Osore v Ongeche & another (Civil Appeal E012 of 2025) [2026] KEHC 8098 (KLR) (4 June 2026) (Judgment)

Osore v Ongeche & another (Civil Appeal E012 of 2025) [2026] KEHC 8098 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 8098 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E012 of 2025 AM Okutoyi, J June 4, 2026 Between Clinton Opore Osore Appellant and Edward Ajuoga Ongeche 1st Respondent Albert Chege 2nd Respondent (Being an appeal against the decree and Judgement delivered in the Principal Magistrate’s court in CMCC No. E636 of 2021 by Hon. P.K. Mutai delivered on 23rd of January 2025 in Kisii) Judgment Background of the appeal 1.This appeal emanates from a suit filed in the Chief Magistrate’s court regarding a road accident that occurred on 26th January 2021 involving a motor vehicle registration number KYM 407 driven by the respondent and a motor cycle registration number KMED 375 X in which the appellant was a pillion passenger. As a result of the accident, the appellant claims to have sustained injuries. 2.At the trial court, the appellant who was the plaintiff relied on three witnesses; PW1 Dr. Okere Okoth Silvanus who testified as to the injuries sustained by the appellant and produced medical reports and treatment notes; PW2 Inspector Betty Chepkosgei who affirmed the occurrence of the accident and produced police abstract as exhibit and PW3 the appellant who adopted their statement as evidence. 3.The respondent on their part had two witnesses; DW1 the respondent who adopted his statement as evidence and DW2 Inspector Betty Chepkosgei who testified and attributed the accident to the rider of the motor cycle and subsequently produced the police abstract as evidence. 4.The magistrate at the trial court delivered a judgement on 23rd January 2025 with the findings that the rider of the motor vehicle was to blame for the accident and that the appellant had sued the wrong party. As such the case was dismissed with costs. 5.Aggrieved with the decision of the Trial Magistrate, the appellant filed this instant appeal on the following grounds;i.That the learned trial Magistrate erred in law and fact by finding that the Appellant had not proved his case against the respondent on a balance of probability.ii.That the learned trial Magistrate erred in law and fact by considering and addressing irrelevant issues that were not canvassed before the trial Court.iii.That the learned trial Magistrate erred in law and fact by using the wrong principles in deciding on liability hence arriving at an erroneous decision on liability.iv.That the learned trial Magistrate erred in law and fact by not fully considering and/or appreciating all the facts before him.v.That the finding by the Magistrate on liability and quantum was characterized with misapplication of the law and wrong exercise of discretion. 6.The appellant with the reasons whereof prayed that the judgment of the trial court in respect of liability and quantum be set aside and/or varied it. The appellant supported his appeal with written submissions highlighting the err in law and fact in arriving at liability and citing authorities on quantum to support an award for Kshs. 480,000/=. 7.The respondent on their side opposed the appeal and in their written submissions focused on liability, cited various authorities and argued that the appellant had failed to prove liability on the part of the 2nd respondent. Analysis and Determination 8.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 9.I have carefully analyzed the appeal and trial record in its entirety and the main issue for the determination of this court that first needs to be addressed is whether the appellant proved that the respondent caused the accident and whether the trial court considered all facts and evidence before dismissing the case. 10.From the trial record, there is no contention that an accident did occur 26th January 2021 involving a motor vehicle KYM 407 driven by the respondent and a motor cycle KMED 375 X in which the appellant was a pillion passenger. There is also no contention that the appellant incurred injuries as a result of this accident. 11.Section 107(1) of the Evidence Act, Cap 80 provides that: 1.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. 2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 12.In this case, PW3 who was the appellant testified that he was knocked down by the vehicle KYM407 from the front and blames the respondent who was driving. The investigating officer appeared as both PW2 and DW2 and though she confirmed the accident did occur, stated that the matter was still under investigation. 13.The investigating officer produced two police abstracts dated 17th February 2021 and another dated 24th February 2021 in which the latter blames the rider of the motorcycle KMED 375 X who was not a party to the suit- even though a notice of third-party proceedings had been initiated by the defendant/respondent. 14.The appellant has raised concerns about these contradictions of the police abstract which I will address. It is settled in law that police abstract alone does not constitute conclusive proof of liability. See cases (ZOS & CAO (Suing as the Legal Representatives in the Estate of SAO (Deceased) v Amollo Stephen [2019] eKLR) , Kennedy Nyangoya v Bash Hauliers [2016], where the courts have observed that the contents of a police abstract are "merely evidence that a report of an accident was made. It is prima facie evidence of the occurrence of the accident and the particulars of those involved", rather than conclusive proof of who is to blame. 15.The existence of two different police abstracts issued by the same police station and produced by the same investigating officer without any plausible explanation, diminishes the probative value of either document. In this circumstance, then this court must go beyond the abstracts and examine other pieces of evidence on record. Unfortunately, there is not much to go with as the investigation of the accident is still pending. No sketches were provided to guide this court further in coming to a determination of liability as the investigations were indicated as incomplete. 16.The evidentiary threshold in this case is on a balance of probability as rightly highlighted by the Appellant who cited the case of Miller vs. Minister of Pensions (1947)2 ALL ER, 372“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 more probable than not,' the burden is discharged, but, if the probabilities are equal, it is not.” (emphasis added) 17.What this court is called to determine is who caused the accident and whether sufficient evidence was cast on a balance of probability as against the respondent. Upon re-evaluating the evidence on record, this court is unable to discern any evidence that attributes the accident to the respondent. 18.The evidence adduced at the trial court therefore remains speculative and the appellant has failed to establish negligence on the part of the respondent. The law requires a balance of probability and this has not been attained. 19.I therefore find no basis upon which to interfere with the judgment of the trial court Magistrate. 20.Although this court has found that the appellant failed to prove liability against the respondents on a balance of probability, it is prudent to consider the issue of quantum should the court of appeal come to a different conclusion on liability. 21.The injuries sustained by the appellant are as follows; Bruises on the right leg, Swelling on the right leg, Recurrent pains on the right leg, Bruised scars on the right leg. The injuries sustained were not in contention and therefore I will analyse other comparative awards for soft tissue injuries: 22.The appellant cited three authorities; Poa Link Services Co. Ltd & Another v. Sindani Boaz Bonzeno (2021) eKLR where the court awarded Kshs. 350,000/= for soft tissue injuries; Joseph Kimani Gathaga & Another v. Dickson Ndungu Njoroge (2019) eKLR where an award of Kshs 240,000/= was given for multiple soft tissue injuries and Joseph Wambura v. Joseph Mwangi Obai (2018) where the courts awarded kshs. 300,000/= for multiple soft tissue injuries. 23.In the case of National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’ Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR) the courts observed that the range for non-permanent soft tissue injuries is between Kshs. 250,000/= to Kshs. 300,000/=. 24.Had the appeal succeeded on liability, then I would have awarded Kshs 250,000/= for general damages. Disposition 25.The appeal lacks merit and is hereby dismissed in its entirety with costs to the respondent.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026A. M. OKUTOYIJUDGEIn the presence of :Mr. Orina for the appellantN/A -respondentZainab Ghana-court assistant