Mwagambo v Abdurahman (Civil Appeal E087 of 2025) [2026] KEHC 9942 (KLR) (2 July 2026) (Judgment)

Mwagambo v Abdurahman (Civil Appeal E087 of 2025) [2026] KEHC 9942 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9942 (KLR) Republic of Kenya In the High Court at Malindi Civil Appeal E087 of 2025 BK Njoroge, J July 2, 2026 Between Amina Mwagambo Appellant and Sufi Mohamed Abdurahman Respondent (Being an Appeal against part of the Judgment delivered by the Hon D. Wasike Principal Magistrate delivered on the 24th day of June, 2025 in Kilifi Senior Resident Magistrate’s Court Civil Suit No. 454 of 2023) Judgment 1.This is a Judgment on an Appeal arising out of the decision of Honourable D. Wasike Principal Magistrate delivered on 24th June, 2025. This is in respect to Kilifi Senior Resident Magistrate’s Court Civil Suit No. 454 of 2023. Background Facts 2.This is an Appeal arising from a running down claim. The facts thereof are similar to the Appeal in Malindi High Court Civil Appeal No. E086 of 2025 Fatuma Mwagambo vs Sufi Mohamed Abdurahman. 3.The Appellant was the unsuccessful Plaintiff while the Respondent was the Defendant before the Lower Court. 4.On 6/5/2022 the Plaintiff was said to have been travelling as a Pillion Passenger on a Motor Cycle. The same was hit by a three-wheeler vehicle Registration Number KTWB 236Z a Piaggio Tuk Tuk, “herein after referred to as the Tuk Tuk.”. 5.The Appellant pleaded that she sustained the following injuries;a.Bruises and abrasions left elbow, left waist area, left thigh/let, left foot and both knees.b.Blunt object trauma soft tissue injuries to the shoulders. 6.The Appellant held the Defendant liable for negligence for the acts of his driver, sent, agent or employee. She pleaded the following particulars,Particulars of negligence on the part of the Defendant, his authorized driver, servant, employee and/or agenta.Driving at an excessive speed in the circumstances;b.Emerging onto a major road from a tributary road without first ascertaining on ensuring that it was safe to do so and when it was unsafe and dangerous to do so;c.Driving the said Three Wheeler Vehicle Registration No. KTWB 236Z Piaggo Tuk Tuk in a manner that was dangerous to other road users;d.Failing to keep any or any proper look out whilst driving on the said road or to have any or any sufficient regard for Traffic that was or might be reasonably expected to be on the said road;e.Failing to give way to traffic on the said road, which is a major road;f.Failing to stop at the junction to the said major road in compliance with the Traffic Rules;g.Driving Three Wheeler Vehicle Registration No. KTWB 236Z Piaggo Tuk Tuk onto the path of the Motor Cycle in attempt to join the main road thereby occasioning the said accident;h.Failing to slow down or to be ready to stop at the said junction in compliance with the Traffic Code and/or Rules in order to avoid the accident;i.Failing to stop, slow down, swerve or in any other way manage or control the said Three Wheeler Vehicle Registration No. KTWB 236Z Piaggo Tuk Tuk as to avoid the accident;j.Failing to give any warning, to hoot, signal, flash and/or give a clear and/or any indication of his approach;k.Cutting into the path of the aforesaid Motor Cycle which was being ridden along the said road thereby occasioning the accident;l.Failing to heed the presence of the Motor Cycle Registration Number KMFS 684F HAOJIN being driven along the said road;m.Failing to have any or any sufficient regard for the safety of other road users driving on the said road;n.Failing to have any or any sufficient regard for the safety of other road users driving on the said road;o.Obstructing the way to the said Motor Cycle;p.Causing or permitting the said three wheeler vehicle to ram into and collide with the said Motor Cycle;q.Causing and/or permitting the said three wheeler vehicle to be and/or to become and/or to remain a danger to persons lawfully using the road;r.Failing to exercise reasonable care and attention in the driving and management of the said motor vehicle;s.Driving without due care and attention whilst on the said road;t.Failing to apply brakes in sufficient time or at all so as to avoid the said accident;u.Driving a defective and/or an un-roadworthy three wheeler vehicle;v.Failing to obey and/or observe the Provisions of the Traffic Act and/or Highway Code;w.Allowing and/or causing the Plaintiff to suffer injuries, loss and damage; 7.The Appellant sought general and special damages against the Respondent for the injuries that she sustained. 8.The Respondent entered an appearance and filed a Statement of Defence. He denied the Appellants claim and specifically that he was the owner of the Tuk Tuk or that the Appellant was a pillion passenger in a Motor Cycle that was hit by the Tuk Tuk. The accident was denied. 9.In the alternative, the Respondent pleaded that the Appellant or the Motor Cycle Rider was the sole author or contributories to the accident in negligence. The following particulars were pleaded.Particulars of Negligence and Contribution of The Plaintiff;i.Failing to take any or any adequate precaution for his safety.ii.Failing to heed the instructions on safety precautions like wearing a seatbelt when travelling.iii.Voluntarily assuming risk of an accident occurring while board the said Motor Cycle.iv.Failing to raise alarm, when the said Motor Cycle was being driven negligently and alighting because of the same.v.Volent non fit injuria.Particulars of Negligence of The Motor Cycle Ridera.Failing to take any or any adequate precaution for his own safety and those of pillion passengers.b.Failing to wear and provide any adequate protective apparel as designed by law to his passenger.c.Riding without due regard to other road users.d.Riding at an excessive speed in the circumstances.e.Failing to properly steer and control his motorcycle.f.Riding in a dangerous and careless manner.g.Failing to keep to the riding path.h.Encroaching into the path of motor vehicle registration number KTWB 236Z.i.Failing to wear reflective jackets.j.Riding in a zig zag manner.k.Failing to move to avoid the accident. 10.The matter proceeded for trial where the Appellant and two witnesses testified. 11.The Trial Magistrate in a Judgment delivered on 24/6/2024 dismissed the Appellant’s case. The Court was not satisfied that liability had been proved. 12.This has triggered an Appeal to the Court. The Appellant has filed a Memorandum of Appeal relying on eight (8) grounds as follows:1.The Learned Trial Magistrate erred in law and in fact in making a finding that the Defendant/Respondent was not to blame for the accident when it was manifestly clear from the evidence adduced before the Court that the Defendant/Respondent was wholly to blame for the accident.2.The Learned Trial Magistrate erred in law and in fact in failing to hold the Defendant/Respondent 100% liable for the accident based on the evidence on record.3.The Learned Trial Magistrate misdirected herself in law and fact in making a finding that the rider of the Motor Cycle in which the Plaintiff/Appellant was travelling in was to blame for the accident based on no evidence despite of the overwhelming and uncontroverted evidence to the contrary.4.The Honourable Magistrate erred both in law and in fact in failing to appreciate the evidence tendered by the Plaintiff/Appellant in proving her case when she proceeded to consider extraneous issues and purported evidence not presented or led in evidence or at all in arriving at the said decision in favour of the Defendant/Respondent against the Plaintiff/Appellant.5.The Learned Magistrate misapprehended the evidence on record thereby holding the Appellant had failed to prove liability of the part of the Defendant/Respondent which was unjust and unfair in the circumstances.6.That the Honourable Magistrate erred in both fact and law by failing to appreciate the facts laid before her by the Plaintiff/Appellant but instead proceeded to re-state her own versions of facts in complete departure from the pleadings before her apparently with the aim of disallowing the Plaintiff’s claim.7.The Learned Trial Magistrate misdirected herself in law and fact in failing to address her mind to the Rules in the Highway Code and the Provisions of the Traffic Act pertaining to the right of way between motorists on the Highway vis a vis motorists joining the Highway from a tributary road.8.The Learned Trial Magistrate misdirected herself in law and in fact by failing to consider the Plaintiff/Appellant’s submissions and judicial authorities tendered by the Plaintiff/Appellant’s counsel with regard to liability. 13.The Appellant seeks the following reliefs in the Appeal;a.The Appeal herein be allowed with costs.b.The finding of the Court on Liability made on 24th day of June, 2025 be set aside and substituted with an order holding the Defendant/Respondent 100% liable; and orc.This Honourable Court do proceed to analyze the evidence tendered by the Plaintiff/Appellant and the submissions of the parties on record and make its own finding on Liability as the Court deems fit.d.The costs of the Suit in Kilifi Senior Resident Magistrate’s Court Civil Suit No. 454 of 2023 be paid to the Plaintiff/Appellant by the Defendant/Respondent.e.The costs of this Appeal be paid to the Plaintiff/Appellant by the Defendant/Respondent.f.Any such orders as the Court may deed just and expedient. Issues for Determination 14.Having considered the Record of Appeal, the Supplementary Record of Appeal, the Memorandum of Appeal and the submissions of Counsel, the Court frames two (2) issues for determination.a.Whether the Trial Court erred in finding that Liability had not been proved.b.Whether reliefs lie in this Appeal. Analysis 15.This is a first Appeal. The Appeal raises issues of both facts and law. The only way to determine it is by re-examining the evidence adduced before the trial Court in order to reach an independent finding. This is the role of the first Appellate Court as discussed in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court .. is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...” a. Whether the Trial Court erred in finding that Liability had not been proved. 16.From the Trial Court’s analysis of the evidence, the accident occurred along the main road. That it was the motor cycle that impacted upon or rammed into the Tuk Tuk. The evidence of PW2 is that it is the Motor cycle that was joining the main road from a feeder road. From the analysis of the evidence, it was for the motor cycle rider to stop and give way before joining a major road. That is as per the Traffic Act and the Highway code. The point of impact was on the side door of the Tuk Tuk by the front of the Motorcycle. This also points to the Motor cycle having joined the major road when the Tuk Tuk had already joined. 17.As to whether the Tuk Tuk made a sudden move of joining the major road, the Court notes that each driver owes a duty of care to other road users. To drive safely and keep safe distances, to swerve, brake and stop or act in any manner to avert an accident. The evidence of the eye witness points to a Motor cycle rider joining a road when the visibility was very clear. No evidence was led to show that the Motor cycle rider was obscured or prevented from seeing the Tuk Tuk. 18.The Police lay blame upon the Motor cycle rider and he is said to have been carrying 3 pillion passengers and a juvenile. Much as it is a common scene along our urban and rural roads, carrying 3 pillion passengers is overloading a motor cycle. It makes control and maneuverability problematic and difficult. 19.This Court having analysed the evidence is unable to fault the analysis of the Trial Court. It arrives at a conclusion similar to that of the Trial Court. This Court reminds itself of the principles set out in Peters –vs- Sunday Post Ltd [1958] EA 424. The Court stated as follows: -“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.” 20.In the circumstances the Court is not persuaded and no evidence was led to show that the Respondent’s Tuk Tuk hit the Motor cycle or that liability could attach. There can be no liability without fault. (b) Whether reliefs lie in this Appeal 21.Having failed to prove any liability, it follows then that no general damages can lie. The Trial Court made the right call. 22.As to the costs, the same follow the event. The Appeal having failed the Respondent is awarded the costs thereof. Determination 23.The Appeal is hereby dismissed in its entirety for lack of merits. 24.The Respondent is awarded the costs thereof. 25.It is so ordered. DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026NJOROGE BENJAMIN KJUDGEIn the presence of:Miss Langat for the Appellant.N/A for KRK for the RespondentMr. John Paul – Court Assistant