Ngure v Lelei (Civil Appeal 101 of 2020) [2026] KEHC 13185 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO 101 OF 2020** **JOSEPH KAAI NGURE………………………………...…………APPELLANT** **VERSUS** **JOYCE JEROTICH LELEI……………………………………..RESPONDENT** ***(Being an appeal against the judgment by Hon. M. Kyalo (SRM) delivered on 6th May, 2020 in Nakuru CMCC No. 1548 of 2018****)* **JUDGMENT** 1. The background of this appeal is that by a Plaint dated 15th September, 2018, the Appellant sued the Respondent seeking general damages, special damages, costs and interest on the suit. 2. The Appellant claimed that on or about 20th September 2018, he was walking along Kenyatta Avenue, when motor vehicle registration number KBT 667M was negligently driven, lost control, veered off the road and knocked him, thereby occasioning him severe bodily injuries. 3. Upon being served, the Respondent filed a Statement of Defence dated 17th January, 2020 denying the claim together with the particulars of negligence. In the alternative, and on a without prejudice basis, she averred that if indeed an accident occurred, the same was wholly occasioned by the Appellant’s own negligence. 4. The Appellant’s **(PW1)** evidence before the trial court was that he was walking on a pavement at Sidian Bank on the material date and had taken his leg off the pavement at the reserved parking, when the accident vehicle lost control and entered the reserved parking at Sidian Bank and knocked him. He was injured on his left leg and ankle. He was treated, and the accident was reported to the police station. He stated that he did not work for two months due to the injuries he sustained as a result of the accident. The Respondent had called him to attempt a reconciliation. 5. In cross-examination, he stated that the driver could not go further as she could have hit the pavement. She had to reverse to let go of his leg. He also injured his hip while being pulled from the vehicle tyre. He stated that the vehicle was speeding, but he could not tell what type of vehicle it was and could not read the registration number. 6. Further, he stated that the Police Abstract indicated the vehicle as KBT 667M. He told the court it was the vehicle that hit him. He was with a friend but did not call him to testify. He testified that the driver took him to Valley Hospital and paid the bill. He added that he could not walk due to the said injuries. 7. **CPL Koome Jackson** (**PW2)** confirmed that he was neither the Investigating Officer nor the one who made the OB entry. That according to the OB, the vehicle was KBT 667M and not KBP. Further, according to the OB, the vehicle was negotiating a corner at KCB Bank to join the highway. 8. He confirmed that KCB is not Sidian Bank and they are about (six) 6 meters apart. At KCB, there is no road connecting the highway. He could not tell whether the accident occurred before Maasai Market or after Sidian. He was also not aware if the Respondent had been charged for careless driving or whether she was careless. 9. He confirmed that the Investigating Officer filed the OB after visiting the scene. The name of the Respondent is indicated in the Abstract. 10. **Joyce Jerotich Lelei (DW1)** denied knowing the Appellant or ever meeting him. She denied knocking him down. She stated that she was not the registered owner of KBT 667M as her vehicle is KBP 667M. She added that KCB and Sidian Bank are in different places; hence the Appellant was not genuine. Further, that she was neither charged with any traffic case nor called to record a statement. 11. In cross-examination, she stated that she had not indicated her whereabouts on 20th September, 2018, nor did she have a witness to prove she was at Sidian Bank. She denied paying the bill at Valley Hospital 12. Upon hearing both parties, the trial Court delivered its judgment wherein holding that the Appellant had failed to prove her claim. Accordingly, the Appellant’s suit was dismissed with costs to the Respondent. 13. Aggrieved by that decision, the Appellant lodged the present appeal vide a Memorandum of Appeal dated 4th June, 2020 on the following:- 14. ***That the Learned Trial Magistrate erred in law and in fact in disregarding the evidence adduced by the Appellant and his witness, thereby arriving at a wrong decision, more so that the Appellant had not proved his case against the Respondent on a balance of probabilities*** 15. ***That the Learned Trial Magistrate erred in law and in fact by making a finding that the Appellant had not established the identity of the motor vehicle that knocked him down thereby arriving at a wrong decision.*** 16. ***That the Learned Trial Magistrate erred in law and in fact in making a finding that the Appellant had not proved on a balance of probabilities that the injuries sustained emanated from a grisly road accident with motor vehicle registration number KBP 667M owned by the Respondent.*** 17. ***That the learned Magistrate erred in law and fact in disregarding the evidence of CPL KOOME JACKSON whose evidence placed the Respondent and her motor vehicle registration number KBP 667M at the scene of the accident.*** 18. ***That the learned Magistrate erred in law and fact when she failed to appreciate the appellant's evidence adduced and submissions filed.*** 19. The Appellant thus prays that the appeal be allowed with costs, the judgment of the Trial Court delivered on 26th May, 2020 be set aside or varied and the Court be pleased to make such further and other orders as it may deem fit and just. 20. The Appeal was heard by way of written submissions. The Appellant filed his submissions on 11th December, 2025 while the Respondent filed her submissions on 10th December, 2025. **Appellant’s Submissions** 1. It is submitted that the evidence of PW2 corroborated the Appellant’s evidence. He added that at the time of filing the Police Abstract, mistakes or errors normally occur and a genuine error on the Police Abstract regarding motor vehicle registration number cannot be visited on an innocent pedestrian. 2. It is argued that in her statement, the Respondent never identified her whereabouts on that fateful day. Further that the Respondent does not demonstrate in what way the Appellant was to blame for the accident pursuant to **Section 107** of the **Evidence Act**, or lodge a complaint at any police station. 3. Submitting that the Appellant had discharged the burden of proof, reliance was placed on several cases including ***Susan Kanini Mwangangi & Anor vs Patrick Mbithi Kavita* *[2019] eKLR.*** 4. Further, it was submitted that the Respondent had to demonstrate negligence on her part and in support of that argument, the Appellant relied on the case of ***Francis Kamande Kimani & Jane Wangui Kamande (Suing as the Legal Representatives of the Estate of the Late Jacob Kimani Kamande (Deceased) vs David Kihanga Macharia* *Nakuru High Court Civil Appeal No. 15 of 2019.*** 5. On quantum, the Appellant proposed a sum of Kshs. 350,000/= as general damages. In support of his proposal, he relied on the case of ***Francis Ochieng & Gabriel Ongele Ogolla vs Alice Kajimba* *Migori Civil Appeal No 23 of 2015*** where **D.S. Majanja** J held: ***“ The injuries sustained by the respondent were multiple soft tissue injuries without any fractures. I have also found that the respondent did not lose 7 teeth as stated in her testimony. The respondent sustained head injuries which aggravated the injuries. Considering the cases cited and inflationary trends, I find that an award of Kshs. 350,000/- would be reasonable in the circumstances.”*** 6. On costs, the Appellant submitted that costs should follow the event and therefore, the Court should make an award in his favour. **Respondent’s Submissions** 1. The Respondent submitted that the Appellant bore the burden of proof to produce evidence to ascertain which motor vehicle was involved in the accident and the place of the accident. That it would be a miscarriage of justice to apportion liability against the Respondent herein when there exist discrepancies on the motor vehicle in question. 2. While relying on ***Njuguna v Kimani & another; Kinyanjui (Third party) (Civil Appeal E036 of 2023)* *[2025] KEHC 692 (KLR****),* the Respondent submitted that the matter the Appellant failed to discharge the burden of proof. 3. On the issue of alibi, the Respondent maintained that this is not the correct forum to raise it as it ought to have been raised before the Court that first dealt with the issue. 4. Further, the Respondent argued that the doctrine of *Res Ipsa Loquitur* does not excuse the Appellant from discharging his burden of proof. Reliance was placed on ***Tonui v Kuber Agency (Civil Appeal E015 of 2023)* *[2024] KEHC 11084 (KLR*)** wherein the High Court held that *Res Ipsa Loquitur* is not a principle of law and it does not relate to or raise any presumption. 5. Consequently, it was argued that having failed to discharge the burden of proof and failing to ascertain if indeed the accident occurred at the place alleged, the Appellant is not entitled to the award of damages claimed. **Analysis and Determination** 1. This Court has considered the Record of Appeal, the rival submissions, the case law cited and the applicable law. As the first appellate Court, it is enjoined to re‑evaluate the evidence afresh and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. See **Selle v Associated Motor Boat Co. Ltd [1968] EA 123.** 2. On liability, the standard of proof is on a balance of probabilities and under **Section 107** of the **Evidence Act**, the primary burden rests on the party who asserts a fact. Further, under **Sections 109** and **112** of the **Act,** the evidential burden may shift depending on how the evidence unfolds. Once a party establishes a prima facie case, the evidential burden thereafter moves to the opposing party to rebut or explain away the inference drawn. 3. The Court of Appeal in ***Michael Hubert Kloss & another v David Seroney & 5 others* [2009] KECA 146 (KLR)** *(Bosire JA, Nyamu JA and Waki JA)*held that:- **“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in *Stapley vs Gypsum Mines Ltd* (2) (1953) AC 663 at p 681 as follows:** ***‘To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”*** 1. In this case, a perusal of the court record reveals material contradictions both in the documents and the testimony by witnesses. Regarding the accident motor vehicle, the police records alternately referred to **KBT 667M** and **KBP 667M**, while the Respondent consistently maintained ownership of **KBP** **667M**. The Appellant also testified to not knowing the make of the vehicle that hit him. He was told by someone who was not called to testify. 2. Further, it was not clear as to where the accident occurred. PW1 placed the accident at the reserved parking at Sidian Bank, while PW2’s evidence was that, as per the OB entry, the accident occurred along Kenyatta Avenue opposite KCB Bank. 3. With these gaps, the burden of proof never shifted to the Respondent, and therefore, the Appellant cannot find solace in the doctrine of res ipsa loquitur. That burden having not been discharged, the Respondent was not obliged to account for her whereabouts on the date of the accident or provide an alibi. 1. This Court has perused the judgment by the trial court leading to dismissal of the Appellant’s suit where it stated:-***From the evidence adduced by the plaintiff, I find that he was unable to prove to this court that he was injured due to the negligence of the defendant reason being that first, this court is still unable to tell from the evidence which caused the accident.*** ***The OB says that it was caused by KBP 667M and the police abstract says it was KBT 66M... The Police officer who testified said he was not sure which vehicle caused the accident. The investigating officer and/or the officer who made entries in the police abstract and the OB was not called to shed light to this court and probably clarify to this court whether it was an error and on which document....The Court cannot therefore be left to fill the gaps by the plaintiff and conclude as to which vehicle was involved in the accident. The Plaintiff had to prove that.*** ***Secondly, the police abstract indicated that the accident occurred along Kenyatta Avenue opposite KCB Bank while the driver was negotiating a corner. The plaintiff stated that the accident occurred at the reserved parking at Sidian Bank.*** 1. This court is satisfied that the trial court was properly guided by the law and facts before arriving at that decision. Consequently, that decision is upheld, though it would have been prudent for the trial court to assess the damages it would have awarded had the Appellant proved liability. 2. In the circumstances herein, this court finds no reason to proceed on the issue of damages. 3. In conclusion, the appeal lacks merit and is therefore dismissed with costs. **Dated and signed at Nairobi this 19th Day of August, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 31st Day of August, 2026.** **……………………….......................** **DR. JOSEPH SERGON** **JUDGE**