https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10738

Njoroge v Njoroge (Suing as the Legal Representative of the Estate of John Njoroge Meru – Deceased) (Civil Appeal E028 of 2023) [2026] KEHC 10738 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 10738 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E028 of 2023 EM Muriithi, J May 14, 2026 Between David Mwangi Njoroge Appellant and Lucy Waithera Njoroge (Suing as the Legal Representative of the Estate of John Njoroge Meru – Deceased) Respondent (Being an Appeal from the Judgment of Honorable D.M Ireri (P.M) delivered on 15/3/2023 at Baricho SPMCC No. 102 of 2018) Judgment 1.By a plaint dated 15/6/2018, the Respondent sued the Appellant and another, seeking damages under the Law Reform Act and Fatal Accidents Act, special damages of Ksh. 550 and costs of the suit plus interest. The Respondent pleaded that on 12/9/2016, the deceased was lawfully driving his Skygo Tuktuk registration No. KTWB 229 D along Sagana – Makutano Road at Tana Bridge Area, when the Appellant and/or his employee, servant, agent or authorized driver so carelessly and negligently drove, managed and/or controlled Motor Vehicle Registration No. KBJ 321 H Mitsubishi Canter that it knocked down the deceased, thereby fatally injuring him. At the time of his death, the deceased was aged 52 years old, married, self employed and enjoying an energetic and healthy life. 2.The Appellant denied the claim vide his amended defence dated 22/3/2019 and prayed for the Respondent’s suit to be dismissed with costs. 3.Upon full hearing, the trial court apportioned liability at 50% and awarded general damages for pain and suffering of Ksh.50,000, Ksh.100,000 for Loss of Expectation of Life, Ksh. 1,200,000 for Loss of Dependency and special damages of Ksh.50,000 together with costs and interest. The appeal 4.On appeal, the Appellant vide his memorandum of appeal on 29/3/2023 set out 4 grounds as follows:1.The Learned Magistrate erred in law by finding the Appellant 50% liable in negligence in disregard of the sum of evidence adduced during trial that evidently blamed Deceased for the accident.2.The Learned Magistrate erred in law in failing to consider the submissions of the Counsel for the Appellant, the evidence and the witness testimonies presented at trial and find that the Deceased herein was solely liable for the accident.3.The Learned Magistrate erred in law and fact in failing to consider the written submissions of the Appellant on record and the authorities annexed therein in support of the Appellant’s case.4.That the judgment of the Learned trial Magistrate is against the law and weight of the evidence on record. Duty of the Court 5.This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). Oral Evidence 6.PW1 Lucy Waithera Njoroge, adopted her stated dated 15/6/2018 as her evidence in chief and produced the list of documents filed therewith as exhibits. She went on to state that, “I hail from Naivasha. I am a casual labourer. My ID Number is 11292422. The deceased was my husband. He was 52 years old. He was unemployed. We had 8 children. My prayer is to have damages in compensation for his death. I incurred burial expenses in the estimate of Ksh. 100,000 and above. I could not retrieve all receipts.” 7.On cross examination, she stated that, “I did not witness the accident. The deceased was riding a Tuk tuk. He had a licence. I did not avail the same in evidence. The Mitsubishi Canter KBJ 321 H belongs to David Njoroge. I have not availed a copy of records. I have 8 children. I have availed their respective birth certificate. Same for Jusege Meri the eldest.” 8.In re-examination, she stated that, “The police abstract (MFI 5) indicates that David Mwangi was the owner of KBJ 321 H Canter and that KCA 441 B belonged to Lily Mukami Karimi. I provided the chiefs letter EXH 8 which established that I am the deceased wife. All my children were the deceased.” 9.PW2 CPL Evelyne Muthengi, attached to Sagana Police Traffic Base, produced the police abstract dated 28/11/2016 as an exhibit. She testified that, “The accident involved 2 motor vehicles and a Tuk tuk. Deceased was the driver of Tuk tuk KTWD 229 D make Skygo and motor vehicle KBJ 321 H Mitsubishi Canter and KCA 441 B Toyota Matatu. I did not investigate the accident. The Investigating Officer Pc George Andonga was transferred to Nyandarua County. The sketch plans of the accident scene were never traced. I cannot speak to who was to blame for the accident as the case in PW1. I was paid Ksh. 7,000/= for court attendance. I wish to seek the summons to the Base Commander. The copy is at the officer.” 10.On cross examination, she stated that, “The investigation were pending at the time of issuance of the abstract. I don't have the police file, I cannot confirm where the part impact was or who was to blame for the accident. I cannot tell whether the Tuk tuk was insured. I cannot also tell whether its driver had a licence. The witnesses were the driver of the motor vehicles. It is procedural further to record their statements. I am not aware of as other abstracts issued relate to the same accident. The abstract dated 10/09/2016 was issued to the owner of KBJ the matter was referred to the insurance blaming KTW B 229 A the Tuk tuk. The abstract was issued before the one I have relied on the accident occurred on 12/09/2016. Relative of deceased came after froze of the deceased on 28/11/2016. The information on the abstract is extracted for the 038/12/9/2016. It should have some information. The initial abstract is for material damage. This was not indicated in the abstract. The conflictive information can be explained by the officer who issued the abstract. I was not Investigating Officer. I did not visit the scene. I do not have the police file. This matter is pending investigation according to the abstract. I cannot speak to who was to blame for the accident.” 11.In re-examination, she stated that, “The Base Commander issued the abstract dated 15/09/2016. It bears the signature of the same Investigating Officer. I cannot speak to the confliction abstracts. I cannot tell which among the three vehicles is to blame for the accident.” 12.DW1 Pc Daisy Cheronoh from Sagana Police Station, Traffic Base, testified that, “I am familiar with the case. The date of the accident was on 12/09/2016 along Sagana-Nairobi road near Tana bridge involving motor vehicle KBJ 321 H Mitsubishi canter and KCA 441 B Toyota matatu. The other one was a Tri-cycle KTWB 229 D. The matatu was heading towards Nairobi while the Tuk tuk was ahead of the matatu. At the scene of the accident the Tuk tuk lost control and collided with the lorry which was heading towards Makutano direction. Due to the impact, the Tuk tuk was thrown into the matatu. The Tuk tuk caught fire and was burnt down. The Tuktuk rider was injured and taken to the hospital. The Tuk tuk rider was to blame for the accident. The driver of the Tuk tuk passed way. I wish to produce the police abstract as an exhibit.” 13.On cross examination, she stated that, “I have the OB with me. I only have one police abstract for the material damage. I do not have the police file. I have the police abstract of dated 19/9/2016 for material damage claim. The case was referred to the insurance. I am not the Investigating Officer. I do not have the sketch plans since I do not have the police file. The OB and police abstract dated 19/9/2016 blames the Tuk tuk rider. I am not the one who issued the police abstract dated 28/11/2016. For now I cannot tell which side is to blame. As at 28/11/2016 the case was pending under investigating. I know madam Muthengi. I wish to agree with the evidence of madam Muthengi. The owner of the lorry is David Mwangi Njoroge while the owner of the matatu is Lily Mukami Karimi. I cannot see the name of drivers from the OB. The OB does not indicate whether the lorry of matatu took any evasive acts.” 14.In re-examination, she stated that, “According to the OB the Tuk tuk caused the accident. I do not have the police abstract dated 28/11/2016 and I am not aware of it. The OB explains the circumstances of the accident.” 15.When questioned by the court, she stated that, “According to the police abstract dated 19/9/2016 the drivers shown therein does not shoe who was driving which vehicle but the OB shows that James Kamau Wachira was the driver of motor vehicle KBJ 321 H while Ephantus K. Wachira was the driver of the matatu.” 16.DW2 Ephantus Kanyoro Wachira from Karatina, adopted his statement dated 20/8/2018 as his evidence in chief. He told the court that, “I am a driver. I am here over an accident. I was heading to Nairobi. At Tana River bridge, the Tuk tuk ahead of me lost control and went to the lane of the lorry and was hit and the tuk tuk thrown to my vehicle. No one was injured in my vehicle. I was not blamed. I was not charged. I blame the driver of Tuk tuk for the accident.” 17.On cross examination, he stated that, “I was driving the matatu. I have my ID card (seen though details not clear). The tuk tuk crossed the road and was hit and thrown to my vehicle. The vehicle belongs to 2NK Sacco and our details are with the Sacco Management. I do not have the employment documents for now. Lily Mukami Karimi is the owner of the matatu and my employer. I do not have the police abstract for now. The handwriting in my statement is not mine. I do not have the statement with me. I cannot remember very dwell whether I signed the statement. I was present at Direct Line Assurance Officer Thika when my statement was taken. There is a slope towards the bridge. Myself and Tuk tuk were going down the slope. In a slope a vehicle speeds. I had stopped when Tuk tuk was hit. I tried to stop besides the road next to the bridge guards. The lorry tried to avoid the Tuk tuk and it entered a ditch. I could not go far from the road due to bridge guards otherwise I would have entered into the river. The vehicle behind is supposed to keep safe distance from the other vehicle. If a driver maintains safe distance then he has time to brake and avoid a collision with the other vehicle.” 18.In re-examination, he stated that, “I had driven the matatu for 6 months. I saw the Tuk tuk cross the road. I tried to brake and stopped. I was hit while still. I gave my statement at Direct Line Assurance. I think I signed the statement. We do not receive driving contracts from the Sacco. I was employed by 2nd defendant.” Submissions 19.The Appellant cites Selle v Associated Motor Boat Co. Ltd [1968] EA, on the duty of the first appellate court. He urges that evidence led by the Respondent and her witnesses was ultimately flawed and inconsistent to what actually transpired, and cites Mwaura Mwalo v Akamba Public Road Services Ltd NVI HCCC NO. 5 of 1989 (Ur) , Mount Elgon Hardware V United Millers C.A No. 19 of 1996 (Ur), Jamal Ramadhan Yusuf & another v Ruth Achieng Onditi & Another [2010] eKLR and Tread setters Tires Ltd v John Wekesa Wepukhulu [2010] eKLR. He urges the court to find that he was not negligent in any way and prays for the appeal to be allowed with costs. 20.The Respondent faults the Appellant for failing to avail their driver to shed more light on the circumstances surrounding the accident, and prays for the impugned decision on liability to be upheld. She lauds the trial court for disregarding the Appellant’s Police Abstract which lay blame on the deceased, and cites Stephen Kinini Wang’ondu v The Ark Limited [2016] eKLR, Eliud Papoi Papa v Jigneshkumar Rameshbai Patel & another [2017] KEHC 4622 (KLR) and Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR). Analysis and determination 21.From the grounds of appeal as framed, the sole issue for determination is whether the apportionment of liability was supported by the evidence on record. 22.PW3 and DW1, who were not the investigating officers produced 2 conflicting police abstracts. The evidence on causation of the accident was led by DW2, the eye witness herein and the driver of the matatu, when testified that, “I was heading to Nairobi. At Tana River bridge, the Tuk tuk ahead of me lost control and went to the lane of the lorry and was hit and the tuk tuk thrown to my vehicle.” On cross examination, he stated that, “The tuk tuk crossed the road and was hit and thrown to my vehicle. There is a slope towards the bridge. Myself and Tuk tuk were going down the slope. In a slope a vehicle speeds. The lorry tried to avoid the Tuk tuk and it entered a ditch. The vehicle behind is supposed to keep safe distance from the other vehicle. If a driver maintains safe distance then he has time to brake and avoid a collision with the other vehicle.” 23.It is axiomatic from the eye witness’ lens that had the Appellant kept a safe distance, he would have been able to brake and/or swerve in good time to avoid the accident, and to that extent, he was liable. On his part, the deceased was equally negligent for driving the Tuktuk carelessly without due care and attention for other road users. 24.In Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR), cited by the Respondent, the Court of Appeal espoused that;“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame…The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.” 25.Comparatively in Abbay Abubakar Haji & another v Marair Freight Agencies Ltd [1984] KECA 57 (KLR), the Court of Appeal held that;“Where it is proved by evidence that both parties to a motor accident are to blame and there is no means of making a reasonable distribution, the blame can be apportioned equally on each. Baker v Market Hardborough Industrial Co-operative Society Limited [1953] WLR p 1472.” 26.This court finds that the trial court’s apportionment of liability at the ratio of 50:50 was supported by the evidence on record, and therefore, there is no basis for interference. 27.The trial court is faulted for failing to consider the Appellant’s submissions and authorities. That objection is misconceived because submissions cannot take the place of pleadings or evidence, and their consideration and/or lack thereof cannot in itself be a basis to overturn a trial court’s decision. Orders 28.Accordingly, for the reasons set out above, the court finds the Appellant’s appeal is without merit and it is dismissed. 29.There shall be no orders as to costs. Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Amwayi for the Appellant.Mr. Terer for the Respondent.