Mwangi v Mambo (Civil Appeal E1058 of 2023) [2025] KEHC 8438 (KLR) (Civ) (12 June 2025) (Judgment)
Neutral citation:
[2025] KEHC 8438 (KLR)
Republic of Kenya
Civil Appeal E1058 of 2023
DKN Magare, J
June 12, 2025
Between
Jane Wanjiru Mwangi
Appellant
and
Joshua Maina Mambo
Respondent
(Appeal from the Judgment and decree of Hon. S.N. Muchangi (PM) delivered on 22.09.2023 in Nairobi CMCC No. E3327 of 2020.)
Judgment
1.This is an appeal from the Judgment and decree of Hon. S.N. Muchangi (PM) delivered on 22.09.2023 in Nairobi CMCC No. E3327 of 2020. The Appellant was the defendant in the lower court. After hearing the parties, the court entered judgment as follows:a.Liability 100%b.General damages Ksh. 200,000/=c.Special damages Ksh. 6,155/=Total Ksh.216,155/=d.Costs and interest
2.The Appellant was aggrieved and filed this appeal vide a Memorandum of Appeal dated 11.10.2023. The memorandum of appeal raised prolixious 9-paragraph argumentative grounds that are unseemly and do not please the eye. Order 42 Rule 1 requires that the memorandum of appeal be concise. The same provides as doth:
3.The Court of Appeal had this to say in regard to rule 86 (which is pari materia with Order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
4.Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that : -
5.The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. In a nutshell, the first two grounds are baseless and are dismissed in limine as they are not stand-alone grounds. Grounds 3, 4 and 7 are on liability while 5, 6, 7, and 8 are on quantum. Ground 7 is a compounded ground on both liability and quantum. The issues for determination will therefore be:a.Liabilityb.General damagesc.Special damages
Pleadings
6.The Respondent filed the suit vide a plaint dated 18.06.2020. The Respondent was a fare paying passenger in the suit motor vehicle. It is in respect of an accident on 26.01.2020 involving motor vehicle registration number KCN 135B Isuzu bus along Thika Road at Car Wash area. The accident was self-involving.
7.The Respondent pleaded the following particulars of special damages:a.Medical report Ksh. 3,000/=b.Medical expenses Ksh. 2,605/=c.Copy of records Ksh. 550/=
8.The Respondent pleaded the following as particulars of injuries:a.Blunt injury on the right upper limbb.Deep cut on the scalp
9.The Appellant entered appearance and filed a defence denying the averments in the Plaint. She attributed liability to the Respondent for not taking precautions for his safety. They also stated that the accident was inevitable.
Evidence
10.PW1 was Joshua Maina Mambo. He testified that he was a passenger in the suit motor vehicle and was issued with a police abstract. He sustained the pleaded injuries and he uses pain killers to contain the pain. He blamed the driver of the suit motor vehicle. On cross examination, he stated that on reaching carwash area, the vehicle lost control and swerved towards the driver’s side.
11.PW2 was Corporal Moses Aduol of Kasarani Police Station. He testified that there was a self-involving accident on 26.01.2020. He stated that, upon reaching the Car Wash area, the vehicle lost control, resulting in injuries to several passengers. The Appellant did not present any evidence in response.
Submissions
12.Despite directions to file submissions, the parties did not file submissions.
Analysis
13.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
14.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held by as follows;-
15.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-
16.It is a strong thing for an appellate court to differ from the findings on a question of fact, of the magistrate who had the advantage of seeing and hearing the witnesses. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
17.The burden was on the Respondent to prove his case. On this subject, Section 107-109 of the Evidence Act, Cap 80 Laws of Kenya provides that:
18.The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
19.This was further enunciated in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR), where the Court of Appeal [J Karanja, G.G. Okwengu, CM Kariuki, JJA] stated as follows:
20.The appellant did not testify hence did not rebut the respondent’s case. The Respondent was still bound to prove his case even where no evidence was tendered. In the case of Peri Formwork Scaffolding v White Lotus Projects Limited [2021] eKLR, the court stated as follows:
21.The duty to prove in formal proof was stated by Justice J. B. Havelock in the case of Rosaline Mary Kahumbu v National Bank of Kenya Ltd [2014] eKLR: -
22.The court will make an adverse inference when a party failed to call evidence they have. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Justice Odunga J as he then was stated as doth: -
23.What is the effect of failure by the appellant to tender evidence in rebuttal? In the case of Leo Investment Limited v Mau West Limited & another [2019] eKLR Justice C Kariuki, J, stated as doth: -
24.The evidence reached a prima facie standard and is now uncontroverted. The Respondent tendered evidence on how the accident occurred. The police officer indicated what the police records indicate. The driver, who was the other party to the accident decided not to testify. Failure to testify leads the court to make an adverse inference. However, I am equally persuaded by the reasoning of Odunga, J as he then was in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR where the learned Judge stated as follows:53.In this case the only people who could have explained the circumstances under which the accident occurred were Musyoka Mutiso who was ahead of the deceased, PW2 and the Appellant. PW2 gave evidence that tended to show that the accident was caused by the negligence of the Appellant while Musyoka Mutiso was not called to testify. In those circumstances one would have expected the Appellant to testify in order to controvert the evidence of PW2 but he chose not to do so. Accordingly, I find that not only was the evidence of PW2 uncontroverted but the conduct of the Appellant invited the inference that his evidence, had he testified, would have been adverse to his case as pleaded.
25.Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Justice G V Odunga as then he was, stated as doth:
26.Failure by the appellant to testify only means one thing, had the appellant or his driver testified, the evidence would have been adverse to them. Then, what was the evidence they were to tender? Evidence can only be tendered in support of pleadings. In this case, it was the appellant’s pleadings that the accident was inevitable. The burden of proving this was on the defendant.
27.The Respondent proved liability for the accident. However, no contributory negligence was proved. In any case this was a self-involving accident. Without evidence of the accident being inevitable, then the finding on liability was proper. Appeal on liability is therefore dismissed.
28.The particulars of contributory negligence were not proved. They were pleaded but remained bare. The appellant had a duty to render evidence to prove contributory negligence. Where the Respondent proved his case to the required standard, it was the duty of the Appellant to prove contributory negligence which in my view she failed. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the court held that; -
29.In the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR Nyakundi J referred to Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, and held as follows:
30.In the circumstances, the appeal on liability lacks merit. It is accordingly dismissed.
31.On quantum, the court awarded Ksh. 200,000/=. In the lower court the Appellant relied on authorities from 2018 and 2016. Circumstances in which an Appellate court will interfere with the quantum of damages awarded by a trial court were clearly laid out in the case of Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 where the Court of Appeal stated as follows:
32.The principles guiding this Court as the first appellate court have crystalized. This is in recognition that the award of damages is discretionary. The Court of Appeal pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR as follows:
33.In this case parties were in agreement from the lower court on the nature and effect of the injuries. The injuries were blunt injury to the right upper limb and deep cut on the scalp and the court awarded general damages of Ksh. 200,000/=.
34.In the case of Justine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa [2020] eKLR the court awarded the sum of Kshs. 150,000/- for blunt object injury to the lower lip, blunt object injury to the chest, and blunt object injury to the left wrist.
35.In Mulwa & Another v Nzai (Civil Appeal E072 of 2023) [2024] KEHC 6898 (KLR) (10 June 2024) (Judgment) the court awarded Kshs. 250,000/=, reduced from the lower court’s award of Ksh. 400,000/= for the Plaintiff who had suffered the following injuries:a.Small bruise on the right ankleb.Soft tissue injuries on lower back and right lower limbc.Blunt object injury to the lower and right limbd.Bruises on the right lower limb.
36.In Kimori v Mangare (Civil Appeal E004 of 2021) [2022] KEHC 14283 (KLR) (11 February 2022) (Judgment) the Respondent had sustained some deep cut wounds on the left leg, chest contusion and trauma to the right leg and neck, a sum of Ksh.130,000/= was awarded as adequate compensation for the injuries sustained.
37.Bearing in mind the inflation and passage of time, I do not think Ksh. 200,000/= was inordinately high as to be reduced by this court. The same is upheld.
38.The next issue is costs. Costs are governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen percent per annum, and such interest shall be added to the costs and shall be recoverable as such.
39.The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:
40.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
41.The appellant has lost the appeal. The respondent did not file any response. Each party to bear their own costs.
Determination
42.In the upshot, I make the following orders:a.The appeal is dismissed.b.Each party to bear their own costs.c.30 days stay of execution.d.The file is closed.
DELIVERED, DATED AND SIGNED AT NYERI ON THIS 12TH DAY OF JUNE, 2025.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -No appearance for partiesCourt Assistant – JedidahM. D. KIZITO, J.