https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10797

Kimani v Macharia (Suing as the legal representative of the Estate of Daniel Njuguna Kimani – Deceased) (Civil Appeal E239 of 2025) [2026] KEHC 10797 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10797 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E239 of 2025 BW Murunga, J July 16, 2026 Between Ezekiel Kinyanjui Kimani Appellant and Sarah Waruguru Macharia (suing as the legal representative of the estate of Daniel Njuguna Kimani – Deceased) Respondent (Being an appeal from the judgment and decree of Hon. J.N. Wambilyanga, Senior Principal Magistrate, delivered on 10th December 2024 in Thika Chief Magistrate's Court Civil Suit No. E696 of 2022) Judgment A. Introduction 1.This is a first appeal against the judgment and decree of the Senior Principal Magistrate, Thika (Hon. J.N. Wambilyanga), delivered on 10th December 2024 in Thika Chief Magistrate’s Court Civil Suit No. E696 of 2022, in which the trial court apportioned liability for a fatal road traffic accident at 80% against the Appellant, Ezekiel Kinyanjui Kimani, and 20% against the deceased, Daniel Njuguna Kimani, and entered judgment for the Respondent, the deceased’s widow suing as legal representative of his estate, in the sum of Kshs.1,376,712/=, together with the costs of the suit and interest at court rates. 2.The Appellant’s counterclaim for his own injuries and vehicle damage was dismissed in its entirety. 3.Aggrieved, the Appellant filed a Memorandum of Appeal dated 10th September 2025 setting out six grounds which, for convenience, may be condensed into a single, central complaint: that the learned trial magistrate erred in disregarding the weight of the Appellant’s evidence, in wrongly apportioning liability at 80:20 against him, and, in the alternative, in awarding excessive damages. B. Background 4.The Respondent’s case, as pleaded, was that on 30th January 2022, along the Thika–Garissa Road near the Shell Petrol Station, the deceased was driving motor vehicle registration number KAV 153J when the Appellant, driving or controlling motor vehicle registration number KCA 425U, so negligently drove the said vehicle that it collided head-on with the deceased’s vehicle. 5.The deceased died on the spot. The Respondent sought general damages under the Law Reform Act and the Fatal Accidents Act, special damages of Kshs.602,700/=, costs and interest. 6.The Appellant filed a Statement of Defence and Counterclaim dated 27th January 2023 denying negligence and averring that the accident was occasioned by the sole, alternatively contributory, negligence of the deceased, who is said to have failed to keep to his lane and crossed into the path of the Appellant’s vehicle. 7.The Appellant counterclaimed for general and special damages for the injuries he sustained, a fractured right hip joint, a dislocated hip and a dislocated knee cap, and for damage to his motor vehicle. The Respondent filed a Reply to Defence and Defence to Counterclaim dated 7th September 2023, joining issue and reiterating that the Appellant’s vehicle was to blame. 8.At the trial, the Respondent called two witnesses. PW1, the Respondent herself, did not witness the accident; she testified to her marriage to the deceased, their four children, his role as breadwinner, and his death at the scene. PW2, PC Simon Mwai, produced a police abstract dated 16th March 2022 naming the Appellant’s motor vehicle as the one to blame. On cross-examination, PW2 conceded that he was not the investigating officer, that he did not have the police file, and that he had no Occurrence Book extract with him. 9.The Appellant called four witnesses. DW1, the Appellant himself, testified that the deceased’s vehicle veered off its lane and struck his vehicle on the driver’s side, and that he sustained a fractured hip joint, a dislocated hip and a dislocated knee cap. DW2, Alex Muteti, a motor vehicle assessor, testified as to the cost of repairing the Appellant’s vehicle and produced an assessment report indicating that the vehicle had sustained a right-side frontal impact. DW3, Moses Muchui Njagi of Bull’s Eye Insurance Investigators, produced an investigation report and a police abstract, which he stated was dated 15th March 2022, indicating that the deceased’s vehicle had failed to keep to its lane; he conceded on cross-examination that he was unaware that two police abstracts existed in respect of the same accident. DW4, PC Juma Iman Wako, produced a further abstract dated 8th March 2022, which he said blamed the deceased’s vehicle; he too conceded that he was not the investigating officer and had no investigation file. 10.In her judgment, the learned trial magistrate found that an accident had occurred and that the deceased had died on the spot. She observed that the two abstracts, though issued by the same police station, reached opposite conclusions: the abstract relied on by the Appellant, dated 8th March 2022, recorded in its designated field for the “result of investigations or prosecutions” that the matter remained pending, with a marginal notation blaming the deceased’s vehicle appearing not in that field but at the top of the document; the abstract relied on by the Respondent, dated 16th March 2022 and therefore the later of the two, recorded within the same field, without qualification, that the Appellant’s vehicle was to blame. 11.Reasoning that no sketch plan had been produced by either side to independently verify the point of impact, the learned magistrate apportioned liability at 80% against the Appellant and 20% against the deceased. On quantum, she awarded Kshs.50,000/= for pain and suffering, Kshs.100,000/= for loss of expectation of life, Kshs.1,000,000/= for loss of dependency (applying the global-sum approach in the absence of proof of the deceased’s earnings), and Kshs.570,890/= as proved special damages, totalling Kshs.1,720,890/=, less the 20% contribution, resulting in Kshs.1,376,712/=. The counterclaim was dismissed in its entirety. 12.The Appellant’s Memorandum of Appeal dated 10th September 2025 sets out six grounds, namely that the learned trial magistrate:a.misdirected herself and departed from applicable judicial precedent;b.erred in failing to recognise that a police abstract cannot, by itself, add credence to the evidence of a witness;c.erred in finding that the Respondent had proved her case to the required standard;d.erred in apportioning liability at 80:20 despite the weight of the Appellant’s evidence;e.erred in failing to critically analyse the evidence, thereby arriving at a wrong finding on both liability and quantum; andf.erred in awarding an inordinately high sum in general damages. C. The Appellant’s Case 13.Learned counsel for the Appellant, relying on Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, urged that this being a first appeal by way of retrial, the Court is duty-bound to reconsider and re-evaluate the evidence and reach its own conclusions. 14.Counsel submitted that the Respondent’s entire case on liability rested on a single police abstract produced by an officer who was not the investigating officer, held no police file and possessed no Occurrence Book extract, whereas the Appellant’s case was corroborated by his own eye-witness account. 15.Reliance was placed on David Kajogi M’mugaa v Francis Muthomi [2012] eKLR and Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & Another [2022] eKLR for the proposition that a police abstract, without more, is not proof of negligence, and on sections 107 to 109 of the Evidence Act, Cap 80, for the incidence of the legal and evidential burden of proof. 16.Counsel further relied on Miller v Minister of Pensions [1947] 2 All ER 372 and Pamela Aboo v Assets Recovery Agency & Another, Nairobi Civil Appeal No. 452 of 2018, on the nature of the burden of proof on a balance of probabilities, and urged that the Respondent, having failed to discharge that burden, ought not to have succeeded at all. 17.It was submitted that, this being so, the award of quantum could equally not stand, and that the appeal ought to be allowed with costs, the judgment set aside, and the counterclaim allowed. D. The Respondent's Case 18.Learned counsel for the Respondent opposed the appeal in its entirety, submitting that the record disclosed material inconsistencies in the Appellant’s own case which the trial court was entitled to weigh against him. 19.It was submitted that the abstract dated 8th March 2022 relied on by the Appellant did not, in the field designated for that purpose, record any finding of fault against the deceased, but rather recorded the matter as pending investigation, and that the notation blaming the deceased appeared only as a later marginal addition; whereas the abstract dated 16th March 2022, relied upon by the Respondent and issued by the same investigating officer, expressly and formally recorded the Appellant’s vehicle as the one to blame. 20.Counsel further pointed to the inconsistency between the Occurrence Book entry numbers attributed to DW3 and DW4 in the course of the trial and on appeal, and submitted that this inconsistency further undermined the reliability of the Appellant’s case. It was submitted that the trial magistrate correctly and reasonably inferred, on the totality of the material before her, that the Respondent’s abstract reflected the concluded state of the investigation, and that the appeal, having failed to demonstrate any misdirection warranting interference, ought to be dismissed with costs. E. Issues For Determination 21.Having considered the record of appeal, the rival submissions and the authorities cited, I am satisfied that two issues fall for determination:a.Whether the trial court erred in its finding on liability and in the apportionment of 80:20 against the Appellant; andb.Whether the quantum of damages awarded ought to be disturbed. F. Analysis And Determination Issue (a): Liability 22.I begin with the standard which governs my task. Being a first appeal, it is by way of retrial. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the then Court of Appeal for Eastern Africa held that:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 23.I have therefore approached the record not as a reviewing court searching only for manifest error, but as a court required to form its own independent view of where the truth as between these two competing accounts most probably lies, tempered always by the recognition that the trial court had the singular advantage of watching each witness give evidence. 24.The starting point in every claim founded on negligence is that he who alleges must prove. Sections 107, 108 and 109 of the Evidence Act, Cap 80, place the burden on the party who asserts the existence of a fact, and provide that the burden lies on the person who would fail if no evidence at all were given on either side. 25.The Court of Appeal restated this elementary proposition in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR, holding, in substance, that whoever asserts must prove, the applicable standard, being civil, being proof on a balance of probabilities, no more, no less. As Denning J. put it in the frequently cited passage from Miller v Minister of Pensions [1947] 2 All ER 372:“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.” 26.It is against this standard that the rival submissions must be tested. Counsel for the Appellant mounted what is, at first blush, a formidable argument: that the Respondent’s entire case on liability rested on nothing more than a police abstract produced by PW2, an officer who candidly admitted that he was neither the investigating officer, nor the custodian of the police file, nor in possession of the Occurrence Book extract. Courts in this jurisdiction have repeatedly held that such a document, without more, does not prove fault. In Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR, it was held that:“A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.” 27.And in Kennedy Nyangoya v Bash Hauliers [2016] eKLR, this Court went further, holding that:“Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it.” 28.The Court of Appeal made the same point in relation to the opinion of an investigating officer in David Kajogi M’mugaa v Francis Muthomi [2012] eKLR, where it was observed that:“The evidence of an investigating officer alone cannot be conclusive as to who is to blame for the accident nor is the opinion of such a witness binding on the court because the court can either accept or reject it for various reasons.” 29.If this were the whole of the matter, the Appellant’s argument would carry the day, for the Respondent’s proof of liability, standing alone, suffers from precisely the infirmity these authorities condemn: no sketch plan was produced, no independent eyewitness to the collision was called, and the officer whose name appears on the abstract relied upon was not called to testify and be cross-examined on how her conclusion was reached. On this analysis, the Respondent’s case would appear no better founded than that rejected in Kennedy Nyangoya. 30.It is precisely here, however, that the difficulty in the Appellant’s own case surfaces, for the very principle he invokes to discredit the Respondent’s abstract applies with equal, if not greater, force against his own. The Appellant did not call the investigating officer either. DW3 and DW4, no less than PW2, each claimed to be the investigating officer and each lacked the police file. 31.If a police abstract naming a party as blameworthy is not, by itself, proof of that party’s negligence, then the abstract relied upon by the Appellant, dated 8th March 2022, is equally incapable, standing alone, of proving that the deceased was to blame. The rule cuts both ways; it cannot be invoked to demolish the Respondent’s case while being quietly set aside to prop up the Appellant’s own. 32.The question, then, is not resolved merely by asking which abstract exists, but by weighing what each document, on its face, actually shows, and by asking whether either party has anything more to offer. On this closer examination, three matters persuade me that the balance, though a narrow one, tilts against the Appellant. 33.First, the two abstracts are not, on examination, equally probative documents, notwithstanding that neither was proved through the mouth of the officer who compiled it. The abstract relied upon by the Appellant, dated the 8th of March 2022, in the very field designed to record “the result of investigations or prosecutions (if known),” recorded that the matter remained pending. The notation blaming the deceased’s vehicle appears not within that field but as a marginal addition at the top of the document, dated the 15th of March 2022, a week after the abstract was first issued, and a single day before the Respondent’s abstract was formally completed. 34.The Respondent’s abstract, dated the 16th of March 2022 and thus the later in time of the two, records within the very same designated field, without qualification, that the Appellant’s motor vehicle was to blame. Where an investigation is shown, by the defence’s own document, to have been “pending” as at the 8th of March, and a properly completed abstract naming the Appellant is issued eight days later, the more probable inference, and I so find, as did the trial court before me, is that the investigation had by then run its course and that its conclusion was recorded, in the ordinary way, in the fresh document rather than through a belated marginal insertion on the stale one. 35.Second, the Appellant’s own account of the very documentary foundation of his defence has not remained constant. Before the trial court, it was the Appellant’s own case that DW3’s investigation report and DW4’s abstract were both traceable to the same Occurrence Book entry, No. 6/30/1/2022. Before this Court, however, the Appellant’s own written submissions attribute DW4’s abstract to an altogether different entry, No. 9/30/6/2022. No explanation for this shift appears anywhere on the record. 36.A party is, of course, entitled to correct an error; but where the very reference number said to anchor an officer’s evidence to the police file changes between the trial and the appeal without explanation, the Court is entitled to receive the underlying document with some caution, rather than as the unshakeable foundation from which to fault the trial court's assessment of the Respondent's case. 37.Third, I have not overlooked that the Appellant, in DW1, gave the only truly eyewitness account tendered before the trial court, since neither PW1 nor PW2 was present when the collision occurred. That evidence is entitled to be weighed, and weighed I have. But it remains the account of a party as to his own conduct in an accident for which he stands to be found liable, and this Court must, without impugning his honesty, recognise that an interested account of this kind ordinarily calls for some independent corroboration before it can be preferred over a competing documentary record. 38.The corroboration offered, DW2’s finding that the Appellant’s vehicle sustained a “right-side frontal impact” establishes only where the vehicle was struck, not which of the two vehicles had departed from its lane; that fact is, without more, as consistent with the Appellant having drifted to his right as with the deceased having crossed the centre line. In the absence of a sketch plan showing skid marks, debris, or the resting position of either vehicle relative to the carriageway, a deficiency both sides share, and one this Court cannot cure on appeal that evidence does not carry the Appellant’s case beyond the point reached by the documents already discussed. 39.It follows that neither party proved their case with the clarity that a sketch plan, a disinterested eyewitness, or the investigating officer’s own testimony would have supplied. That, precisely, is the condition in which the courts of this country have consistently apportioned, rather than wholly allocated, liability. In Hussein Omar Farah v Lento Agencies [2006] eKLR, the Court of Appeal stated:“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...to blame.” 40.A similar approach was taken in Lakhamshi v Attorney General [1971] EA 118, where it was held that where the evidence is conflicting and fault cannot be precisely determined, both parties may be held liable in proportions reflecting the court's assessment of their respective culpability. 41.On the whole, I am satisfied that the trial court’s assessment, that the Appellant bore the greater share of responsibility for the accident, tempered by a measure of doubt reflected in the 20% attributed to the deceased on account of the absence of a sketch plan, was a conclusion reasonably open on the evidence, and one I independently reach on my own re-evaluation of the record. 42.I therefore do not find that the learned magistrate failed to take account of any relevant circumstance, or that she reached her conclusion upon a misapprehension of the evidence, of the kind that would entitle this Court to interfere under the principle in Selle. Nor has the Respondent cross-appealed seeking a higher proportion of liability against the Appellant, and it is not open to this Court, absent such a cross-appeal, to increase his burden beyond what the trial court found. Grounds 1, 2, 3, 4 and 5 of the Memorandum of Appeal accordingly fail. Issue (b): Quantum 43.Ground 6 of the Memorandum of Appeal complains that the damages awarded were inordinately high. In his written submissions, however, learned counsel for the Appellant expressly declined to press this ground independently, submitting that quantum “eclipses” and becomes “a non-issue” once liability is set aside. Having found that liability is not to be disturbed, I am left with no live challenge to quantum properly argued before me; an appellant who abandons a ground of appeal in submissions cannot expect the Court to resurrect and argue it on his behalf. 44.In any event, and for completeness, I have examined the award and find no basis upon which I would have interfered even had the point been fully argued. The sum of Kshs.50,000/= for pain and suffering was, in fact, the very figure proposed by the Appellant at trial, and is consistent with the conventional range applicable where death is instantaneous. The sum of Kshs.100,000/= for loss of expectation of life was common ground between the parties. On loss of dependency, the trial court, in the absence of documentary proof of the deceased's earnings, adopted the global-sum approach urged by the Appellant himself at trial, awarding Kshs.1,000,000/=; that approach finds support in Jacob Ayiga Maruja & Another v Simeon Obayo, Civil Appeal No. 167 of 2002 [2005] eKLR, where the Court of Appeal endorsed resort to a global sum for loss of dependency where a dependant’s earnings cannot be established with documentary certainty. 45.Special damages were correctly confined to Kshs.570,890/=, being the sum actually supported by receipts, notwithstanding that a higher figure had been pleaded, in keeping with the settled principle that special damages must be strictly pleaded and proved. I find no error of principle in the award, and no basis upon which to disturb it. Ground 6 also fails. Disposition 46.For the foregoing reasons, I find no merit in this appeal. The upshot is that:a.The appeal be and is hereby dismissed in its entirety;b.The judgment and decree of the Chief Magistrate's Court at Thika delivered on 10th December 2024 in Civil Suit No. E696 of 2022 be and are hereby affirmed; andc.The Appellant shall bear the costs of this appeal. 47.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16th DAY OF July 2026.……………………………………………………BENARD WAFULA MURUNGAJUDGEDelivered on a virtual platform in the presence of:Njenga instructed by Kiarie Kariuki for AppellantsWangui Kuria instructed for Respondents (N/A)Kevin Babu - Court Assistant