https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12004

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO. E024 OF 2025** **ESAU OTENYO SHISOKA (Suing as the Administrator of the Estate of BRIAN MUKABANA OTENYO (DECEASED))………………………………….APPELLANT** **VERSUS** **WYCLIFFE KANGU MAHERO………………………………………………RESPONDENT** **JUDGMENT** **Introduction** 1. This is a first appeal arising from the judgment of the Chief Magistrate’s Court at Kakamega in CMCC No. E317 of 2021 delivered on 26th February 2025. The learned trial magistrate dismissed the appellant’s suit after finding that the appellant had failed to prove negligence against the respondent on a balance of probabilities. 2. Being dissatisfied with that decision, the appellant lodged the present appeal contending that the trial magistrate misapprehended the evidence and wrongly held the deceased wholly liable for the accident. 3. This being a first appeal, this court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 4. The principles governing a first appeal were settled in **Selle v Associated Motor Boat Co. Ltd [1968] EA 123**, where the Court stated that an appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. 5. Similarly, in **Kiruga v Kiruga & Another [1988] KLR 348**, the Court of Appeal held that a first appellate court has jurisdiction to review the evidence in order to determine whether the conclusions reached by the trial court should stand. 6. However, an appellate court ought not interfere with findings of fact unless they are based on no evidence, are founded on a misapprehension of the evidence or the trial court acted on wrong principles. This principle was reiterated in **Jabane v Olenja [1986] KLR 661 and Ephantus Mwangi v Duncan Mwangi Wambugu [1982-88] 1 KAR 278.** **ISSUES FOR DETERMINATION** 1. The appeal raises two issues**:** 2. Whether the learned trial magistrate erred in finding that negligence against the respondent had not been proved. 3. Whether this Court should interfere with the judgment of the trial court. **ANALYSIS AND DETERMINATION** 1. **Whether the learned trial magistrate erred in finding that negligence against the respondent had not been proved** 2. The accident occurred on 20th March 2021 along the Kakamega-Mumias Road. The appellant’s case was founded principally upon the testimony of PW3, who claimed to have witnessed the accident. According to him, the respondent overtook the motorcycle before immediately turning left onto a feeder road without indicating, thereby obstructing the motorcycle. If believed, that evidence would undoubtedly establish negligence. However, the trial court rejected PW3’s testimony after finding it internally inconsistent. This Court has independently reconsidered the evidence. 3. In his witness statement, PW3 stated that the deceased was the rider of the motorcycle. During cross-examination, however, he stated that the deceased was not the rider but the pillion passenger. That contradiction is not a minor discrepancy. It goes to the very identity of the deceased and the circumstances under which the accident occurred. 4. PW3 also stated in his witness statement that the rider rammed into the left side of the respondent’s vehicle. Yet during cross-examination he changed his account by stating that the Probox struck the motorcycle from the front and later denied that the motorcycle rammed into the vehicle. These were mutually destructive versions. 5. The Court of Appeal in ***Maina v Thuo [2023] KECA*** observed that whether discrepancies render evidence unreliable depends on the nature and extent of the contradictions. 6. Likewise, in ***Richard Munene v Republic [2018] eKLR***, although in a criminal context, the Court observed that material contradictions and inconsistencies render a witness unreliable. 7. This Court agrees with the learned magistrate that PW3’s evidence could not safely be relied upon to establish negligence. 8. The respondent’s evidence was that he had slowed down and indicated before turning left when he heard a loud bang at the rear of his vehicle.His evidence was supported by the motor vehicle inspection report.The inspection report showed damage to the rear bumper and rear section of motor vehicle KCE 953T. 9. There was no damage to the front or left side consistent with PW3’s testimony that the respondent’s vehicle hit the motorcycle from the front or side. Physical evidence often provides the most objective account of how an accident occurred. 10. In this case, the inspection report corroborates the respondent’s testimony that the motorcycle collided with the rear of the Probox. 11. The law imposes upon every driver the duty to maintain a safe distance from the vehicle ahead. Where a rear-end collision occurs, the driver who collides with the vehicle ahead is generally presumed negligent unless evidence rebuts that presumption. 12. In **Orioki v Kevian Kenya Ltd [2025] KECA 780 (KLR)**, the Court of Appeal reaffirmed that a driver who hits another vehicle from behind bears the burden of demonstrating that the collision was not occasioned by his negligence. 13. Similarly, in **Vehicle & Equipment Leasing Ltd v Ibrahim Otieno [2021] KEHC 6223 (KLR)**, the High Court held that a motorist who rams another vehicle from behind is prima facie negligent for failure to maintain a safe distance. 14. The same principle was applied in **Multiple Hauliers (EA) Ltd v Justus Mutua Malundu & 2 Others [2017] eKLR**, where the Court held that there exists a presumption that one who collides with another vehicle from behind is negligent. 15. The inspection report in this appeal demonstrates that the impact occurred at the rear of the respondent’s vehicle. No credible evidence was produced to rebut the presumption arising from that fact. 16. The appellant submitted that because the respondent admitted concentrating on oncoming traffic before turning left, negligence had been established. This Court respectfully disagrees. Sections 107 and 108 of the Evidence Act place the burden upon the party asserting negligence. 17. The Court of Appeal in **Margaret Wanjiru Ndirangu & 4 Others v Attorney General [2020] eKLR**reiterated that the legal burden remains throughout with the plaintiff. 18. Likewise, in***M’Iruanji Muchai v Broadways Bakery Ltd & Another [1996] eKLR****,* the Court held that negligence must be proved and there is no liability without fault. 19. The respondent was under no obligation to prove that he was not negligent until the appellant first established a prima facie case. 20. In the present appeal, the appellant failed to discharge that burden. 21. Having independently reviewed the evidence, this Court finds; * That the learned trial magistrate properly appreciated the evidence before her. * The inconsistencies in PW3’s testimony were material. * The inspection report supported the respondent’s version. * The respondent’s evidence remained consistent during examination-in-chief and cross-examination. 1. **Whether this Court should interfere with the judgment of the trial court.** 2. There is therefore no basis upon which this Court can interfere with the trial court’s findings of fact. 3. As was stated in **Simon Taveta v Mercy Mutitu Njeru [2014] KECA**, an appellate court should not lightly interfere with findings of fact that are supported by evidence. 4. The learned trial magistrate assessed damages that would have been awarded had liability been established. Since liability was not proved, those assessments remain academic. There is accordingly no necessity to consider the proposed awards. 5. The appellant failed to establish that the learned trial magistrate misdirected herself either on the facts or the law. The finding that negligence was not proved on a balance of probabilities was supported by both the oral and documentary evidence. 6. Accordingly, this appeal lacks merit. 7. It is hereby ordered that: 8. The appeal is dismissed in its entirety. 9. The judgment of the Chief Magistrate delivered on 26th February 2025 in Kakamega CMCC No. E317 of 2021 is hereby upheld. 10. The appellant shall bear the costs of this appeal. 11. Right of Appeal 30 days explained. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 28TH DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** CA: Zilda/Velma Ms. Khisa for Respondent present online. Parties absent.