Fred Muthami Mulei v Timothy Maghanga Nyambu

appellant now contends that the respondent ought to have been held wholly to blame, and that the damages awarded under two heads were inordinately low. The claim and the pleadings 4. By his plaint, and later his amended plaint, the appellant prayed for judgment against the respondent for general damages for pain, suffering and loss of earning capacity; special damages and future medical expenses; and costs and interest. He pleaded that the respondent had ridden the motorcycle carelessly and recklessly, and particularised negligence against him as over-speeding, failing to exercise due care and skill in managing the motorcycle, failing to keep a proper and clear course, riding without due care for his passengers, and failing to brake in time to avoid the collision. He also pleaded reliance on the doctrine of res ipsa loquitur. 5. The respondent, by his statement of defence, denied the occurrence of the accident and every particular of negligence, and put the appellant to strict proof. In the alternative he averred that the accident, if it occurred, was caused solely or substantially by the negligence of the driver of motor vehicle KBB 233S and of the appellant himself. He particularised negligence against the driver of the Nissan Sunny and, separately, against the appellant. It is significant, for reasons that will appear, that the particulars of negligence pleaded against the appellant were confined to allegations of making dangerous movements, swaying while aboard the motorcycle and failing to keep still or to take reasonable precautions as a pillion passenger. Nowhere in the defence was it pleaded that the appellant failed to wear a helmet or other protective gear. The respondent gave notice of an intention to take out third-party proceedings against the driver and owner of KBB 233S, but no 2 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 2 of 14

such proceedings were ever commenced, and the driver of the Nissan Sunny was never joined. The evidence at the trial 6. The appellant's case was heard on 5th June 2024 and the respondent's case on 10th July 2024, both before Hon. Adika (Senior Principal Magistrate). The written judgment was, however, composed and delivered by Hon. Mwamuye (SRM), who did not have the advantage of seeing or hearing any of the witnesses. That circumstance is of some importance when I come to consider the proper approach of this court on a first appeal. 7. The appellant called three witnesses. PW1, No. 100209 PC Karen Baraza of Mikindani Police Station, produced the police abstract and testified that the collision occurred at about 1130 hours at Bangladesh area along the Mombasa– Nairobi highway; that the Nissan Sunny (KBB 233S), driven by one Mohamed, was travelling from Mombasa towards Nairobi; and that the motorcycle, ridden by the respondent, was travelling from Miritini towards Mombasa against the flow of traffic, whereupon the two collided head-on and the appellant, the pillion passenger, was injured. Her opinion was that the rider of the motorcycle was to blame. On cross-examination, however, she conceded that she was not the original investigating officer (who had been transferred to Turkana); that the original occurrence book did not attribute blame to the motorcycle; that the matter was still under investigation; that she produced no sketch plan; and that she did not know whether the pillion passenger had protective gear on. 8. PW2, Dr. Darius Wambua Kiema, produced a medical report dated 24th November 2021. He found that the appellant had suffered a comminuted fracture of the right 3 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 3 of 14

scapula with intraarticular involvement of the right shoulder, a fracture of the left medial malleolus, and bilateral basal contusion of the lungs, and assessed permanent disability at 35%. On cross-examination he accepted that he had not examined the appellant recently and that there was a possibility of the disability reducing over time. PW3, the appellant himself, adopted his witness statement and testified that he is a businessman who deals in merchandise and employs others, that he sustained fractures to the right hand and right leg, that he still bears metal implants and uses crutches and painkillers, and that he can now do only light work. 9. The respondent called a single witness. DW1, Dr. Udayan Sheth, a consultant orthopaedic surgeon, examined the appellant on 23rd March 2022 and produced a report of that date. He found that the appellant had operated fractures fixed with plates and screws, but that on his examination there was no residual incapacity, full recovery having been achieved, and that removal of the plate would cost about Kshs 130,000/=. On cross-examination he accepted that the injuries recorded in Dr. Kiema's report were accurate and that injuries of that nature do not heal so as to return the body to its former state. It is to be noted that the respondent himself did not testify, and that DW1's evidence was directed entirely to the appellant's injuries and prognosis. No evidence whatever was led by the defence on the question of how the accident occurred or who was to blame for it. The judgment of the trial court 10. On liability, the learned magistrate reviewed PW1's evidence and the authorities on the evidential value of a police abstract, and concluded that she could not establish with clarity who was to be blamed for the accident. Applying the principle in Eliud Papoi Papa v Jigneshkumar Rameshbhai Patel & another [2017] eKLR, that 4 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 4 of 14

where the court is confronted with conflicting and irreconcilable accounts of a collision it may find both drivers equally to blame, she held (at paragraph 13) that “both the 2nd Defendant and the owner of motor vehicle KBB 2335 contributed equally in causing the collision.” She then held (at paragraph 14) that “both the 2nd defendant and the plaintiff were equally liable” and that “the plaintiff ought to have carried some blame for failing to put on his helmet,” and apportioned liability at 50:50. 11. On quantum, the learned magistrate awarded general damages for pain and suffering of Kshs 900,000/=; a further Kshs 200,000/= for loss of earning capacity; and future medical expenses of Kshs 356,000/= all totalling to Kshs 1,456,000/=. Special damages were disallowed for want of receipts endorsed “Paid”. She then reduced the total by 50% on account of her liability finding, arriving at a net award of Kshs 728,000, with interest and costs to the appellant. The appeal 12. The memorandum of appeal advances six grounds. In substance they raise three complaints: first, that the learned magistrate erred in apportioning liability equally, and in finding the appellant contributorily negligent, when he was a mere pillion passenger, when the evidence of the police officer pointed to the respondent, and when the respondent called no evidence to rebut the allegation of negligence; secondly, that the award of general damages for pain and suffering was inordinately low; and thirdly, that the award of Kshs 200,000/= for loss of earning capacity did not commensurate with the circumstances. 13. Both parties filed written submissions, which I have considered in full. The appellant urged that the respondent be held 100% liable, that general damages be 5 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 5 of 14

enhanced to Kshs 1,500,000, and that loss of earning capacity be enhanced to Kshs 750,000. The respondent urged that the judgment be upheld in its entirety, defending both the 50:50 apportionment and the awards, and contending that the police abstract was only prima facie evidence and that the appellant had failed to prove his loss. The respondent did not file a cross-appeal. Analysis and determination 14. As a first appellate court, my duty is to reconsider the evidence, evaluate it afresh and draw my own conclusions, while bearing in mind that I neither saw nor heard the witnesses and making due allowance in that respect: Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123; Peters v Sunday Post Ltd [1958] EA 424. That said, the caution ordinarily owed to a trial court's assessment of witnesses has, in this case, reduced force. The magistrate who determined the case did not preside over the hearing; the witnesses were seen and heard by another magistrate. On the central question in this appeal, the drawing of inferences from largely undisputed primary facts, this court is in as good a position as the trial court to form its own view. 15. I take the two chief questions in turn: (i) liability and the finding of contributory negligence; and (ii) the quantum of general damages and of loss of earning capacity. (i) Liability and contributory negligence 16. The starting point is that the appellant was a fare-paying pillion passenger who had no control whatever over the motorcycle. It is well settled that a pillion passenger in that position can do nothing to prevent an accident and ordinarily bears no share of the blame for it. As Muriithi J. put it in Janet Kathambi v Charity Kanja Njiru 6 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 6 of 14

(Suing on behalf of the Estate of Moses Gitonga) HCCA No. 40 of 2020, relying on Kubai Kithinji Kaiga v Kenya Wildlife Service [2021] KEHC 7088 (KLR), there is nothing a pillion passenger can do to prevent an accident since he does not have control over the motorcycle. Whatever the position as between the rider and the driver of the Nissan Sunny, the appellant himself was, on the face of it, an innocent party. 17. The learned magistrate reduced the appellant's recovery by one-half on two footings which, with respect, she did not keep distinct. The first was an apportionment of blame between the respondent and the driver of the Nissan Sunny: the two vehicles were found to have “contributed equally in causing the collision.” The second was an apportionment of blame between the respondent and the appellant, said to be justified by the appellant's failure to wear a helmet. These are two very different things, and the conflation of them is the source of the error in the judgment. 18. Take first the apportionment between the respondent and the driver of the Nissan Sunny. Even accepting that finding, it does not diminish the appellant's claim by a single shilling. Where an innocent passenger is injured by the concurrent negligence of two drivers, the drivers are joint (or concurrent) tortfeasors, each of whom is liable to the passenger for the whole of his loss. The passenger may recover the entirety of his damages from either tortfeasor; the division of responsibility between them is a matter of contribution inter se and has nothing to do with the passenger's entitlement. It follows that, even on the magistrate's own finding that the respondent and the Nissan driver were equally to blame, the appellant remained entitled to recover 100% of his damages from the respondent, the tortfeasor he chose to sue. The respondent's remedy, if he wished to spread the 7 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 7 of 14

loss, lay in the third-party proceedings he threatened in his defence but never took out. 19. Take next the reduction founded on the appellant's own contributory negligence. Such a reduction could only be justified if there were, cumulatively, a pleaded case of contributory negligence, evidence to support it, and a causal connection between the appellant's conduct and the injuries he in fact sustained. None of the three was present here. 20. First, the helmet was never pleaded. The particulars of negligence pleaded against the appellant said nothing about a helmet or protective gear. It is not the function of a court to raise, of its own motion, a case that the parties have not raised. As Lord Denning observed in Jones v National Coal Board [1957] 2 QB 55: “In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.” 21. The helmet issue was introduced by the trial court itself. That, of itself, was an improper foundation for a finding against the appellant. 22. Secondly, there was no evidence that the appellant was not wearing a helmet. The only witness who touched on the matter, PW1, stated in terms that she did not know whether the pillion passenger had protective gear on. The respondent led no evidence at all on the point, indeed no evidence at all on liability. The burden of proving contributory negligence lay on the respondent, who asserted it; he did not begin to discharge it. A finding of contributory negligence cannot rest upon speculation. 8 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 8 of 14

23. Thirdly, and in any event, even assuming that the appellant wore no helmet, the injuries he sustained were a comminuted fracture of the right scapula with intraarticular involvement of the right shoulder, a fracture of the left medial malleolus, and bilateral basal contusion of the lungs. Not one was a head injury. A helmet protects the head. There is nothing to suggest that a helmet would have prevented or lessened injuries to the shoulder, the ankle and the lungs. Contributory negligence in failing to wear protective equipment reduces damages only to the extent that the failure caused or aggravated the injury complained of (see Froom v Butcher [1976] QB 286). The point is directly answered by Nancy Maluki Mutethya v Paul Ngula Kituku HCCA No. E002 of 2021, where Limo J. declined to reduce a passenger's damages for the absence of a helmet, reasoning: “I am not persuaded that the fact that the appellant had no helmet caused or aggravated the injuries suffered. The appellant suffered a fracture of right femur and soft tissue injuries to the limb. A helmet could not have prevented her from suffering those sort of injuries. If, however, she had suffered head injuries, the finding of this court certainly would have been different.” 24. Here, as there, the absence of a helmet could not causatively justify any reduction of the appellant's damages, let alone a reduction of one-half. 25. It remains to ask whether the respondent was shown to have been negligent at all, for the appellant bore the burden of proving negligence against him. He was. The learned magistrate found the respondent to blame, and the respondent, having filed no cross-appeal, does not challenge that finding. In any event the finding was amply justified. PW1's account of the primary facts, that the motorcycle was travelling against the flow of traffic and that the collision was head-on, was not displaced by any evidence from the respondent, who neither testified nor called any witness on liability. A motorcyclist who rides against the flow of traffic and 9 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 9 of 14

collides head-on with an oncoming vehicle is, prima facie, negligent. It was open to the trial court to be sceptical of PW1's opinion on blame, given that she was not the original investigating officer, that the occurrence book did not implicate the motorcycle and that no sketch plan was produced (see Easy Coach Ltd & another v Gideon Otieno Oulu [2021] eKLR); to that extent the appellant's second ground, framed as a complaint that her evidence was “disregarded,” is not made out, because the assessment of blame was ultimately for the court and not the officer. But the appellant did not need PW1's opinion. Her unchallenged account of the physical facts, coupled with the respondent's failure to offer any competing version (compare CMC Aviation Ltd v Kenya Airways Ltd [1978] eKLR and Edward Muriga v Nathaniel Schuster CA No. 23 of 1997 on unrebutted evidence), was sufficient to fix the respondent with liability; and the appellant's status as an innocent passenger did the rest. 26. For completeness, I record that the passage in the judgment invoking Baker v Market Harborough[1953] 1 WLR 1472 (CA)-type reasoning, that where the court cannot decide which of two drivers is to blame both must be treated as equally to blame, is unobjectionable as between the respondent and the Nissan driver. Its error was in transplanting the resulting 50% onto the innocent passenger. On no view was the appellant one of the two drivers between whom blame fell to be divided. 27. It follows that grounds 1, 3 and 4 succeed, and ground 2 succeeds to the extent explained. The finding of contributory negligence against the appellant cannot stand, and the apportionment of the appellant's award at 50:50 must be set aside. The respondent is liable to the appellant for the whole of the damages properly assessed. 10 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 10 of 14

(ii) General damages for pain and suffering 28. An appellate court will not interfere with an award of general damages merely because it would itself have awarded a different figure. It may interfere only where the trial court took into account an irrelevant factor or left out of account a relevant one, or where the award is so inordinately high or so inordinately low as to represent an entirely erroneous estimate: Butt v Khan CA No. 40 of 1977; Kemfro Africa Ltd t/a Meru Express Services v Lubia (No. 2) [1985] eKLR. Comparable injuries should, so far as possible, attract comparable awards. 29. The appellant complains that Kshs 900,000/= was inordinately low. The complaint is not made out. The comparator on which the appellant himself relied, Beatrice Khamede v Erick Wanunu & another HCCA No. 717 of 2017 (Kshs 800,000/= in 2019 for similar injuries), yields a figure below the award actually made. The respondent's comparator suggested a range of Kshs 600,000/= to Kshs 800,000/=. The award of Kshs 900,000/=, therefore, sits at or above the top of the range the parties themselves proposed; it cannot be characterised as inordinately low. Moreover, the degree of permanent disability was genuinely in contest: PW2 assessed it at 35% but accepted it might reduce with time, while DW1 found no residual incapacity at all. In those circumstances an award of Kshs 900,000/=was well within the trial court's discretion and discloses no error of principle. Ground 5 fails, and the award of Kshs 900,000/= is affirmed. (iii) Loss of earning capacity 30. Loss of earning capacity is distinct from loss of earnings. It compensates a plaintiff for the risk that, by reason of his disability, he may in future lose his employment or occupation, or be handicapped in the labour market, or be unable to obtain work 11 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 11 of 14

as well remunerated as before. It may be awarded whether the plaintiff was employed or not at the time of the accident, and the award may be a token, a modest or a substantial one according to the circumstances; there is no formula. (See William J. Butler v Maura Kathleen Butler CA No. 49 of 1983; Mumias Sugar Co. Ltd v Francis Wanalo CA No. 91 of 2003). 31. The appellant is a self-employed businessman who testified that he can now do only light work. There was, however, no documentary proof of his pre-accident income, and, as I have noted, the extent of any lasting disability was disputed. Against that background, the trial court's award of Kshs 200,000/= for loss of earning capacity was a modest but not unreasonable sum, and I can find no error of principle in it. The appellant's reliance on Mumias Sugar (where a 10% disability attracted Kshs 200,000/= in 2007) to argue that a larger disability now warrants a larger sum is not without some force, but it runs up against the contested nature of the 35% assessment and the absence of any evidence of income, and it cannot convert a discretionary award that is within range into an erroneous one. Ground 6 fails, and the award of Kshs 200,000/= is affirmed. Future medical expenses and special damages 32. Neither the award of future medical expenses of Kshs 356,000/= nor the disallowance of special damages is the subject of any ground of appeal. The respondent, not having cross-appealed, cannot now be heard to challenge the award of future medical expenses; and the appellant does not challenge the disallowance of special damages, which the trial court refused for want of receipts endorsed “Paid” in accordance with Total (Kenya) Ltd v Janevams Ltd [2015] eKLR. Both determinations therefore stand. 12 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 12 of 14

The result on quantum 33. Damages were therefore properly assessed by the trial court as follows: general damages for pain and suffering, Kshs 900,000/=; loss of earning capacity, Kshs 200,000/=; and future medical expenses, Kshs 356,000/=; a total of Kshs 1,456,000/=. As no deduction for contributory negligence is warranted, and as the respondent is liable in full, the appellant is entitled to the whole of that sum. The net award of Kshs 728,000 arrived at by the trial court is set aside and substituted with an award of Kshs 1,456,000. 34. The appeal succeeds on liability but fails on quantum. In the result I make the following orders: (a) The appeal is allowed in part. (b) The finding of contributory negligence against the appellant, and the apportionment of liability at 50:50, are set aside. The respondent is held wholly (100%) liable to the appellant for the accident. (c) The consequent deduction of 50% from the assessed damages is set aside. The net award of Kshs 728,000/= is set aside and substituted with an award of Kshs 1,456,000/=/, being the full damages assessed by the trial court (Kshs 900,000/= for pain and suffering, Kshs 200,000/= for loss of earning capacity, and Kshs 356,000/= for future medical expenses). (d) The appeal against the quantum of general damages and of loss of earning capacity is dismissed; those awards are affirmed. (e) The decretal sum of Kshs 1,456,000/= shall carry interest at court rates from the date of the trial court's judgment until payment in full. (f) The appellant shall have the costs of this appeal and the costs of the trial. 13 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 13 of 14

Signed, dated and published on 7 August 2026 Ngaah Jairus JUDGE 14 |CIVIL APPEAL NO. E087 OF 2025: JUDGMENT

page 14 of 14