Mercy Mueni Mutuku v Susan Oyondi Ombogo [2021] eKLR

REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
APPELLATE SIDE
(Coram: Odunga, J)
CIVIL APPEAL NO. 81 OF 2015
MERCY MUENI MUTUKU.....................................................APPELLANT
-VERSUS-
SUSAN OYONDI OMBOGO.................................................RESPONDENT
(Being an appeal against the judgement delivered by Hon E.K. Too, SRM on 22nd April,
2015 in Mavoko PMCC 548 of 2013)
BETWEEN
SUSAN OYONDI OMBOGO........................................................PLAINTIFF
-VERSUS-
MERCY MUENI MUTUKU...................................................-DEFENDANTS
JUDGEMENT
1. By a plaint dated 18th June, 2013, the Respondent herein sued the Appellant claiming
special damages, general damages, costs and interests.
2. The cause of action, according to the plaint, arose on or about 11 th November, 2012 when
the Plaintiff, was lawfully walking off the road along Athi River-KMC Road. According to
the Respondent, the Appellant Defendant either by herself or her authorised driver, servant
and/or agent drove, controlled and/or managed motor cycle reg. no. KMCN 028E that he
caused the same to lose control, veer off the road and hit the Respondent, thereby causing the
accident as a result of which the Respondent sustained injuries to her spinal cord and suffered
loss and damage, particulars of which he pleaded. The respondent also pleaded res ipsa
loquitor and vicarious liability.
3. In her defence, the Appellant denied ownership of the said motor cycle and that the
accident occurred on the said date involving the said motor cycle and the Respondent. She
further denied the allegations of negligence pleaded as well as the application of the doctrine
of res ipsa loquitor and vicarious liability.
4. In the alternative, it was pleaded on behalf of the Appellant, that if the said accident
occurred, then it was caused by or substantially contributed to by the Respondent’s
negligence, particulars whereof were pleaded. Further and in the alternative, it was pleaded
that the accident was inevitable and occurred despite the exercise of reasonable skill and care
on the part of the Appellant.
5. It was further denied that the Respondent sustained the alleged injuries and that she

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suffered damages and it was sought that the Plaintiff’s claim be dismissed with costs.
6. In her evidence, the Respondent testified that on 11 th November, 2012, she was walking by
the side of the road from a church fundraising at KMC when she was hit from behind by a
motor cycle and she fell into a maize plantation and lost consciousness and when she regained
her consciousness she found herself at Kitengela Medical Centre where she was treated. She
exhibited the appointment card and testified that she was admitted for one month at the said
facility. Upon her discharge, she was given a discharge summary which she exhibited. She
was informed at the hospital that she had sustained injuries to her spinal cord and the thorax.
When she reported the accident to Athi River Police Station, she was given P3 form which
was filled in and which she exhibited. She was also given a police abstract whose copy she
identified.
7. He was also examined by a doctor who prepared a report for her which she identified. In
her evidence, she carried out a search of the motor cycle that hit her being Reg. No. KMCN
028E and produce the search certificate as exhibited in court. She also produced the demand
letter from her advocate to the owner of the motor cycle and sought the reliefs in the plaint.
8. In cross-examination, the Respondent stated that the accident occurred at 7pm when
darkness was setting in, though it was not very dark. She reiterated that the motor cycle came
from behind and she was off the road where the motor cycle followed her. She blamed the
Appellant since she was not walking in the middle of the road and denied that she crossed the
road. She however admitted that one could not over speed on that stretch of the road. She
however stated that she neither saw the owner of the motor cycle nor was she aware that she
was charged. However, she was informed by the Defendant who visited her in hospital that
the motor cycle belonged to her. In her evidence, she had not fully recovered and was still
having pain.
9. PW2, Florence Wanjiku Ambasi, stated that the Respondent was her friend and she
recalled that on 11th November, 2012, they were from church at 730pm heading home on a
footpath when a motor cycle appeared from behind and hit the Respondent. After the
accident, the motor cycle was detained by a good Samaritan while she called another well-
wisher to take the Respondent to the Hospital. It was her testimony that the Respondent’s
husband took the said motor cycle to the Police Station while she proceeded to the Hospital
and did not go to the Police Station. She, however, did not take note of the motor cycle’s
number plate
10. In cross-examination, she stated that she did not see the cyclist and just heard it approach
and turned to see it. The Respondent who was with her fell down. It was her testimony that
the motor cycle swerved towards the Respondent though they tried to go off the foot path. She
explained that she could not go to the Police Station because she had a small child and was
yet to be called there.
11. In re-examination, she stated that she never saw the cyclist swerve or brake.
12. PW3, PC Kareu Male, attached to Athi River Traffic Base, testified on behalf of the
Base Commander for the purposes of producing an abstract issued on 11 th December, 2012 to
Susan Ombogo, who was sinvolv3d in an accident that was reported on 12 th November, 2012
under OB 7/12. According to the report the accident occurred on 11 th November, 2012 at
7.30pm along an unnamed small footpath near Mavoko Secondary School where the
Respondent was knocked down by motor cycle reg. no. KMCN 028E Skygo. As a result, the
Respondent was injured on the back and was rushed to Kitengela Unit where she was treated
and later discharged. In his evidence the matter was pending under investigations. He
produced the police abstract as well as the OB which indicated that the matter was reported as

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hit and run. The accident, according to the OB was reported by the Respondent’s husband
known as Mohamed. According to him, the motor cycle was insured by Mercy Mueni under
policy number PS/708/003/7860/2009. According to the witness he was neither the
investigating officer nor did he go to the scene of the accident and could not confirm the cause
of the accident.
13. PW5, Dr Ephraim Loiposha, testified that he prepared a medical report for the
Respondent based on the discharge summary and other documents and produced his said
report as exhibit. In his view, the Respondent had no further complication.
14. At the close of the Respondent’s case, the Appellant did not call any evidence.
15. In his judgement, the Learned Trial Magistrate found, from the evidence on record, that
the Respondent was hit by a motor cycle and injured on a foot path where the Respondent had
the right of way. He accordingly, found the Appellant who was the owner of the said motor
cycle vicariously liable for the injuries caused to the Respondent. Based on the authorities
placed before him, he assessed the general damages in the sum of Kshs 500,000.00 and
awarded the costs and interests to the Respondent.
16. This appeal is against both liability and quantum of damages and the court was urged to
re-evaluate the evidence on record and arrive at its own decision.
17. According to the Appellant, from the evidence of the Respondent that she swerved off the
road, it is evident that the Respondent was wobbling and/or wavering on the main road thus
caused confusion to the rider of the motor cycle who even tried to move away from the
Respondent but she kept wobbling. Further, as a pedestrian, the Respondent should have been
walking on the opposite lane from traffic so that she could clearly see oncoming motorists on
their side whereas motorists from behind are further away from her. This is the standard duty
of care expected from pedestrians and the Respondent did not demonstrate applying it and
reliance was placed on the case of Peter Kanithi Kimunya vs. Aden Guyo Haro [2014]
eKLR where Aburili, J quoted the Court of Appeal decision of Patrick Mutie Kamau &
Another – vs – Judy Wambui Ndurumo, for the proposition that pedestrians too owe a duty
of care to other roader users to move with due care and follow the highway code.
18. It was noted that from the police records, the matter was pending under investigations and
did not blame the Appellant and in this regard, reliance was placed on the decision of Aburili,
J in the case of Alfred Kioko Muteti vs. Timothy Miheso & another [2015] eKLR in
which the Court of Appeal decision in Douglas Odhiambo Appeal & Another vs. Telkom
Kenya Ltd CA 115/2006.
19. While appreciating that the Appellant did not call any witness in rebuttal, it was
submitted that that should not have stopped the trial court from interrogating the
Respondent’s testimony and evidence thoroughly in finding whether she had proved her case
on a balance of probabilities as was held in the case of Mary Gathoni Weru vs. Mt. Kenya
Bottlers Limited [2021] eKLR and it was submitted that the Appellant has demonstrated that
the Respondent did not prove her case against the Appellant; and that it was indeed the
Respondent who was to blame for the occurrence of the accident and this Court was invited to
find the Respondent 100% and dismiss the case against the Appellant.
20. According to the Appellant, the Respondent failed to prove the circumstances of the
accident in support of the particulars of negligence pleaded against the Appellant in light of
the testimony and evidence that was adduced before the trial court and she relied on the case
of Mary Gathoni Weru v Mt. Kenya Bottlers Limited [2021] eKLR.
21. As regards the quantum, it was submitted that the trial court’s award of Kshs. 500,000/-

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for general damages was inordinately high and excessive. In her view, the trial court gave this
award with reliance on authorities in which the injuries were not comparable to the injuries
sustained by the Respondent in the present suit. It was noted that the Respondent in her plaint
pleaded the injuries of mild head injury and spinal injury and called Dr. Loiposha, PW4, who
testified and produced the medical report which indicated that the Plaintiff was satisfactorily
treated and was expected to recover. Further, upon cross examination, the Doctor testified that
the Respondent had no further complications from the injuries sustained.
22. According to the Appellant, the trial court should have considered the totality of the
treatment notes and medical report rather than just relying on the medical report which was
vague on the degree of injury and classification. If the trial court would have considered the
treatment notes it would have discovered that the injuries were much minor than were made to
be in the plaint and the medical report; the trial court would have discovered that the injuries
were not skeletal but rather soft tissue. Further, focussing on treatment medication and
prescription indicated in the treatment notes and medical report which comprised of
analgesics, paracentesis and antibiotics, it is clear that the injuries sustained were soft tissues
as was held in John Karanja Njuguna vs. Eastern Produce (K) Limited (Savani Tea
Estate) [2014] eKLR. Based on Mohamed Juma vs. Kenya Glass Works Ltd, CA No. 1 of
1986 it was submitted that the trial court in its award of general damages applied the wrong
principles of law and did not apply the principles which guide courts on award of damages as
observed in Johnson Evan Gicheru vs. Andrew Morton & Another, CA NO. 314 of 2000.
23. According to the Appellant, had the Respondent proved her case against the Appellant,
the proper award of general damages should have been no more than Kshs. 100,000/- which
they proposed that this Court should adopt and in support of this proposal she relied on the
case of John Karanja Njuguna Case (Supra).
24. This Court was therefore urged to allow the appeal herein by setting aside the judgment
of the trial court; dismissing the Respondent’s suit against the Appellant; and reassessing
general damages to Kshs. 100,000/- that would have been awarded had the Respondent
proved his case against the Appellant.
25. On her behalf of the Respondent, it was submitted that from the evidence adduced by the
Police officer and the eye witness, it is evident that the plaintiff was knocked down by the suit
motor cycle while she was way off the road. After the occurrence of the accident, the rider of
the suit motorcycle did not even bother to assist the plaintiff who had lost consciousness
leaving her at the mercy of good Samaritans who took her to the hospital.
26. It was urged that in making a determination on apportionment of liability, this Court
should be guided by a consideration of proximate cause or primary cause as defined by the
Black’s Law Dictionary 7th Edition and it was contended that the proximate cause of the
accident in question was the negligence of the rider of the suit motorcycle who knocked down
the plaintiff who was a pedestrian walking off the road and to conclude that had the rider not
acted negligently, the accident would not have occurred and the trial court was in order in
considering the actions of the rider while making a determination on liability.
27. It was submitted that accident and the resultant severe injuries sustained by the
respondent was the direct result of the failure by the Appellants’ rider to maintain the firm and
expected control of the motor cycle and hence this Court was urged to uphold the trial court
determination on liability at 100% against the appellant since the motorist/rider had a higher
duty of care than the pedestrian. This submission was based on Abdalla Rubeya Hemed vs.
Kajumwa Mvurya & Another [2017] eKLR and Mary Njeri Murigi vs. Peter Macharia
& another [2016] eKLR.

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28. On quantum, it was submitted that it is evident from the plaintiffs’ pleadings as well as
the plaintiffs’ submissions made before the lower court that the plaintiff sustained severe
injuries as a result of the accident being mild head injury and spinal injury. In this case, it was
submitted that the appellant has terribly failed to demonstrate how the court was in error in
awarding damages of Kshs 500,000.00 under this head and this court was urged to dismiss the
ground of appeal under this head and find that the plaintiff sustained severe body injuries after
the occurrence of the accident and thus find the award of Kshs 500,000 sufficient in the
circumstances and uphold the trial courts’ determination under this head.
29. It was submitted that the appellant has terribly failed in proving the ground of appeal
under this head and that this court should dismiss the same based on the decisions in Anne
Njeru vs. Headmistress Machakos Girls & 2 Others (2003) eKLR where the Nambuye, J
awarded Kshs. 700,000/= for pain, suffering and loss of amenities where the plaintiff
sustained a spinal injury and Mohammed Aden Abdi vs Abdi N. Omar (2005) eKLR where
the plaintiff had sustained spinal injuries and general damages were assessed at Kshs
550,000/=. In the Respondent’s view, considering the fact that the above cited authorities are
18 and 16 years old respectively the award of Kshs 500,000/= by the trial court can thus not
be said to be inordinately high as alleged by the appellant but was fair considering the injuries
sustained by the plaintiff.
Determination
30. I have considered the submissions of the parties in this appeal. This being a first appellate
court, it was held in Selle –vs- Associated Motor Boat Co. [1968] EA 123 that:
“The appellate court is not bound necessarily to accept the findings of
fact by the court below. An appeal to the Court of Appeal form a trial by
the High Court is by way of a retrial and the principles upon the Court of
Appeal acts are that the 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, in particular the court is not bound necessarily
to follow the trial Judge’s findings of fact if it appears either that he has
clearly failed on some point to take account of particular circumstances or
probabilities materially to estimate the evidence or if the impression based
on the demeanour of a witness is inconsistent with the evidence in the case
generally.”
31. In Coghlan vs. Cumberland (1898) 1 Ch. 704, the Court of Appeal (of England) stated
as follows -
"Even where, as in this case, the appeal turns on a question of fact, the
Court of Appeal has to bear in mind that its duty is to rehear the case, and
the court must reconsider the materials before the judge with such other
materials as it may have decided to admit. The court must then make up
its own mind, not disregarding the judgment appealed from, but carefully
weighing and considering it; and not shrinking from overruling it if on full
consideration the court comes to the conclusion that the judgment is
wrong...When the question arises which witness is to be believed rather
than another and that question turns on manner and demeanour, the
Court of Appeal always is, and must be, guided by the impression made
on the judge who saw the witnesses. But there may obviously be other
circumstances, quite apart from manner and demeanour, which may show
whether a statement is credible or not; and these circumstances may

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warrant the court in differing from the judge, even on a question of fact
turning on the credibility of witnesses whom the court has not seen."
32. Therefore, this court is under a duty to delve at some length into factual details and revisit
the facts as present in the trial court, analyse the same, evaluate it and arrive at its own
independent conclusions, but always remembering, and giving allowance for it, that the trial
court had the advantage of hearing the parties.
33. However, in Peters –vs- Sunday Post Limited [1958] EA 424, it was held that:
“Apart from the classes of case in which the powers of the Court of
Appeal are limited to deciding a question of law an appellate court has
jurisdiction to review the record of the evidence in order to determine
whether the conclusion originally reached upon that evidence should
stand; but this jurisdiction has to be exercised with caution. If there is no
evidence to support particular conclusion (and this really is a question of
law) the appellate court will not hesitate so to decide. But if the evidence
as a whole can reasonably be regarded as justifying the conclusion arrived
at on conflicting testimony by a tribunal which saw and heard the
witnesses, the appellate court will bear in mind that it has not enjoyed this
opportunity and that the view of the trial Judge as to where credibility lies
is entitled to great weight. This is not to say that the Judge of first instance
can be treated as infallible in determining which side is telling the truth or
is refraining from exaggeration. Like other tribunals, he may go wrong on
a question of fact, but it is a cogent circumstances that a judge of first
instance, when estimating the value of verbal testimony, has the advantage
(which is denied to the court of appeal) of having the witnesses before him
and observing the manner in which their evidence is given… Where a
question of fact has been tried by a Judge without a jury, and there is no
question of misdirection of himself, and appellate court which is disposed
to come to a different conclusion on the printed evidence, should not do so
unless it is satisfied that any advantage enjoyed by the trial Judge by
reason of having seen and heard the witnesses, could not be sufficient to
explain or justify the trial Judge’s conclusion. The appellate court may
take the view that, without having seen or heard the witnesses it is not in a
position to come to any satisfactory conclusion on the printed evidence.
The appellate court, either because the reasons given by the trial Judge
are not satisfactory, or because it unmistakably so appears form the
evidence, may be satisfied that he has not taken proper advantage of his
having seen and heard the witnesses, and the matter will then become at
large for the appellate court. It is obvious that the value and importance of
having seen and heard the witnesses will vary according to the class of
case, and, it may be, the individual case in question….it not infrequently
happens that a decision either way may seem equally open and when this
is so, then the decision of the trial Judge who has enjoyed the advantages
not available to the appellate court, becomes of paramount importance
and ought not be disturbed. This is not an abrogation of the powers of a
Court of Appeal on questions of fact. The judgment of the trial Judge on
the facts may be demonstrated on the printed evidence to be affected by
material inconsistencies and inaccuracies, or he may be show to have
failed to appreciate the weight or bearing of circumstances admitted or
proved or otherwise to have gone plainly wrong.”

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34. It was therefore held by the Court of Appeal in Ephantus Mwangi & Another –vs-
Duncan Mwangi, Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 that:
“A member of an appellate court is not bound to accept the learned
Judge’s findings of fact if it appears either that (a) he has clearly failed on
some point to take account of particular circumstances or probabilities
material to an estimate of the evidence, or (b) if the impression based on
the demeanour of a witness is inconsistent with the evidence in the case
generally.”
35. In this appeal, it is clear that the determination of the appeal revolves around the question
whether the Respondent proved her case on the balance of probabilities and what ought to
have been the quantum of damages. That the burden of proof was on the appellant to prove
his case is in doubt. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides
that:
Whoever desires any court to give judgment as to any legal right or liability
dependant on the existence of facts which he asserts must prove that those
facts exist.
36. This is called the legal burden of proof. There is however evidential burden of proof
which is captured in Sections 109 and 112 of the same Act as follows:
109. The burden of proof as to any particular fact lies on the person who
wishes the court to believe in its existence, unless it is provided by any law
that the proof of the fact shall lie on any particular person.
112. in civil proceedings, when any fact is especially within the knowledge
of any party to those proceedings, the burden of proving or disproving the
fact is upon him.
37. The two provisions were dealt with in Anne Wambui Ndiritu –vs- Joseph Kiprono
Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap
80, the legal burden of proof lies upon the party who invokes the aid of the
law and substantially asserts the affirmative of the issue. There is however
the evidential burden that is case upon any party the burden of proving
any particular fact which he desires the court to believe in its existence
which is captured in Sections 109 and 112 of the Act.”
38. It follows that the general rule is that the initial burden of proof lies on the plaintiff, the
appellant in this appeal, but the same may shift to the respondents, the appellant in this appeal
depending on the circumstances of the case.
39. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party
who invokes the aid of the law and substantially asserts the affirmative of
the issue. That is the purport of Section 107 (i) of the Evidence Act,
Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast
upon any party, the burden of proving any particular fact which he
desires the court to believe in its existence. That is captured in Section 109
and 112 of law that proof of that fact shall lie on any particular person…
The appellant did not discharge that burden and as Section 108 of the
Evidence Act provides the burden lies in that person who would fail fi no

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evidence at all were given as either side.”

40. I agree that the Court of Appeal’s position in Daniel Toroitich Arap Moi –vs- Mwangi
Stephen Muriithi & Another [2014] eKLR espouses the correct legal position that:
“It is a firmly settled procedure that even where a defendant has not
denied the claim by filing a defence or an affidavit or even where the
defendant did not appear, formal proof proceedings are conducted. The
claimant lays on the table evidence of facts contended against the
defendant. And the trial court has a duty to examine that evidence to
satisfy itself that indeed the claim has been proved. If the evidence falls
short of the required standard of proof, the claim is and must be
dismissed. The standard of proof in a civil case, on a balance of
probabilities, does not change even in the absence of rebuttal by the other
side.”
41. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in
William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“In ordinary civil cases a case may be determined in favour of a party
who persuades the court that the allegations he has pleaded in his case are
more likely that not to be what took place. In percentage terms, a party
who is able to establish his case to a percentage of 51% as opposed to 49%
of the opposing party is said to have established his case on a balance of
probabilities. He has established that it is probable than not that the
allegations that he made occurred.”
42. Similarly, Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563,
586 held that;
“The balance of probability standard means that a court is satisfied an
event occurred if the court considers that, on the evidence, the occurrence
of the even was more likely than not. When assessing the probabilities the
court will have in mind as a factor, to whatever extent is appropriated in
the particular case, that the more serious the allegation the less likely it is
that the event occurred and, hence, the stronger should be the evidence
before the court concludes that the allegation is established on the balance
of probability…..”
43. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR,
the Judges of Appeal held that:
“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 a tribunal can say: we think it more probable than not; the
burden is discharged, but, if the probabilities are equal it is not.
This, burden 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…are equally (un) convincing, the party bearing the burden of proof
will loose because the requisite standard will not have been attained.”

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44. However, where there is credible evidence from the Plaintiff, the failure to adduce any
evidence by the defence may well mean that the plaintiff has attained the standard prescribed
in civil proceedings. It was therefore held in Janet Kaphiphe Ouma & Another –vs- Maries
Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, Ali Aroni, J citing the
decision in Edward Muriga through Stanely Muriga –vs- Nathaniel D. Schulter, Civil
Appeal No. 23 of 1997 that:
“In this matter, apart from filing its statement of defence the defendant
did not adduce any evidence in support of assertions made therein. The
evidence of the 1st plaintiff and that of the witness remain uncontroverted
and the statement in the defence therefore remains mere allegations…
Sections 107 and 108 of the Evidence Act are clear that he who asserts or
pleads must support the same by way of evidence.”
45. In this case, the only evidence on record was from the Respondent. According to him, he
was hit by the Appellant’s vehicle off the road. It was his evidence that the said vehicle
swerved off the road and hit him when he was waiting to cross the road. That evidence was
not rebutted.
46. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012]
eKLR the court stated as follows:-
“In my view, a statement made on oath should as a matter of fact be
expressly denied on oath. If not challenged, it remains a fact and the truth
for that matter.”
47. What are the consequences of a party failing to adduce evidence" In the case of Motex
Knitwear limited vs. Gopitex Knitwear Mills limited Nairobi (Milimani) HCCC No., 834
of 2002, Lessit, J citing the case of Autar Singh Bahra and Another vs. Raju Govindji,
HCCC No. 548 of 1998 appreciated that:
“Although the Defendant has denied liability in an amended Defence and
counterclaim, no witness was called to give evidence on his behalf. That
means that not only does the defence rendered by the 1 st Plaintiff’s case
stand unchallenged but also that the claims made by the Defendant in his
Defence and counter-claim are unsubstantiated. In the circumstances, the
Counter-claim must fail.”
48. Again in the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2
others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same
decision stated that itis trite that where a party fails to call evidence in support of its case, that
party’s pleadings remain mere statements of fact since in so doing the party fails to
substantiate its pleadings. In the same vein the failure to adduce any evidence means that the
evidence adduced by the Plaintiff against them is uncontroverted and therefore unchallenged.
49. In the case of Karuru Munyororo vs. Joseph Ndumia Murage & another Nyeri
HCCC No. 95 of 1988, Makhandia, J (as he then was) held that:
“The plaintiff proved on a balance of probability that she was entitled to
the orders sought in the plaint and in the absence of the defendants and or
their counsel to cross-examine her on the evidence, the plaintiff’s evidence
remained unchallenged and uncontroverted. It was thus credible and it is
the kind of evidence that a court of law should be able to act upon.”
50. In Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya)
Kisumu HCCC No. 68 of 2007 Ali-Aroni J. citing the decision in Edward Muriga

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Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant
did not adduce any evidence in support of assertions made therein. The
evidence of the 1st plaintiff and that of the witness remain uncontroverted
and the statement in the defence therefore remains mere
allegations...Section 107 and 108 of the Evidence Act are clear that he who
asserts or pleads must support the same by way of evidence.”
51. Similarly, in the case of Interchemie EA Limited vs. Nakuru Veterinary Centre
Limited Nairobi (Milimani) HCCC No. 165 B of 2000, Mbaluto, J held that where no
witness is called on behalf of the defendant, the evidence tendered on behalf of the Plaintiff
stands uncontroverted.
52. If one is still in doubt as to the legal position reference could be made to the case
Drappery Empire vs. The Attorney General Nairobi HCCC No. 2666 of 1996 where
Rawal, J (as she then was) held that where the circumstances leading to the deliveries of
goods are not challenged and stand uncontroverted due to the failure by the defendant to
adduce evidence, the standard of proof in civil cases (on the balance of probabilities) has been
attained by the Plaintiff.
53. In Vyas Industries vs. Diocese of Meru [1976 – 1985] EA 596; [1982] KLR 114, it was
held that an appellate court will not interfere with apportionment of liability unless the Judge
has come to a manifestly wrong decision or based his apportionment on wrong principles.
54. In this case there was evidence by the Respondent and her eye witness that the accident
occurred on a foot path and the Respondent was hit from behind. There was no other evidence
to challenge this evidence. Accordingly, what was pleaded in the defence without more could
not form a basis upon which liability could be found. The learned trial magistrate cannot
therefore be faulted for finding, based on the only evidence before him, that the Respondent
had proved that the accident was caused by the motor cyclist for whose negligent the
Appellant herein is vicariously liable and I find no justification for interfering therewith.
55. As regards quantum, in Woodruff vs. Dupont [1964] EA 404 it was held by the East
African court of appeal that:
“The question as to quantum of damage is one of fact for the trial Judge
and the principles of law enunciated in the decided case are only guides.
When those rules or principles are applied, however, it is essential to
remember that in the end what has to be decided is a question of fact.
Circumstances are so infinitely various that, however carefully general
rules are framed, they must be construed with some liberality and too
rigidly applied. The court must be careful to see that the principles laid
down are never so narrowly interpreted as to prevent a judge of fact from
doing justice between the parties. So to use them would be to misuse
them...The quantum of damages being a question of fact for the trial
Judge the sole question for determination in this appeal is not whether he
followed any particular rules or the orthodox method in computing the
damage claimed by the plaintiff, but whether the damages awarded are
“such as may fairly and reasonable be considered as a rising according to
the usual course of things, from the breach of the contract itself.” The
plaintiff is not entitled to be compensated to such an extent as to place him
in a better position than that in which he would have found himself had
the contract been performed by the defendant.”

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56. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil
Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate
court can interfere with an award of damages in the following terms:
“It is trite law that the assessment of general damages is at the discretion
of the trial court and an appellate court is not justified in substituting a
figure of its own for that awarded by the Court below simply because it
would have awarded a different figure if it had tried the case at first
instance. The appellate court can justifiably interfere with the quantum of
damages awarded by the trial court only if it is satisfied that the trial
court applied the wrong principles, (as by taking into account some
irrelevant factor leaving out of account some relevant one) or
misapprehended the evidence and so arrived at a figure so inordinately
high or low as to represent an entirely erroneous estimate.”
57. It was therefore held by the same Court in Sheikh Mustaq Hassan vs. Nathan Mwangi
Kamau Transporters & 5 Others [1986] KLR 457 that:
“The appellate court is only entitled to increase an award of damages by
the High Court if it is so inordinately low that it represents an entirely
erroneous estimate or the party asking for an increase must show that in
reaching that inordinately low figure the Judge proceeded on a wrong
principle or misapprehended the evidence in some material respect…A
member of an appellate court when naturally and reasonably says to
himself “what figure would I have made"” and reaches his own figure
must recall that it should be in line with recent ones in cases with similar
circumstances and that other Judges are entitled to their views or opinions
so that their figures are not necessarily wrong if they are not the same as
his own…”
58. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288;
[1990-1994] EA 47, the Court of Appeal held that:
“In effect, the court before it interferes with an award of damages, should
be satisfied that the Judge acted on wrong principle of law, or has
misapprehended the fact, or has for these or other reasons made a wholly
erroneous estimate of the damage suffered. It is not enough that there is a
balance of opinion or preference. The scale must go down heavily against
the figure attacked if the appellate court is to interfere, whether on the
ground of excess or insufficiency.”
59. In this case from the medical report prepared by PW4, Dr. Loiposha, the Respondent
sustained mild head injurie and spinal injury. In his opinion, the Respondent was satisfactorily
treated and was expected to recover through physiotherapy.
60. While agree that from that evidence the Respondent sustained soft tissue injuries, the said
injuries particularly the spinal injury cannot be said to have been minor soft tissue injuries in
light of the fact that for the Respondent to fully recover, she needed to undergo
physiotherapy.
61. I have considered the authorities and while I find the authorities relied on by the appellant
not exactly similar in terms of the injuries sustained, I on the other hand find that the award
was high considering the fact that the Respondent’s authorities were in respect of more
serious injuries. In the premises, I set aside the award made and substitute therewith an award
of Kshs 350,000.00. The same will accrue interest at Court rates from the date of the

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Mercy Mueni Mutuku v Susan Oyondi Ombogo [2021] eKLR

judgement before the trial court till payment in full. While the costs of the trial court are
awarded to the Respondent, each party will bear own costs of this appeal.
62. It is so ordered.
READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 12TH
DAY OF OCTOBER, 2021.
G.V. ODUNGA
JUDGE
Delivered in the presence of:
Mr Murithi for Mr Kinyanjui for the Appellant
Ms Thiongo for Ms Kamau for the Respondent
CA Susan

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