https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9477

Obiero v Musabagi (Civil Appeal E001 of 2025) [2026] KEHC 9477 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9477 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E001 of 2025 DK Kemei, J July 2, 2026 Between Brian Anyango Chieng Obiero Appellant and Caroline Nangira Musabagi Respondent (Being an appeal from the judgment of the Hon. Mkala Jacob Punga (RM), delivered on 10th, March, 2025 in Siaya Small Claims Court Case No. E076 of 2024.) Judgment 1.The appeal arises from the judgment of Hon. Mkala Jacob Punga (RM) delivered on 10th March, 2025, in Siaya Small Claims Court Case No. E076 of 2024 wherein he apportioned liability against the Appellant at 100%, awarded the Respondent material loss in the sum of Kshs 466, 930/ plus costs assessed at Kshs 30,000/ as well as interest. 2.The Appellant, being aggrieved and dissatisfied with the whole Judgment and/or decision of the learned trial Magistrate, lodged his Memorandum of Appeal dated 4/4/2025 wherein he raised the following grounds of appeal:i.The learned trial Magistrate erred in law and in fact in arriving at the finding that the Appellant denied being the owner of Motor vehicle KBV237A yet in fact the Appellant had admitted to being the owner of motor vehicle KBV237A.ii.The learned trial Magistrate erred in law and fact when he made a finding that the Appellant was the owner of motor vehicle registration KAJ665N yet the Appellant denied being the owner of the motor vehicle KAJ665N and the Respondent failed to prove that the Appellant was the owner of motor vehicle KAJ665N.iii.The learned trial Magistrate erred in law and in fact when he failed to make a finding that the Respondent was to blame for the accident for having driven her motor vehicle KDD613S in a zigzag way after being blinded by lights from an oncoming vehicle from the opposite direction.iv.The learned trial Magistrate erred in law and in fact in that he failed to consider the evidence of the Appellant in making his determination.v.The learned trial Magistrate erred in law and in fact when he failed to analyze in totality all the documents presented to him in making his determination.vi.The learned trial Magistrate erred in law and in fact when he erroneously failed to consider and appreciate that in the circumstances of the case, the Respondent's motor vehicle Registration number KBV271A was not to blame for the accident.vii.The learned trial Magistrate totally erred in law and fact in that he failed to consider or sufficiently consider the material placed before him and as a result came to wrong conclusions and prejudiced the appellant.Reasons Wherefore the appellant prays that;i)This appeal be allowed and the judgment and decree of the court appealed from be set aside.ii)The court makes a finding that the Respondent failed to prove her case and that the court enters judgment as prayed for by the Appellant in his Response to Claim dated 10th January 2025.iii)Costs of the appeal be awarded to the Appellant. 3.This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion as to whether or not to uphold the decision of the trial court. The court will also have to take into account the fact that it neither heard nor saw the witnesses as they testified and must give due allowance for that. See Selle Vs Associated Motor Boat Co Ltd & Another [1968] EA 123. Also in Abok James Odera T/A A.J Odera & Associates –vs- John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR where it was held that:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way” 4.The particulars of the accident were that on or about the 23/12/2021 at about 2026 hrs, the Claimant was carefully and lawfully driving motor vehicle registration number KDD 613S along Siaya – Nyadorera road to her rural home in Budalangi when at Kambi Musa area, there was an oncoming motor vehicle which blurred her vision and that she suddenly came across a motor vehicle registration No. KBV 237A which was unlawfully parked on the road without warning signs such as life saver sign, parking lights or even leaves placed on the road to alert other road users of a stalled motor vehicle. That due to the obstruction, the claimant rammed into the rear of the stalled motor vehicle and consequently her motor vehicle was extensively damaged. That the accident was reported at Siaya Police Station and that the Respondent (Appellant) as owner of motor vehicle registration No. KBV 237A was blamed for the accident for causing obstruction. That the Claimant (Respondent herein) holds the Respondent 100% liable for the accident. 5.No. 84197 Pc Christiano Onyango (CW1) presented the police abstract in respect of motor vehicles registration numbers KDD 613S and KBV 237 over an accident which took place on 23/12/2021 at 2026 hours along Siaya Nyadorera Namba Ka Musa area. That mv KBV 237A make Foton Tipper lorry had a mechanical problem and had been parked on the road while M/v KAJ 665N Toyota Landcruiser belonging to one Brian Obiero while KDD 613S belonged to Caroline Nangira. That M/v KAJ 665N had been brought to rescue KBV 237A which had stalled. That the driver of KDD 613S was travelling from Siaya direction towards Nyadorera general direction and on reaching the scene, she rammed on the vehicles and that her vehicle was extensively damaged. That the owner of KBV 237a was to blame as he had parked it on the road instead of off the road and that if it had mechanical problems then a life saver should have been placed on the road to notify others of an alert That KAJ 665N was not parked on the road. He produced the abstract as exhibit one and OB filed on 15/1/2025.On cross-examination, he stated inter alia; that he drew a sketch map but did not produce it; that there is no mention of mv KAJ 665N on the abstract; that there was impact between KBV 237A and KAJ 665N; that KAJ 665N had some damage and that he visited the scene and recorded it in the OB summary; that there was no impact between KBV 237A and KDD 613S; that KDD 613S knocked KAJ 665N from behind; that KAJ 665N belongs to Brian as he owns both vehicles as from the police abstract; that details of KAJ 665N is not captured on the police abstract; that he maintained that Brian was responsible for the accident as he was to be charged with an offence of obstruction but he was yet to be taken to court; that he reached the scene immediately; that KDD 613S and KAJ 655N were on the road. On re-examination, he maintained that it was Brian who caused the accident. 6.Caroline Nangira Musabagi (CW2) adopted her witness statement dated 15/1/2025 as her evidence in chief.On cross-examination, she stated inter alia; that her vehicle was behind KAJ and that KDD had no direct impact on KBV; that she knocked mv KAJ 665N and that her vehicle was damaged on the front side; that she was blaming mv KAJ; that she blamed Mv KAJ 655N for the accident; that she does not have a search certificate for KAJ or KBV; that the accident took place around 2000 hours and that she was driving towards the same direction as KAJ and KBV; that the tipper was facing the opposite direction and was partially on the road; that there was impact between KAJ and KBV; that damage was on KDD which knocked KAJ from the back; that KBV was not close to her vehicle KDD; that there was another between hers and the tipper. 7.Clement Asike (CW3) stated that he worked as a motor assessor for ICS Insurance. That he prepared the assessment for mv KDD 613S. That he produced the motor vehicle assessment report as exhibit 3 as well as the fee note as exhibit 4.On cross-examination, he stated inter alia; that he is a mechanical engineer and a licensed motor assessor; that the damage was on the front. 8.Vitalis Juma Masinde (CW4) testified that he works with ICEA lion Insurance as the legal assistant. He produced several documents namely, payment receipt, letter dated 6/1/2022, towing receipt dated 28/12/2021, payment voucher dated 9/3/2022, vouchers dated 22/2/2022 and 17/1/2022 as exhibits. 9.Brian Onyango Chieng Obiero (RW1) adopted his statement dated 20/1/2025 as his evidence in chief. He produced photographs taken at the scene of accident and also produced the electronic certificate.On cross-examination, he stated inter alia; that the accident occurred at night; that there were four vehicles; that he was at the scene and was not driving as he had gone there to rescue a lorry which had broken down and it was KBV in which he had taken out an insurance cover over it in his name; that according to the police abstract, he was listed as the driver; that he was not charged with obstruction; that KAJ was parked in front of the lorry to provide light; that the lorry was parked on the right side of the road but outside facing Siaya; that KAJ was on the left side of the road but outside facing Nyadorera; that they were on the same side of the road; that KAJ was the land cruiser; that he was at the scene of the accident; that he does not own KAJ; that the photographs were taken by Absalom. 10.Absalom Okello (RW2) adopted his statement dated 10/1/2025. He stated that he is the one who took the photographs using an IPhone.On cross-examination, he stated inter alia; that the accident occurred at around 9.00 PM or thereabouts; that they are not related to Brian as he had not known him; that he was driving towards the scene of the accident; that the accident involved three vehicles; that KAJ was between the lorry and KDD; that KBV was heading in the opposite direction from Siaya; that he does not know who was driving KAJ or KBV; that photographs do not show the number of the vehicle; that the motor vehicles involved in the accident were KDD and KAJ. 11.The learned trial magistrate later considered the matter and came up with the impugned judgement. 12.The appeal was canvassed by way of written submissions. Both parties complied. 13.It was submitted that the accident out of which the Respondent sustained material damage was as a result of her own misfortune. It was contended that there was no contact between the Respondent’s motor vehicle and that of the Appellant herein as confirmed from the evidence. That at page 103,104 and 105 of the Record of Appeal is the main testimony of CW1, the traffic Officer. The Respondent stated that there was no direct impact between motor vehicle KBV 237A which belonged to the Appellant and Motor vehicle KDD 613S which belonged to the Respondent. CW2 the Respondent also testified that there was no impact between motor vehicle KDD 613S and KBV 237A which was confirmed by the Appellant and the Appellant’s witness. From all the witnesses that testified, there was no impact between the Appellant’s motor vehicle KBV 237A and the Respondent’s motor vehicle KDD 613S. 14.It was pointed out by the Appellant that the impact of the motor vehicle KDD had was with motor vehicle KAJ wherein no evidence of ownership of the same was adduced before the court. That the Respondent’s testimony is corroborated at page 45 of the record of appeal which had her amended witness statement at paragraph 4 where she says,“on reaching Kambi Musa area at about 20:26hrs, there was an oncoming motor vehicle which blurred my vision and I suddenly came across a motor vehicle registration number KBV 237A and KAJ 665N which were unlawfully parked on the road….”That from the statement above, it was clear that the cause of the accident was the blurry vision caused by an oncoming vehicle which blurred her vision and suddenly rammed into motor vehicle KAJ 665N. It was contended that from the photos that were adduced by the Appellant, it supports the averments of all the witnesses that the impact of the accident was the Respondent’s motor vehicle KDD 613S knocking motor vehicle KAJ 665N from behind. That from the photos adduced, it was demonstrated that motor vehicle KBV 237A and KAJ 665N were off the road. 15.It was further contended that the Respondent (Claimant) was unable to demonstrate that motor vehicle KBV237A and KAJ 665N were on the road. In the case of George Kinuthia Ngure v Benson Mwangi Maina (2025), the High Court clarified that a police abstract is merely an administrative record that an accident occurred but it does not prove negligence or causation. Also, in Francisca Njeri Mwangi v James K. Mwangi (2009) it was held that a police abstract is not conclusive evidence of the facts or fault, but merely a record of the initial report.That the Appellant admitted being the owner of motor vehicle KBV 237A which was parked off the road but denied being the owner of motor vehicle KAJ 665N which was hit from behind by the motor vehicle KDD which belonged to the Respondent. 16.It was submitted that the trial Magistrate also erred in failing to analyze that the Respondent was blinded by full lights from an incoming vehicle which caused her to veer off the road and knock motor vehicle KAJ 665N which was off the road. That the trial magistrate failed to find that there was a contributing factor from a third party who caused her to be involved in an accident that caused damage to her motor vehicle. Further, that the trial Magistrate failed to analyze that the evidence of Pw1 who was crucial witness was full of inconsistences and gaps and that her evidence on a balance of probabilities could not have caused liability to be on the Appellant. 17.It was submitted that the trial Magistrate erred in law and in fact in finding that the Appellant was liable for the accident upon which motor vehicle KDD was damaged. That the trial magistrate failed to analyze the testimony of the Respondent both through her witness testimony at page 45 of the record of appeal and the cross examination at 103 to 105 of the Record of Appeal. There was no analysis by the magistrate as the admission by the Respondent that her vision was blurred by an oncoming vehicle which had full lights which blurred her vision. That the trial Magistrate did not take into consideration the speed at which the Respondent was driving at the time she had a blurred vision which led her to knocking motor vehicle KAJ 665N. It was also contended that the trial Magistrate erred in law and in fact in not finding that that there was no impact between motor vehicle KDD 613S and motor vehicle KBV237A. That at page 107 of the proceedings, CW2 the Respondent admitted that there was no impact between motor vehicle KBV and motor vehicle KDD. The Respondent also admitted knocking motor vehicle KAJ 665N Toyota Landcruiser. That the Appellant denied being the driver of motor vehicle KAJ 665N and thus there was no evidence adduced to show that the Appellant was the driver or the owner of motor vehicle KAJ 665N. 18.It was further contended that the trial court did not analyze the evidence of the Appellant’s witness who was the only eye witness to the accident who testified in court. That at page 111 and 112 of the Record of Appeal while being cross examined, the Appellant’s witness categorically stated the events of the night and how the accident happened. 19.It was also submitted that the trial Magistrate also erred in law and in fact in finding that the Appellant was the driver of the motor vehicle KAJ 665N yet the Appellant denied being the driver of motor vehicle KAJ 665N or the owner thereof. That there was no evidence adduced by the Respondent to prove that the Appellant was the registered owner of motor vehicle KAJ 665N and thus it was an error on the part of the trial Magistrate to lay blame on the Appellant. In the case of Mumbi M’Nabea v David M. Wachira (2016) it was held that courts must assess oral and documentary evidence to decide which version of events is more likely to have happened. That the trial Magistrate erred in finding that the Appellant was liable for the accident yet the Respondent was categorical in her evidence that what caused the accident was the blurry vision once there was an oncoming vehicle with full lights. In Githinji v Ngugi & 2 others (2025) the court set aside a 100% liability ruling because the plaintiff failed to establish "proof of fault." The court noted that the mere fact an accident happened is not adequate and that specific evidence of negligence must be adduced. Again, in Mwangangi v Gathogo (2025) the suit was dismissed because the plaintiff failed to prove beyond a balance of probability that the respondent was responsible. The court noted that even if a defendant does not oppose the production of documents, it does not mean they have admitted liability.That Section 110 of the Law of Evidence Act deals with the aspect of proof of admissibility. That the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. That the Respondent did not prove her case on a balance of probability and that the Appeal be allowed with costs to the Appellant. In Mwangi & another v Oginga (2025) it was held that in the absence of clear proof pinpointing who primarily caused the accident, both parties equally responsible (50:50) rather than dismissing the case entirely. 20.The Respondent submitted that the jurisdiction of this Court to hear appeals from the Small Claims Court is limited pursuant to the provisions of Section 38 of the Small Claims Court Act. In the case of Kiratu -vs- Okajo (Civil Appeal No. E1059 of 2024) (2025) KEH 13912 (KLR) (CIV) (2nd October, 2025), this Court albeit differently constituted Justice T.M Cherere Stated:“......Section 38 of the Small Claims Court Act, 2026 restricts appeals from the small claims court to points of law only; As such, this Court's jurisdiction extends only to questions of legal error, misdirection, or misapplication of principles."Reliance was placed In the case of Direct Line Assurance Co. Ltd. vs. Nyawa (Civil appeal 157 of 2022) KEHC 20201 (KLR) (22 June 2023) (Judgment), where the court reasoned as follows:-“However, appeals from the small claims court are different. This is the first and last Appeal. It is an appeal on points of law. This then takes the same turn as an appeal to the court of appeal, where the court gives deference to finding of fact. Only when the findings of fact are based on no evidence will that be seen as a point of law."21. Secondly, the Court of Appeal in Bashir Haji Abdullahi -vs- Adan Mohammed Nooru & 3 Others eKLR, while addressing the question whether the Memorandum of Appeal on a second appeal raised factual issues, stated as follows;-“A perusal of the memorandum of appeal filed herein immediately shows that there is merit in the objections of appeal filed herein immediately shows they were joined by the 3rd and 4th Respondents as well. In no less that eleven grounds of appeal, the appellant charges that "the learned judge erred in law and fact" in some respect or other. We must respectfully state that it is rather mind-boggling that counsel preparing a memorandum of appeal in a matter such as is before us, would add that trouble-inviting pair of words "and fact" in the face of a plain and straight-forward statutory exclusion of matters of fact from this Court's consideration." 22.It was submitted that the appeal must fail for several reasons. That the question of whether the Appellant was the owner of Motor Vehicle Registration No. KAJ 655N was not resolved by the Appellant in that the Respondent filed an amended statement of claim on the 15th January, 2025 and that the Appellant did not file a response/reply denying the question of ownership. In Thurarira Karauri -vs- Agnes Mocheche (1997) eKLR the court stated that;“Where ownership is denied, it was incumbent on the Plaintiff to place before the judge a Certificate of search signed by the Registrar of Motor vehicle showing the registered owner of the lorry."Learned counsel urged the Court to find that the Appellant did not file amended response to deny ownership.23. Further, the Appellant, while being cross-examined at page 110 of the Record of Appeal stated;"I am saying what was there, KAJ was the land cruiser. I was the one driving it."The testimony of the Police Officer recorded at page 104 of the Record of Appeal, line 15, the Investigating Officer stated;"KAJ 665N belongs to Brian and I don't have ownership documents and on Police abstract dated 28/12/2021 indicates Brian is the owner of the two motor vehicles". 24.It was submitted that based on the information gathered by the police on the OB extract which was submitted in evidence by the Respondent's witness i.e. the Police Officer, the aspect of ownership of the motor vehicles were sufficiently proved on a balance of probability. To this extent, the trial court cannot be faulted on its finding. 25.Secondly, on grounds number 3, 4, 5, 6, 7 & 8 of the appeal, it was submitted that these grounds are anchored on the Court's finding on the issue whether the Appellant was liable for the accident and, that is an issue of liability. The Appellant has not demonstrated how the trial Court misdirected itself in evaluating the facts of the case and decision reached thereto.In Tonui v Kuber Agency (Civil Appeal No. E015 of 2023) (2024) KEHC 11084 (KLR), the High Court in a persuasive decision emphasized that even when reliance is placed on the doctrine of res ipsa loquitor, liability arises from the facts proved and not as a matter of law.Also, in In the case of Fidelity Insurance Company Ltd-vs- Korir (Civil appeal 13 of 2023) KEHC 3365 (KLR) (22 March 2024) (Ruling), the Court appreciated the meaning and import of the provisions of Section 38 of the Small Claims Court Act as follows:“What the above means is basically that under Section 38 of the Small Claims Court Act, 2016, the High Court, while handling an appeal from the Small Claims Court is not permitted to substitute that Court's decision with its own conclusions based on its own analysis and appreciation of the facts [unless the findings are so perverse that no reasonable tribunal would have arrived at them."It was thus submitted that the trial Court correctly applied the principles of determination of liability and arrived at a correct decision and therefore the same were not perverse. 26.It was contended that the Appellant in his submissions to Court has not demonstrated that the trial Court misapplied any legal principles in reaching at his decision. That the legal principles applied by the Court are founded in the case of Stapley vs Gypsum Mines Ltd (2) (1953) A.C. 663 at Page 681. That those principles were applied correctly and determination made based on the balance of probability. That the standard of probability was defined in the case of Mburu & another v Nkoiboni & another (Civil Appeal E002 & E003 of 2023 (Consolidated)) KEHC 1062 (KLR) (5 February 2026) (Judgment). 27.Lastly, on whether there was any legal error, it was submitted that the Appellant has not demonstrated that the trial Court's decision is vitiated by any legal error. The law applicable is the Evidence Act particularly under Sections 107, 109 and 112 as read together with the Small Claims Act and Rules. Guidance on the applicability of these sections is elucidated in the case of Mumbi M'Nabea v David M. Wachira (2016) eKLR. 28.It was finally submitted that, a reading the Memorandum of Appeal as a whole, the appellant is inviting the Court to re-evaluate the facts of the case and draw its conclusion. It was urged that the court should resist the temptation to treat findings of fact as holdings of law, and uphold the trial Courts findings. In the case of Ogwari -vs- Hersi (Civil Appeal 223 of 2022) KEHC 20111 (KLR) (3 July 2023) (Judgment), the Court understood the implications of Section 32 of the Small Claims Court Act as hereunder:“Appraisal of the evidence or non-compliance of the Evidence Act is not a point of law since under section 32 of the Small Claims Court Act, the court is not bound by strict rules of evidence." 29.It was finally submitted that in as far as the Appellant has not demonstrated, how the adjudicator misdirected himself or misapplied the principles of law in arriving at his decision, the appeal must fail. It was urged that the appeal be dismissed with costs. 30.I have considered the record of appeal and the submissions tendered. The issue for determination is whether the appeal has merit. 31.The legal burden of proof was on the Respondent to prove her claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove her assertions pleaded in the Plaint. Section 107(1) of the Evidence Act, Cap 80 provides that:Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.However, the burden may shift to the Defendant to disprove the alleged claim. This is the evidential burden of proof, which is well captured under Sections 109 and 112 of the Evidence Act. See Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334.The two concepts are well illustrated by the Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR, that:“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” See Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR,The standard of proof is well captured in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, where the Court held that:Denning J. in Miller v 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 the tribunal can say, we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a 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 lose, because the requisite standard will not have been attained.”Kimaru J. (as he then was) in William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 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 than 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 opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.” 32.It is noted that the Appellant has contended that the accident out of which the Respondent sustained material damage was as a result of her own misfortune. It was further contended that there was no contact between the Respondent’s motor vehicle and that of the Appellant herein as confirmed from the evidence. That at page 103,104 and 105 of the Record of Appeal is the main testimony of CW1, the traffic Officer. The Respondent stated that there was no direct impact between motor vehicle KBV 237A which belonged to the Appellant and Motor vehicle KDD 613S which belonged to the Respondent. CW2 the Respondent also testified that there was no impact between motor vehicle KDD 613S and KBV 237A which was confirmed by the Appellant and the Appellant’s witness. From all the witnesses that testified, there was no impact between the Appellant’s motor vehicle KBV 237A and the Respondent’s motor vehicle KDD 613S. 33.It was pointed out by the Appellant that the impact of the motor vehicle KDD 613S had was with motor vehicle KAJ 665N wherein no evidence of ownership of the same was adduced before the court. That the Respondent’s testimony is corroborated at page 45 of the record of appeal which had her amended witness statement at paragraph 4 where she says,“on reaching Kambi Musa area at about 20:26hrs, there was an oncoming motor vehicle which blurred my vision and I suddenly came across a motor vehicle registration number KBV 237A and KAJ 665N which were unlawfully parked on the road….”That from the statement above, it was clear that the cause of the accident was the blurry vision caused by an oncoming vehicle which blurred her vision and suddenly rammed into motor vehicle KAJ 665N. It was contended that from the photos that were adduced by the Appellant, it supports the averments of all the witnesses that the impact of the accident was the Respondent’s motor vehicle KDD 613S knocking motor vehicle KAJ 665N from behind. That from the photos adduced, it was demonstrated that motor vehicle KBV 237A and KAJ 665N were off the road. 34.It was further contended that the Respondent (Claimant) was unable to demonstrate that motor vehicle KBV237A and KAJ 665N were on the road. In the case of George Kinuthia Ngure v Benson Mwangi Maina (2025), the High Court clarified that a police abstract is merely an administrative record that an accident occurred but it does not prove negligence or causation. Also, in Francisca Njeri Mwangi v James K. Mwangi (2009) it was held that a police abstract is not conclusive evidence of the facts or fault, but merely a record of the initial report.That the Appellant admitted being the owner of motor vehicle KBV 237A which was parked off the road but denied being the owner of motor vehicle KAJ 665N which was hit from behind by the motor vehicle KDD which belonged to the Respondent. 35.It was submitted that the trial Magistrate also erred in failing to analyze that the Respondent was blinded by full lights from an incoming vehicle which caused her to veer off the road and knock motor vehicle KAJ 665N which was off the road. That the trial magistrate failed to find that there was a contributing factor from a third party who caused her to be involved in an accident that caused damage to her motor vehicle. Further, that the trial Magistrate failed to analyze that the evidence of Pw1 who was crucial witness was full of inconsistences and gaps and that her evidence on a balance of probabilities could not have caused liability to be on the Appellant.36. It was submitted that the trial Magistrate erred in law and in fact in finding that the Appellant was liable for the accident upon which motor vehicle KDD was damaged. That the trial magistrate failed to analyze the testimony of the Respondent both through her witness testimony at page 45 of the record of appeal and the cross examination at 103 to 105 of the Record of Appeal. There was no analysis by the magistrate as the admission by the Respondent that her vision was blurred by an oncoming vehicle which had full lights which blurred her vision. This was not taken into consideration regarding the speed at which the Respondent was driving at the time. Indeed, the Respondent confirmed in her evidence that her vision was blurred by an oncoming vehicle which led her to knock motor vehicle KAJ 665N. All the witnesses are agreed that the Respondent’s car KDD 613S hit motor vehicle KAJ 665N from behind. Looking at the statement of claim by the Respondent, she specifically claimed that her vehicle hit Motor vehicle KBV 237A and which was also replicated on the police abstract. The evidence tendered by both sides confirmed that it was motor vehicle KAJ 665N which was hit and not KBV 237A. Hence, I find that the trial Magistrate erred in law and in fact in not finding that that there was no impact between motor vehicle KDD 613S and motor vehicle KBV237A. That at page 107 of the proceedings, CW2 the Respondent admitted that there was no impact between motor vehicle KBV and motor vehicle KDD. The Respondent also admitted knocking motor vehicle KAJ 665N Toyota Land cruiser. The Appellant denied being the driver or owner of motor vehicle KAJ 665N and thus put the Respondent to strict proof. However, it is noted that the Appellant himself during his testimony admitted on cross-examination at page 110 of the Record of Appeal stated;"I am saying what was there, KAJ was the land cruiser. I was the one driving it."Again, the testimony of the Police Officer recorded at page 104 of the Record of Appeal, line 15, the Investigating Officer stated;"KAJ 665N belongs to Brian and I don't have ownership documents and on Police abstract dated 28/12/2021 indicates Brian is the owner of the two motor vehicles". 37.It was further contended that the trial court did not analyze the evidence of the Appellant’s witness who was the only eye witness to the accident who testified in court. That at page 111 and 112 of the Record of Appeal while being cross examined, the Appellant’s witness categorically stated the events of the night and how the accident happened. 38.From the foregoing, it is clear that even though the Appellant denied being the owner and driver of the motor vehicle KAJ 665N, the evidence placed him at the accident scene in fact in finding that the Appellant was the driver of the motor vehicle KAJ 665N and hence there was no error on the part of the trial Magistrate to lay blame on the Appellant. In the case of Mumbi M’Nabea v David M. Wachira (2016) it was held that courts must assess oral and documentary evidence to decide which version of events is more likely to have happened. The Respondent was categorical in her evidence that what caused the accident was the blurry vision once there was an oncoming vehicle with full lights. In Githinji v Ngugi & 2 others (2025) the court set aside a 100% liability ruling because the plaintiff failed to establish "proof of fault." The court noted that the mere fact an accident happened is not adequate and that specific evidence of negligence must be adduced. Again, in Mwangangi v Gathogo (2025) the suit was dismissed because the plaintiff failed to prove beyond a balance of probability that the respondent was responsible. The court noted that even if a defendant does not oppose the production of documents, it does not mean they have admitted liability.Section 110 of the Law of Evidence Act deals with the aspect of proof of admissibility. That the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. I find that the Respondent proved her case on a balance of probability. However, the Respondent was expected to have been careful as she cruised the highway at the time. It is highly likely that she must have been at high speed and was unable to control her vehicle. The Respondent was aware that driving at night requires careful attention and reasonable speed to ensure that a motorist is able to control a vehicle without difficulty in the event of need. Further, in the absence of the alleged motorist who had blurred the Respondent’s vision, she should shoulder half of the liability. I find thathad the Respondent been keen, she would have seen the stalled lorry registration KBV 237A and Land Cruiser KAJ 655N. The traffic officer did not avail the sketch marks and maps which could have aided in finding out who was at greater fault. It is noted that the Appellant’s counsel in their submissions has proposed that liability be shouldered between the parties at50% to 50% respectively. . In Mwangi & another v Oginga (2025) it was held that in the absence of clear proof pinpointing who primarily caused the accident, both parties are equally responsible (50:50). 39.As the issue of the special damage claim is not contested, the same shall remain undisturbed. 40.In the result, it is my finding that the Appellant’s appeal partly succeeds. The same is allowed with an order that the trial court’s judgement dated 10/3/2025 on liability is hereby set aside and substituted with an order that the liability between the Appellant and Respondent is apportioned in the ratio of 50% to 50% respectively. The special damage claim shall therefore be subjected to this contribution. Each party to bear the costs of this appeal while the Respondent will have full costs in the lower court. DATED AND DELIVERED AT SIAYA, THIS 2ND DAY OF JULY 2026.D. KEMEIJUDGEIn the presence of:1. Ariho.........................................for Appellant2. Muma........................................for Respondent3. Maurine.....................................Court Assistant