Daniel Musembi Musila v Jones Maithya Muindi & 1 other

comminuted left femur fracture. Multiple surgeries were performed and managed to save the left lower limb, but the right lower limb ended in a below knee amputation. Current mobility is by a wheel chair but there is hope of progressing to use crutches. 3. Dr. Mutunga who testified as PW1 produced the medical report dated 3/8/2020 at pages 305-306 of the record of appeal as PEXt.1 which medical report assessed the degree of permanent incapacitation at twenty percent (20%). He opined that the Appellant will incur Kshs.150,000/= inclusive of (surgeon fee, hospital stay and drugs) to be reviewed after every 10 years depending on activity. 4. The trial court’s proceedings show that the Respondent took out third party proceedings against CHARLES MATOLO MAINGI (1st third party) and PROTASIA MUENI MUEMA (2 nd third party) who were the owners of motor vehicle registration number KBM 436V at the time of the accident. The third parties failed to enter appearance and defend the third party proceedings. 5. The trial court’s judgment is at pages 469-472 of the record of appeal. On liability, the trial court noted that the owner of motor vehicle KBM was extremely negligent in leaving the motor vehicle stationary on the road without any indicator to other road users. He was wholly to blame for the accident. The trial court held that the 1st third party vicariously liable for the action of his driver. The 1 st 3rd Party did not challenge the evidence of the Appellant and the Respondent. The 1 st third party was held 100% liable. In conclusion the trial court entered judgement for the Appellant against the Respondent and for the Respondent as against the 1st 3rd parties. 6. On quantum, the Appellant’s counsel proposed Kshs.15,000,000/= as general damages and relied on the cases of Salim Kungu vs Kenya Ports Authority, Nairobi HCCC No. 1436 of 1998 (unreported) where the Plaintiff 2

page 2 of 19

had a permanent residual disability of 70%, Kshs.2.5 M was awarded on 21/11/2020 for pain, suffering and loss of amenities; in William M. Mutungi vs Samuel K. Nyutu & Anor, Nairobi HCCC No. 2735 of 1998 (unreported), the plaintiff was paralysed from the waist down. On 30/8/2001, Kshs.3M was awarded for pain suffering and loss of amenities; Caroline Endovella Mugayilwa vs Lucas Mbae Muthara, Civil Case No. 665 of 2007 Justice A. Mbogholi Msagha warded the Plaintiff Kshs.14,507,598/= for general damages; In Dorothy Kanyua Mbaka & Anor vs P.S. In-charge of the Department of Defence in the Office of the President & Anor, Meru HCCC No. 15 of 2004 Justice Makau on 02/4/2014 awarded each Plaintiff Kshs.10,000,000/= for general damages; In Mugure Edward Karega vs Yusuf Doran Nassir, Nakuru HCCC No. 157 of 2012, Justice H.A. Omondi on 16/05/2014 awarded Kshs.10,000,000/= for general damages; and In Antony Mbwabi Khayumba vs Laxamanbhai Construction Ltd, Civil Appeal No. 223 of 2016 the Plaintiff was awarded general damages for Kshs.10,000,000/=. 7. The Respondent’s Counsel proposed Kshs.250,000/= as general damages and relied on the case of T.A.M (Minor suing through her father and next of kin JOM) vs Richard Kirimi &Kinoti & Anor (2015) eKLR where the appellate court set aside an award of Kshs.160,000/= and substituted it with an award of Kshs.250,000/= to the Plaintiff who had sustained a fracture of the femur and the Plaintiff had healed well save for a permanent scar on the left thigh. 8. The trial court in its judgement only mentioned the case of Antony Mbwabi Khayumba vs Laxamanbhai Construction Ltd, Civil Appeal No. 223 of 2016 amongst those cited by the Appellant and stated that no copy of the cited authorities or citations were supplied. 3

page 3 of 19

9. The trial court relied on the case of EWO (Suing as next friend of a minor COW) vs Chairman Board of Governors Agoro Yombe Secondary School [2018] eKLR where Kshs.800,000/= was awarded to a Plaintiff who sustained a fracture of the femur and fracture of the tibia fibula. The trial court also relied on a more recent case of George William Awuor vs, Berly Awuor Ochieng [2020] eKLR where Kshs.1,200,000/= was awarded to a Plaintiff who had sustained a compound fracture of tibia fibula and a simple fracture of the femur. The trial court observed that in the present case the Plaintiff sustained much more severe injuries and awarded Kshs.1,500,000/= as general damages to the Appellant. Kshs.2,375,421/= was also awarded as special damages. The Total award was Kshs.3,875,421/= plus costs of the suit and interest. 10. Being aggrieved with the award on general damages, the Appellant lodged this appeal through the Memorandum of Appeal dated 19th April 2023.The Appellant raised the following grounds of appeal; 1) That the learned magistrate erred in law and in fact by failing to be guided by evidence law precedents when assessing general damages and came up with low and/or wrong figures and quantum. 2) That the award of general damages by the learned magistrate is bad in law, represents totally erroneous estimates and the award is manifestly too low in the circumstances of the case. 3) That the judgment of the learned magistrate is bad in law and fact and is against the weight of the evidence . Appellant’s submissions. 11. The Appellant argued grounds (1) and (2) together and submitted that the learned magistrate erred in law and in fact by failing to be guided by evidence, law and precedents when 4

page 4 of 19

assessing general damages and came up with low and/or wrong figures and quantum. That the award of general damages by the learned magistrate is bad in law represents totally erroneous estimates and the award is manifestly too low in the circumstances of the case. It was submitted that the trial court erred in fact and in law by failing to award a commensurate award of general damages to the injuries sustained by the appellant as pleaded and supported by medical evidence adduced as per PEXt.1. Further, it was submitted that the ward of Kshs.1,500,000/= was too low in the circumstances. 12. The Appellant implored this Court to review upwards the award of Kshs.1,500,00/= awarded as general damages by the trial court and to be guided by the following decisions in:a) IRERI V OWUOR (CIVIL APPEAL 82 OF 2019) (2022) КЕНC 15661(KLR) 25 November 2022 whereby on appeal the award of Kshs.3,209,050 was upheld in a similar circumstance whereby the appellant had sustained a 20% permanent disability. b) KURAWA INDUSTRIES LIMITED V DAMA KITI & ANOTHER (2017) eKLR Justice Chitembwe while considering an appeal on quantum had this to say; "The scenario given by the above awards show that damages for amputation of one's leg above the knee would range from Kshs.1.2 million to Kshs.2.5 million. The trial court awarded Kshs.2 million on June 26, 2015. I find that assessment not to be excessive. It is within the amounts awarded for similar injuries" c)COSMAS MUTISO MUEMA V KENYA ROAD TRANSPORTERS LTD & ANOTHER, Mombasa HCCC No. 285 of 2006; on 20.3.2014, Kshs.2.5 million was awarded by Kasango J. for amputation of one leg at the knee level. 5

page 5 of 19

13. The Appellant further submitted that the judgment of the learned magistrate is bad in law and fact and is against the weight of the evidence. On the issue of future medical expenses, the Appellant had pleaded for grant of future medical expenses in the prayers sought in the plaint at page 63 of the record of appeal. That, during trial PW1, who was the doctor, at page 393 of the record of appeal while making reference to the Appellant stated in evidence that; "He had healed surgical scar on left lower limbs, a rugged scar on left lower limb. An amputation stamp and would use an artificial left. He would further require further surgery to remove the metal implant on left thigh estimated at Kshs.150,000/= all inclusive artificial leg requires renewal after every ten years." 14. In addition, PW2 who is the Appellant herein in his evidence produced treatment notes from Kangundo District Hospital, treatment notes from Kijabe hospital, treatment notes from PCEA 3 Kikuyu hospital, treatment notes from Nairobi West Hospital and treatment notes from Kenyatta National Hospital as per the list of documents at page 68 of the record. Further, from the letter dated 5/2/2018 at page 77 of the record it was indicated that the Appellant had undergone amputation of the right leg below the knee in addition, the medical report dated 3/8/2020 formed the basis upon which the Appellant sought for future medical expenses both in the Plaint at pages 61-63 and during trial. The Appellant asks this Court to be guided by the decision of the Court of Appeal in Kenya Power & Lighting Company Limited v AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR) (8 October 2021) (Judgment) in reference to the decision in Tracom Limited & Another v Hassan Mohamed Adan (supra) stated as follows: 6

page 6 of 19

"28. As has been held above, in as much as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore suffices to give an estimate as the respondents did during their testimony." 15. In the same breath, the Appellant asks this Court to so find that the Appellant had pleaded and led evidence in support of the prayer for future medical expenses whereby PW1 quoted the figure of Kshs.150,000/= as the estimated sum required to conduct surgery so as to remove the metal implant on the left thigh. Further, it was the evidence of PW1 that the Appellant's artificial leg would require renewal after every ten years. The trial court in its judgment at page 469-473 remained silent on the prayer for future medical expenses despite the same having been pleaded and the Appellant leading evidence under the head of future medical expenses. The Appellant urges this Honourable Court to pronounce itself on the prayer for future medical expenses and to so award the Appellant the prayer for future medical expenses. Respondent’s submissions 16. The Respondent submitted that this appeal invites this court to correct a judgment that, though written with apparent diligence, betrays a fundamental contradiction that strikes at the very heart of justice. That a court cannot, in one breath, find the 1st Third Party 100% liable, and in the next, condemn the Respondent. To uphold such, would be to enthrone confusion and dethrone reason. It is submitted that on or about 14 th May 2015, at the grey hour of dawn (5:40 a.m.), along the Machakos-Kangundo Road, tragedy struck. 17. The Appellant, a lawful passenger aboard motor vehicle KBZ 197J, was suddenly thrust into calamity when that vehicle collided with motor vehicle KBM 436V, a large, heavy-duty 7

page 7 of 19

lorry that had been recklessly and dangerously abandoned across the tarmac and unmarked. 18. The lorry, belonging to the Third Parties was left lifeless in the darkness, without reflectors, hazard lights, or warning triangles. It was, in every sense, a mechanical tombstone planted in the path of unsuspecting motorists. The Respondent's driver, navigating the public road with diligence, was ambushed by this unlit obstruction. No human reflex could have prevented the collision; no foresight could have anticipated it. 19. That the evidence adduced was uncontroverted in that: fi The Appellant’s own witnesses confirmed the lorry had no warning indicators. fi The Respondent demonstrated beyond doubt that he was not the sole owner of KBZ 197J, but a co-owner among ten, jointly sharing its operations and responsibilities. 20. Despite these truths, the learned trial magistrate, in a moment of inexplicable contradiction, found the 1 st Third Parties 100% liable, then entered judgment against the Respondent/Defendant. It was an error so profound that it calls for urgent judicial redress. 21. The Respondent/ Cross Appellant following issues for determination: humbly frames the l. Whether the learned trial magistrate erred in law and in fact by entering judgment against the Respondent after expressly finding that the 1st Third Parties were 100% liable. 2.Whether the finding on ownership was contrary to Section 8 of the Traffic Act and to the uncontroverted evidence of shared ownership. 8

page 8 of 19

3.Whether the Plaintiff proved any negligence on the part of the Respondent/Defendant or his driver. 4.Whether the judgment of the lower court inconsistent, illogical, and legally unsustainable. was 5.Whether this Honourable Court ought to allow the Cross-Appeal and set aside the trial court's finding on liability. 22. On the issue of contradiction in the Judgment, the Respondent submitted that justice cannot thrive amidst contradiction. A court of law cannot declare one party entirely to blame, then proceed to punish another. Such reasoning is not justice it is judicial schizophrenia. 23. It was submitted that the learned magistrate in the first paragraph of page three of the judgment unequivocally held as follows:"The driver of motor vehicle KBM 436Vwas extremely negligent in leaving the vehicle on the road without indicators. He is wholly to blame for the accident. The lst 3rd Parties are hereby held 100% liable. " 24. Those words are as clear as daylight. They leave no room for speculation. Yet, in the very next breath, the same judgment condemns the Respondent, a party whom the court had already absolved. This was no clerical slip. It was a fundamental contradiction that renders the judgment legally void and logically absurd. Reference was made to the Court of Appeal in Mwanasokoni v Kenya Bus Service Ltd (1985] eKLR where it was stated that: "Where the trial court's findings are inconsistent and based on a misapprehension of the evidence, the appellate court must intervene. 9

page 9 of 19

25. This is the perfect embodiment of that principle. A judgment that both acquits and convicts cannot stand. It offends logic, reason, and fairness. A judgment of contradiction is like a house built on sand, ornate, perhaps, but doomed to collapse under the weight of scrutiny. To uphold that judgment would be to endorse judicial confusion dressed as reasoning an outcome this Honourable Court must decisively reject. 26. On Ownership under Section 8 of the Traffic Act, the Respondent submitted that the learned magistrate erred gravely in holding the Respondent liable as the "owner" of motor vehicle KBZ 197J without considering the rebuttable nature of Section 8 of the Traffic Act, Cap. 403. As per the record the motor vehicle was co-owned and the co-owners were obliged to indemnify the respondent against all of the liability including but not limited to general and special damages and expenses and costs incurred and to be incurred in defence of the suit instituted by the Appellant against the Respondent. Section 8 provides that registration is prima facie evidence of ownership, not conclusive proof. Reliance was placed in Nancy A. Neana v Abdi Ali [2010] eKLR, ownership is not limited to what appears on paper; it extends to beneficial and possessory interest. 27. That the Respondent produced irrefutable evidence showing that the said motor vehicle was jointly owned by ten individuals, each with a stake, each reaping benefits, and each bearing responsibility. To lay the entire burden upon one co-owner is not only unjust; it is absurd. It is to demand that one man bear the sins of nine others. Such reasoning belongs not in a court of law but in the realm of fiction. It is trite that liability follows ownership, but when ownership is shared, so too must liability be shared. The learned magistrate's finding of sole ownership against the Respondent was therefore manifestly erroneous and unsustainable in law. 10

page 10 of 19

28. On negligence, the Respondent submitted that the allegation of negligence against the Respondent's driver stands on nothing but air, unsupported, unsubstantiated, and utterly devoid of evidentiary foundation. Not a single witness claimed that he was speeding. Not a single witness alleged that he was reckless. No police report ever attributed fault to him. The record, when carefully examined, is silent, deafeningly silent on any act or omission that could, by any stretch of legal imagination, constitute negligence. 29. That the evidence before this Honourable Court paints a vivid and undeniable picture. The accident occurred in the early hours of dawn at approximately 5:40 a.m., when darkness still cloaked the earth and visibility was perilously low. The Respondent's driver was lawfully on the road, proceeding with caution, when he was suddenly confronted without warning, without light, without even the faintest indication by a massive, unlit lorry that had been abandoned across the roadway like a death trap awaiting its victim. 30. That in such a moment, what could any mortal man have done? Perform a miracle? Invoke divine intervention? The law, has never demanded omniscience from those who drive upon our roads. It demands only prudence, the conduct of a reasonable man faced with ordinary perils, not extraordinary ambushes. 31. The cornerstone of tortious liability is proof of negligence. The burden of that proof rests, immovably and unequivocally, upon the shoulders of the Plaintiff. As the Court so eloquently stated in Jamal Ramadhan Yusuf & Another v Ruth Achieug Onditi & Another [2010] eKLR that: "The mere occurrence of an accident does not raise a presumption of negligence. He who asserts must prove." 11

page 11 of 19

32. It was submitted that in this case, the Appellant has proved nothing absolutely nothing to sustain the weighty accusation of negligence. The evidence, on the contrary, was clear and overwhelming: fi The lorry, registration number KBM 436V, had been abandoned partly on the road, without hazard lights, reflectors, or warning triangles. fi The collision occurred before sunrise, at 5:40 a.m., in conditions of poor visibility. fi The Respondent's driver was lawfully driving, sober, and careful, yet had no conceivable opportunity to avert the tragedy that unfolded. 33. That even the Appellant's own witness, under the cleansing light of cross-examination, conceded that the lorry had no warning indicators, and that the driver of motor vehicle KBZ 197J could not possibly have seen it in time to avoid collision.To expect otherwise to demand that the Defendant's driver should have somehow anticipated and avoided an invisible obstruction in total darkness would be to impose upon him a standard of divine omniscience, not human reasonableness. The law does not require prophecy. It requires prudence. That it bears emphasis that no traffic charges were ever preferred against the Defendant's driver. The police report squarely blamed the lorry's driver. There was no evidence, no testimony, no inference pointing to any act of negligence by the Defendant's driver. 34. Accordingly, the Respondent submitted that the finding of liability against the Respondent was a manifest error, an error so glaring, so indefensible, and so inconsistent with the evidence that it cries out for appellate correction. Justice demands no less. 12

page 12 of 19

35. In the circumstances, the Respondent / Cross-Appellant humbly, solemnly, and passionately prays that this Honourable Court be pleased to: 1.Dismiss the Appeal in its entirety with costs, for it is an edifice built on sand and sustained only by illusion; 2.Allow the Cross-Appeal in full, as it stands firmly upon the pillars of evidence, statutory law, and judicial precedent; 3.Set aside the judgment of the Chief Magistrate's Court in Machakos CMCC No. 272 of 2018 to the extent that it attributes liability to the Defendant / Cross-Appellant, for that finding is unsupported, illogical, and unjust; 4.Substitute the same with a finding that the 1 st Third Parties were wholly, exclusively, and incontrovertibly liable for causing the accident, their recklessness being the solitary engine of the tragedy; 5.Award costs of the Appeal and of the trial court to the Respondent / Cross-Appellant, for he should not suffer the financial burden of defending against a baseless appeal; and 6.Grant any further orders or reliefs that this Honourable Court may deem just, fit, and necessary to uphold the purity of justice and restore coherence where confusion had taken root. Analysis and Determination 36. I have carefully considered the record, the appeal, the crossappeal and the Parties’ advocates written submissions to the appeal. The Appellant seems to be challenging the award for general damages for pain, suffering and loss of amenities which they assert to be too low and the failure by the trial court to award future medical expenses whereas the Respondent faults the trial court for entering judgement 13

page 13 of 19

against it having found the 1st 3rd party 100% liable in negligence. This court will therefore consider whether the said general damages which were for Kshs.1,600,000/= should be disturbed and increased and whether future medical costs should be awarded as sought by the Appellant in the appeal. The court will also consider whether the trial court’s finding on liability as against the Respondent should be disturbed and the appeal dismissed as sought in the cross-appeal. Appellant’s Appeal on quantum 37. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. 38. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus; “The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”. 39. The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the 14

page 14 of 19

economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). 40. Having given due consideration to the injuries sustained by the Appellant, I find that the cases relied upon by the trial court being EWO (Suing as next friend of a minor COW) vs Chairman Board of Governors Agoro Yombe Secondary School [2018] eKLR where Kshs.800,000/= was awarded to a Plaintiff who sustained a fracture of the femur and fracture of the tibia fibula and George William Awuor vs. Berly Awuor Ochieng [2020] eKLR where Kshs.1,200,000/= was awarded to a Plaintiff who had sustained a compound fracture of tibia fibula and a simple fracture of the femur to have less severe injuries that are not comparable to those sustained by the Appellant herein. In addition, in the said case, judgement was delivered in the years 2018 and 2020 whereas in the instant case the judgement was delivered in 2022 almost 4 and 2 years after. I find that the said cases were not a perfect comparison and proper guide to the case at hand. 41. Having given due consideration to the injuries sustained by the Appellant, I find the following more recent authorities to be more comparable on the aspect of general damages in this case :fi In Hussein v Janji (Civil Appeal E121 of 2023) [2023] KEHC 27379 (KLR)(20 December 2023) Judgment), the appellate court set aside the award of Kshs.3,000,000/= and substituted with a sum of Kshs.1,400,000/= where the Plaintiff sustained Communited and displaced fractures of the proximal left femur, Segmented and displaced fractures of the proximal right femur, Fracture/dislocation of the left elbow, Fracture of the right distal radius (colles), Fracture/dislocation of the distal inter-phalangeal joint of the right middle finger, Deep massive 15 cm long cut 15

page 15 of 19

wound obliquely across the left knee, Deep 8 cm long cut wound on the right knee joint, 4x2 cm laceration on the left thigh, Several lacerations on the right thigh, A 2 x cm laceration on the left forehead. fi In Wanjiru v Kiarie & another (Civil Appeal E734 of 2022) [2025] KEHC 356 (KLR) (Civ) (23 January 2025) Judgment), the Plaintiff sustained Degloving injury to the right foot and Fracture of the right femur. The injuries were classified as grievous harm and assessed permanent incapacity at 30%. He estimated that removal of the implant would cost the Appellant about Ksh.200,000/-. The appellate court set aside the award of Ksh.700,000/- made by the learned trial Magistrate in favour of the Appellant under the head of general damages for pain, suffering and loss of amenities and substituted the same with an award of Ksh.1,300,000/-. fi In George William Awuor v Beryl Awuor Ochieng [2020] eKLR, the respondent suffered a compound fracture of the left tibia fibula and right a simple fracture of the femur. The respondent’s right thigh had surgical scars and some bruising, which had since healed, but the nail was still in situ, and she would have to undergo surgery to remove the nail. She was awarded Kshs.1,200,000.00 in 2020. 42. Hence, from the foregoing comparison, this court finds that the recent awards for general damages to injuries comparable to those sustained by the Appellant range from between Kshs.1,200,000/= – Kshs.1,500,500/= thus the trial court’s award of Kshs.1,500,000/= as general damages for pain suffering and loss of amenities cannot be said to be low. The same cannot be said to be manifestly low as to amount to a wrong assessment. In the premises, there is no sufficient cause, in my view, for disturbing the award made by the trial court under the general damages head. 16

page 16 of 19

43. On the award for future medical costs Dr. Mutunga referred to the Medical Report dated 3/8/2020 and testified that the degree of permanent incapacitation was assessed at twenty percent (20%). He opined that the Appellant will incur Kshs.150,000/= inclusive of (surgeon fee, hospital stay and drugs) to be reviewed after every 10 years depending on activity. This claim was not challenged and ought to have been awarded by the trial court. See Kenya Power & Lighting Company Limited v AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR) (8 October 2021) (Judgment). I therefore award the same. 44. Accordingly, this court upholds the trial court’s awards save that it will make an award for future medical costs of Kshs.150,000/=. Respondent’s Cross-appeal 45. On liability, the trial court noted that the owner of motor vehicle KBM was extremely negligent in leaving the motor vehicle stationary on the road without any indicator to other road users. He was wholly to blame for the accident. The trial court held that the 1 st third party vicariously liable for the action of his driver. The 1 st 3rd Party did not challenge the evidence of the Appellant and the Respondent. The 1 st third party was held 100% liable. In conclusion the trial court entered judgement for the Appellant against the Respondent and for the Respondent as against the 1st 3rd parties. 46. The Respondent invited this court to correct the trial court’s judgment that, though written with apparent diligence, betrays a fundamental contradiction that strikes at the very heart of justice. That a court cannot, in one breath, find the 1st Third Party 100% liable, and in the next, condemn the Respondent. The Respondent submitted that the finding of liability against the Respondent was a manifest error, an error so glaring, so indefensible, and so inconsistent with the 17

page 17 of 19

evidence that it cries out for appellate correction. To uphold such, would be to enthrone confusion and dethrone reason. 47. This court agrees with the Respondent that the trial court having held the 1st third party 100% liable, it was wrong for it to again proceed and enter judgement for the Appellant against the Respondent and for the Respondent as against the 1st 3rd parties. This is a glaring error that this court has to correct. 48. Accordingly, the judgment of the Chief Magistrate's Court in Machakos CMCC No. 272 of 2018 is set aside to the extent that it attributes liability to the Respondent/Cross-Appellant and Substitute the same with a finding that the 1 st Third Parties were wholly, exclusively, and incontrovertibly liable for causing the accident. 49. In the end, the court makes the following orders: a) Liability at 100% against the 1st third party. b) The judgment of the Chief Magistrate's Court in Machakos CMCC No. 272 of 2018 is set aside to the extent that it attributes liability to the Respondent/Cross-Appellant. c) General damages ......................Kshs.1,500,000/= d) Special damages.........................Kshs.2,375,421/= e) Cost of future medical expenses .....Kshs. 150,000/= TOTAL AWARD ...................... ............... Kshs.4,025,421/= 50. The upshot is that, both the appeal and the cross-appeal partially succeed as ordered above. The Appellant in the appeal will have the costs and interest of the lower court case. Each party shall bear their own costs of the appeal and cross-appeal. 18

page 18 of 19

51. It is so ordered. This file is closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 22 ND JUNE 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 22ND JUNE 2026 In the presence of : Ms. Nzilani for Appellant Ms. Mwende for Respondent Milly grace – Court Assistant 19

page 19 of 19