8] On the basis of the injuries allegedly suffered by the respondent, the appellants submitted that the lower court’s 3|Page HCCA NO. E062 OF 2024 JUDGMENT

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award of Kshs. 850,000/= was excessive. It contended that the trial court misdirected itself in awarding such an amount. It further submitted that the learned magistrate took into account irrelevant factors or left out relevant factors when assessing the damages. The appellant also contended that learned magistrate failed to consider the its submissions and authorities on quantum when assessing the damages. [9] Further to the foregoing, the appellant submitted, although an award of general damages is a matter of the court’s discretion, it is trite that comparable injuries should as far as possible attract comparable awards. In support of this argument, the appellant relied on the decision of the Court of Appeal in the case of Tayab v Kinau [1983] KLR,114 at 115. It urged the Court to consider the award made in the following cases for comparable injuries: [a] Atunga v Mogambi [2022] KEHC 9854 (KLR) in which the plaintiff sustained fractures of the tibia and fibula bones; dislocation of the right hip joint; multiple lacerations on the lower limb; bruises, with multiple cut wounds, on the upper limbs; dislocation of the right shoulder; chest trauma; and bruises on the frontal part of the head, and was awarded Kshs. 550,000/= as general damages; [b] Mwavita Jonathan v Silvia Onunga [2017] eKLR, in which the Court of Appeal made an award of Kshs. 4|Page HCCA NO. E062 OF 2024 JUDGMENT

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400,000/= in a case where the claimant sustained blunt chest injury, dislocation of the right knee joint, sprains at the cervical spine and commuted intertrochanteric fracture of the hip. [c] Jitan Njaga v Abidnego Nyandusi Oigo [2018] eKLR, the appellate court reduced an award of Kshs 1,000,000 to Kshs 450,000/= for a respondent who sustained lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back, blunt trauma to the chest, compound fracture of the right tibia/fibula amongst other injuries. [10] The appellant urged the Court to note that the authority it placed before the trial court, namely, Akamba Public Road Service v Abdikadir Adan Galgalo [2016] eKLR, involved claimants who sustained substantially more severe injuries, including fractures right tibia and fibula bones. Yet, even in those markedly more serious cases, the courts assessed general damages at 500,000/=. Therefore, for the respondent’s injuries, the appellant proposed that an award of Kshs. 500,000/= as general damages would adequately compensate the respondent for the injuries sustained. [11] On whether the appellant should be awarded costs of the subordinate court and the appeal herein, the appellant submitted that, should its submissions for reduction of the award be made, the Court should consider awarding it costs of the appeal, as costs follow the event. 5|Page HCCA NO. E062 OF 2024 JUDGMENT

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[12] In response to the appellant’s submissions, the respondent relied on his written submissions dated 25 th August 2025. He proposed the following issues for determination: [a] Whether the learned magistrate erred in law and fact by relying on extraneous issues as a basis of his determination on liability. [b] Whether the award of general damages made to the respondent herein was manifestly and inordinately excessive in the circumstances. [c] Whether the learned magistrate acted in error by failing to properly evaluate the evidence on record, thus reaching erroneous decision. [d] Whether the learned magistrate erred by misapprehending the principles applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice. [13] The respondent reiterated the injuries suffered by him and the medical evidence presented before the lower court. He urged the Court to find that the evidence adduced by him was not controverted by the appellant. Accordingly, the respondent urged the Court to uphold the lower court’s award of Kshs. 850,000=. He relied on the case of James Gathirwa Ngungi v. Multiple Hauliers (EA) Limited & another [2015] eKLR in which the plaintiff suffered a compound comminuted 6|Page HCCA NO. E062 OF 2024 JUDGMENT

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fracture of the right tibia, compound comminuted fracture of the right fibula, fracture of the left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations and pathological/re-fracture of the right leg and the Court awarded him Kshs. 1,500,000/= in general damages for pain and suffering. [14] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that: "...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of 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..." [15] With the foregoing principles in mind, I have given careful consideration to the evidence placed before the lower court in the light of the pleaded injuries. The respondent testified before the lower court on 9th July 2024 as PW2. He adopted his witness statement dated 4th January 2024 as part of his evidence in chief. He stated that he is a boda boda rider and that on the 20 th 7|Page HCCA NO. E062 OF 2024 JUDGMENT

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October 2023 he was involved in an accident at about 9.00 hours while riding his motorcycle along the Homa Bay-Kendu Bay Road at Makongeni area. [16] The respondent also testified that he sustained serious injuries for which he was admitted at Homa Bay County Teaching and Referral Hospital for three days. He listed his injuries as follows: [a] Fracture of the left fibula bone [b] Deep cut wound on the left knee joint [c] Blunt chest injury [d] Tender/swollen left injury [e] Dislocation of the left knee joint [17] He produced several documents to support his claim which were marked Exhibits I to VI. [18] The respondent called PC Alfred Kamen (PW1), a police officer attached to Homa Bay Traffic Base. He confirmed that an accident occurred on the 20 th October 2023 at 9:00 Hours along the Homa Bay-Kendu Bay road at the Makongeni area. PW1 further stated that the accident involved Motor Vehicle Registration No. KDK 073G, Make Isuzu NQR Lorry, which was being driven by Charles Otwoma Ouma and Motorcycle Registration No. KMDC 100Q, Make Boxer, whose rider was the respondent, Vincent Ochieng. 8|Page HCCA NO. E062 OF 2024 JUDGMENT

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[19] According to PW1, the lorry was being driven from Kendu Bay direction, and that on reaching Makongeni area, it turned to the left side to access a parking area outside a supermarket. In the process, the lorry hit the motor cycle that was parked outside the supermarket and thereby injured the respondent. He added that the respondent was rushed to Homa Bay County Teaching and Referral Hospital for treatment. He produced the Police Abstract dated 27th October 2023 as an exhibit before the lower court. [20] The appellant opted to call no witness. Instead it relied on its Bundle and List of Documents which were produced by consent as defence exhibits. The parties thereafter filed their written submissions which formed the basis of the lower court’s judgment. [21] Needless to mention that the legal burden of proof was on the respondent to prove his allegations of negligence on a balance of probabilities. 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. [22] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) HCCA NO. E062 OF 2024 JUDGMENT (Judgment) held: 9|Page

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“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…” [23] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that: “The burden of proof is placed upon the appellant 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.” [24] Consequently, having alleged negligence at paragraph 4 of their Plaint, it was for the respondent to prove their allegations on a balance of probabilities. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR: 10 | P a g e HCCA NO. E062 OF 2024 JUDGMENT

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“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…” [25] From the account presented by the respondent and PW1, it is Plaint that the allegations of negligence against the appellant’s driver was proved on a balance of probabilities. It has often been said that accidents do not just happen. The respondent had parked his motor cycle outside a supermarket. The appellant’s driver turned left to park when he knocked the respondent’s motor cycle and thereby occasioned him the injuries complained of. It is manifest therefore that the appellant’s driver did not keep a proper look out or exercise caution before turning left to access the parking area. [26] The respondent’s evidence was not rebutted by the appellant. Although the appellant filed a written statement by the driver, Charles Otwoma Ouma, the driver was not called to testify and prove the allegations of negligence made by the appellant in its Defence. Instead the appellant opted to rely on its written submissions, yet it is now trite that submissions cannot substitute for evidence. The point was made by the Court of Appeal in Daniel Toroitich Moi v Stephen Muriithi & Another [2014] eKLR that: "...Submissions cannot take the place of evidence. The 1 st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties' "marketing language", each side 11 | P a g e HCCA NO. E062 OF 2024 JUDGMENT

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endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all." [27] Therefore, on a balance of probabilities, the evidence on record established that the accident was occasioned by the sole negligence of the appellant’s driver. In Michael Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR, the Court of Appeal quoted with approval the following passage from the judgment of Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681: “To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause…” [28] On quantum, it is useful to bear in mind the caution expressed in H. West & Son Ltd v Shephard [1964] AC 326, that: "...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment." 12 | P a g e HCCA NO. E062 OF 2024 JUDGMENT

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[29] The Court of Appeal restated this principle thus in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited [2015] eKLR: "As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court 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 high that it must be a wholly erroneous estimate of the damages." [30] As has been noted herein above, the lower court awarded the respondent Kshs. 850,000/= as general damages for his injuries. The award, naturally, was premised on the nature of the respondent’s injuries. The injuries as pleaded and proved were: [a] Fracture of the left fibula bone [b] Deep cut wound on the left knee joint [c] Blunt chest injury [d] Tender/swollen left injury [e] Dislocation of the left knee joint [31] The principle reiterated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR, is that comparable injuries ought to be compensated by comparable awards. It expressed itself thus: 13 | P a g e HCCA NO. E062 OF 2024 JUDGMENT

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“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” [32] Accordingly, I have taken into consideration the respondent’s injuries as against the following comparable authorities: [a] Akamba Public Raod Services v Abdikadir Adan Galgalo [2016] eKLR an amount of Kshs. 500,000/= was awarded for pain, suffering and loss of amenities for a respondent who had sustained a fracture of the right tibia bone among other injuries. [b] Ann Namulembo Nyando v Mungai Mwangi & another [2019] eKLR in which Kshs. 500,000/= was awarded as general damages for pain, suffering and loss of amenities to an appellant who had sustained a compound fracture of the right tibia and fibula. [c] Zoa Taka Limited & another v Kyalo (Civil Appeal E011 of 2022) [2025] KEHC 1606 (KLR) (Civ) (27 February 2025) (Judgment) in which the plaintiff was awarded general damages in the sum of Kshs. 850,000/= for fracture of right malleolus bone and soft tissue injuries. The award was reduced on appeal to Kshs. 500,000/=. [d] Menengai Oil Refineries Limited v Bundi (Civil Appeal E039 of 2022) [2024] KEHC 11122 (KLR) (23 September 2024) (Judgment) in which the plaintiff sustained left medial malleolus fracture along with soft tissue injuries 14 | P a g e HCCA NO. E062 OF 2024 JUDGMENT

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and the appellate court awarded Kshs. 550,000/= as general damages. [33] In the premises, it is manifest that the sum awarded by the learned magistrate was on the higher side. It is equally manifest that the authority relied on by the respondent involved far more serious injuries and is therefore not comparable to the injuries sustained by the respondent herein. Going by the range of awards aforementioned, I would reduce the general damages awarded to the respondent to Kshs. 550,000/=. [34] In the result, I find merit in the appeal on quantum. The same is hereby allowed and orders granted as follows: [a] That the judgment and decree of the lower court on general damages be and is hereby set aside, and is substituted with an award of Kshs. 550,000/=. [b] That costs of the appeal be and are hereby awarded to the respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY, 2026 ………………………………… HON. OLGA SEWE JUDGE 15 | P a g e HCCA NO. E062 OF 2024 JUDGMENT

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