https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7076

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEALLATE DIVISION** **CIVIL APPEAL NO. E161 OF 2025** **BAKEMARK LTD ………………………..….………….1ST APPELLANT** **JOHANA MAINA CHEGE……………….……………2ND APPELLANT** **VERSUS** **ISAAC OMONDI OJINO……………………………..RESPONDENT** *(Being an Appeal arising from the Judgment of hon. Justine Asiago (RM) in Milimani SCCC No. E1406 of 2025 delivered on 3rd July, 2025)* **JUDGEMENT** 1. The Respondent in this Appeal ISAAC OMONDI OJINO sued the two Appellants BAKEMARK LTD and JOHANNA MAINA CHEGE in Nairobi Milimani SCCC No. E1406 of 2025 seeking general damages and special damages of Kshs.5,550/- for injuries the Respondent sustained on 30/7/2024 while the Respondent was riding motorcycle Registration No. KMGB 626N when it was involved in an accident with Motor Vehicle Registration No. KDG 260H owned by the Appellants. 2. The case proceeded under Section 30 of the SCCCA. 3. The trial Court found that there was no dispute that the accident occurred. 4. The Police abstract blamed the Appellants for the accident which occurred along Lunga Lunga Road. 5. The Respondent was riding his Motor Cycle along Lunga Lunga Road when the Motor Vehicle Registration No. KDG 260H failed to stop to give him the right of way and made a U-turn to exit the road and it knocked the motor cycle down. 6. The 2nd Appellant stated in his statement that he had left a Petrol Station and he was joining the main road. He said signaled and entered the main road. 7. He realized a motor cycle has knocked him and he saw the Respondent lying on the road unconscious. 8. The Trial Court apportioned liability at 80:20 in favour of the Respondent against the Appellants. 9. The Trial Court assessed damages as follows; 10. ***General damages Kshs.350,000.00*** 11. ***Special damages Kshs. 5,550.00*** ***Total Kshs.355,550.00*** ***Less 20% contributing negligence Kshs.284,400.00*** 1. The Respondent sustained the following injuries; 2. ***Fracture of the right zygomatic arch*** 3. ***Blunt injuries on the right check*** 4. ***Blunt injuring to the upper limbs*** 5. ***Blunt injuries to the lower limbs*** 6. The Appellants have appealed against the Judgment on the following grounds 7. ***That the Learned Trial Magistrate erred in finding the Appellants 80% liable for the accident.*** 8. ***That the Learned Trial Magistrate erred and misdirected himself in law and in fat by finding the Appellants 80% liable for the accident and thus failed to appreciate the principles appliable in the apportionment of liability.*** 9. ***That the Learned Trial Magistrate erred in law and in fact by failing to consider the role played by the Respondent in causing the accident.*** 10. ***That the Learned Trial Magistrate erred in law and in fact by failing to consider the Appellant’s submissions and judicial authorities thereby arriving at a wrong decision.*** 11. The parties filed written submissions as follows; The appellants, Bakemark Ltd and Johana Maina Chege, submitted that they are appealing a judgment delivered on July 3, 2025, in Milimani Small Claims Court Case No. E1406 of 2025. 12. In that decision, the trial court found the appellants 80% liable for a motor vehicle accident involving vehicle registration number KDG 260H. 13. The appellants argue that this apportionment of liability is manifestly erroneous, entirely unsupported by the evidence, and contrary to established legal principles governing negligence and the burden of proof under Section 107(1) of the Evidence Act. 14. To support their argument, the appellants point to conflicting police abstracts dated August 1, 2024. While the respondent’s abstract noted that investigations were still pending, the abstract submitted by the appellants reveals that law enforcement concluded their investigations, blamed the respondent for the accident, and subsequently charged him with driving without due care. 15. This is further reinforced by an investigation report dated April 2, 2025, and a driver statement from March 24, 2025. 16. These documents detail that the respondent, while riding a motorcycle, unlawfully overlapped on the left side of another vehicle that had stopped to give way to the appellants. 17. In doing so, the respondent rammed into the rear left side of the appellants' vehicle. 18. The appellants maintain that this conduct violated the Traffic Act, demonstrated a reckless disregard for road safety, and establishing the respondent as the sole author of his own misfortune. 19. Citing legal precedents such as **Bwire v Wayo Sailoki and Mwema Musyoka v Paulstone Shamwama Sheli**, the appellants assert that there is no liability without fault in Kenya and that the evidential burden shifts based on the weight of the evidence presented. 20. They argue that the respondent failed to present any credible evidence to establish negligence on the part of the appellants' driver, who was driving lawfully and cautiously within his lane. 21. The proximate cause of the accident was the respondent's sudden, unforeseeable, and unlawful overlapping and the appellants contend that there was no factual or legal basis for the trial court to assign them any blame. 22. Consequently, the appellants urged the appellate Court set aside the trial court's finding, substitute it with a determination holding the respondent 100% liable, and award them the costs of both the appeal and the lower court proceedings. 23. The respondent submitted that this appeal arises from an initial judgment delivered in the Milimani Small Claims Court, Civil Suit No. E1406 of 2025. 24. The main issue presented for determination was whether the trial court erred in apportioning liability for the underlying road traffic accident in a ratio of 80:20. 25. The respondent argues that the trial court's apportionment of liability was proper, reasonable, and fully justified based on the evidence adduced. 26. To anchor this position, the respondent invokes Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya, asserting the foundational principle that any party seeking a legal right or liability must prove the underlying facts upon which that claim depends. 27. The submissions further reference the legal standards established in **Kanyangu Njogu v Danie Kimani Maingi** and **William Kabogo Gitau v George Thuo & 2 others,** noting that a balance of probability is satisfied when one outcome is shown to be more probable than not, and emphasizing that determining liability in traffic accidents is not a rigid scientific exercise. 28. A pivotal point in the respondent's argument is that the appellants, Bakemark Limited and Johana Chege, failed to attribute any acts of negligence to the respondent in their response to the statement of claim. 29. Furthermore, the appellants did not file a police abstract or alternative evidence to counter the respondent’s testimony or establish any contributory negligence. 30. Citing the precedent set in **Otieno & another v Njuguna**, the respondent highlights that the burden rests on the defendants to prove on a balance of probability that a claimant failed to act as a wise and prudent road user and is partially to blame for their own injuries. 31. The appellants failed to demonstrate any such contributory acts, the respondent contends that the trial court's finding should stand. 32. The respondent urged the appellate Court dismiss the appeal with costs and uphold the findings and determination of the lower trial court. 33. The issues for determination in this appeal are as follows; 34. **Whether the trial court was wrong to apportion liability at 80:20 in favour of the Respondent.** 35. **Whether the Respondent bore any contributory negligence.** 36. The Court has carefully considered the record of appeal, the submissions by both parties, and the law. 37. The main contention by the Appellants is that the trial court erred in finding them 80% liable yet the police abstract they produced blamed the Respondent, who was allegedly charged with driving without due care. 38. However, the trial court had before it the Respondent’s unchallenged testimony that the Appellants’ motor vehicle made a sudden U-turn and failed to give him the right of way, knocking him off his motorcycle. 39. While the Appellants argued that the Respondent was overlapping unlawfully, they did not adduce the investigation report or the charge sheet to definitively prove this fact in the civil trial. 40. The standard of proof in civil cases is on a balance of probabilities, as per Section 107 of the Evidence Act, Cap 80. The trial court evaluated the evidence and chose to believe the Respondent’s version of events. 41. Regarding contributory negligence, the Appellants failed to discharge the burden of proving that the Respondent acted in a manner that contributed to his own injuries. 42. Where there are conflicting versions of an accident, a court may apportion liability based on the degree of fault discernible from the evidence. 43. The Appellants’ driver admitted he was joining the main road from a petrol station. It is a basic tenet of traffic law that a driver entering a highway from a side road must ensure it is safe to do so and give way to vehicles already on the main road. 44. The fact that the Appellants' vehicle made a U-turn to exit the road suggests a sudden maneuver that could cause an accident. 45. Having re-evaluated the evidence, this Court finds that the Appellants were the primary cause of the accident. 46. However, the Respondent, as a motorcyclist, has a duty to keep a proper lookout and take evasive action to avoid a collision. 47. The apportionment of 80:20 is an estimate of the degree of fault. This ratio is neither inordinately high nor low given the circumstances. 48. The trial court did not misdirect itself. Consequently, the appeal lacks merit. The judgment of the trial court is upheld in its entirety, and this appeal is dismissed with costs to the Respondent. 49. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 22nd day of May, 2026.** 1. **N. ONGERI** **JUDGE** **In the presence of:** Mr Omagwa for the Appellant No appearance for the Respondent Chrispine – Court Assistant