https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8633

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CIVIL APPEAL NO. E118 OF 2025 NANCY KADESA INGIMBA & BOAZ OKEYO INGIMBA (Suing as the administrators & legal representatives of the estate of WILSON SORE INGIMBA) ………………………………………………………... APPELLANT - VERSUS - MATUNDA FRUITS BUS SERVICES LIMITED ………...… RESPONDENT (Being an appeal from the judgment of Hon. Cheruiyot (SPM) made on 23/4/2025 in Ksm CMCC No. 274 of 2019) 1. The appellants sued the respondent vide a plaint dated 27/5/2019 for general J U D G M E N T damages and special damages of Kshs. 30,550/- as well costs of the suit with interest for the fatal injuries sustained by the deceased in a fatal road traffic accident. 2. The respondent entered appearance and filed a statement of defence dated 28/3/2022 in which it denied the appellants’ claim and put them to strict proof of the same. 3. The matter proceeded to trial and by a judgment delivered on 23/3/2025, the trial court dismissed the appellants claim. Page 1 of 13 4. Being dissatisfied with the said judgment/decree, the appellants lodged this appeal vide the Memorandum of Appeal dated 15/5/2025 and raised seven (7) grounds of appeal as follows: - a) That the learned trial magistrate erred in law by failing to find that the appellant by herself and though her witnesses had on a balance of probabilities discharged their burden of proving their case on negligence against the respondent. b) That the learned trial magistrate erred in law and in fact by failing to find that the suit traffic accident occurred as a result of the whole or partial negligence on the part of the respondent. c) That the learned trial magistrate erred in law by failing to appreciate that even in the event of absence of concrete evidence as to who between the deceased and the respondent was to blame for the causation of an accident the law required him to find both equally to blame. d) That the learned trial magistrate erred in law by failing to consider from the variant versions of how the accident happened as related by PC Godfrey Ndiema the investigating officer and heavily relied Page 2 of 13 on the evidence of PC Ezra Otieno who was not the investigating officer in order to determine the issue of liability. e) That the learned trial magistrate erred in law by failing to properly analyse the rival versions as to how the suit traffic accident occurred and in a proper reasoned manner resolve the same. f) That the learned trial magistrate erred in law and fact by failing to properly evaluate evidence before him, set out the issues falling for determination and critically analyse the same as provided by Order 21 Rule 4 and 5 of the Civil Procedure Rules 2010 thereby leading to him falling inti error in dismissing the appellant’s case. g) That the learned trial magistrate erred in law by failing to assess the quantum of damages payable to the appellant regardless of his finding on liability. 5. The appeal was disposed off by written submissions which I have duly considered. 6. This being the first appellate court, it is duty bound to evaluate the evidence afresh and come to its own independent findings and conclusions but at all times having in mind that it did not have the advantage of seeing the Page 3 of 13 witnesses testify. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. 7. Before the trial court, Nancy Kadesa Ingimba (Pw1) testified that the deceased was her brother. She adopted her statement filed on the 27/5/2019 as her evidence in chief and testified that the motor vehicle that caused the accident killing her brother bore the registration no. KCC 004A driven by the respondent’s driver. That the deceased, who was a motorcycle rider, was knocked from behind and sustained serious injuries to the head and that he died at the age of 26 years. That the deceased was the sole bread winner of his family of his parents and siblings and would earn Kshs. 2,000/- per day. 8. In cross-examination, she told the court that she arrived at the scene after the accident had occurred. That she did not have any evidence to show that the deceased paid school fees for his siblings or maintained his aged parents. 9. Pw2, No. 50139 PC Geoffrey Ndiema testified that on the 10/4/2017 he visited the scene of an accident between a bus belonging to the respondent registration number KCC 040A and motorcycle registration number KMDY 639J ridden by the deceased. That the matter was still under investigations. 10. In cross-examination, he stated that the rider had been knocked down by the bus. That the bus hit the rider from behind and that the rider died on the spot. Page 4 of 13 In re-examination, it was his testimony that the vehicle was to blame for the accident. 11. On its part, the respondent called No. 229856 PC Joshua Arume as Dw1. It was his testimony that he was testifying on behalf of Pw2, the investigating officer. It was his testimony that the rider of the motorcycle rammed the bus from behind and was thus to blame for the accident. 12. In cross-examination, he admitted that he was posted to the station after the accident had occurred, that Pw2 was the investigating officer over the matter. That his testimony was based on what was in the police file by various individuals including the driver of the bus, Stephen Wanjohi who testified that the deceased rammed the bus on the middle of the right side and one Apere who stated that the vehicle was hit from behind. Dw1 did not produce the police file in support of his case. 13. It is based on this evidence that the trial court rendered its decision. From the foregoing, the grounds of appeal may be summarized as follows; a) Whether the trial court misdirected itself in ignoring the evidence on record and thus failing to apportion liability against the respondent; b) Whether the trial court’s judgment failed to comply with Order 21 Rules 4 & 5 of the Civil Procedure Rules 2010 and Page 5 of 13 c) Whether the trial court erred in failing to assess liability regardless of his finding on liability. 14. On liability, in Ndatho v Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR) (16 March 2022) (Judgment), the court reiterated Lord Reid’s statement in Stapley v Gypsum Mines Limited (2) (1953) A.C 663 at P. 681, wherein he stated thus: - “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 fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone 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 Page 6 of 13 that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.” 15. The general rule is that he who alleges must prove. That is the decree in section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: - “As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 16. In the present case, it was the appellants’ duty to produce evidence that the appellant was liable for the accident that led to the fatal injuries complained of. None of the witnesses presented by the appellants were present when the accident occurred. Even PC Ndiema (Pw2) despite claiming that the respondent’s driver was to be blamed for the accident as he hit the deceased Page 7 of 13 from behind admitted that the investigations were incomplete. Further, no report was adduced by PC Ndiema in support of his claims. 17. Based on the evidence presented up to this point, it is my view that the appellants failed to attach causation of the accident to the respondent’s driver. The appellants failed to satisfy the initial burden of proof as to necessitate shifting of the burden to the respondent. Without this evidence being available to the court, there was no basis of apportioning liability against the respondent. 18. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258, the Court of Appeal, reiterated the foregoing: “There is as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.” 19. Each case must turn on its peculiar facts. Drivers cannot be presumed to be all mad and, ipso facto, cause of accidents. A court must never proceed as someone has ipso facto proved its case, the court must let chips fall where they may or better still, must. 20. In Gideon Ndungu Nguribu & another v Michael Njagi Karimi [2017] eKLR, the Court of Appeal stated that “determination of liability in a road Page 8 of 13 traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 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.” Page 9 of 13 21. In the present case, since Pw2 was the investigating officer, it would have been expected that he should have either produced the police file or any evidence so far collected in that file that pointed towards who caused the accident. The statements of witnesses or the investigations diary would have assisted. As it turned out, when the investigations diary was produced by Dw1, it pointed towards the deceased having hit the respondent’s vehicle from behind. 22. In view of the foregoing, any positive evidence that Pw2 had tendered was not only challenged, but was obliterated or displaced by that evidence. The evidentially burden of proof shifted back to the plaintiff to prove that the accident occurred otherwise than as stated in the Investigations Diary. 23. Accordingly, the trial court cannot be faulted for holding that the appellants had failed to prove their case as against the respondent. 24. As to whether the trial court having dismissed the appellants’ claim still had a duty to determine quantum, the failure to determine damages awardable was erroneous as was held in the case of Frida Agwanda & Ezekiel Onduru Okech v Titus Kagichu Mbugua [2015] eKLR where the court stated that: - Page 10 of 13 “Indeed, even when the learned magistrate dismissed the claim, in such a case, he should have assessed damages, notwithstanding the dismissal. That now will be done by this court, for convenience, instead of returning the file to the lower court for assessment.” 25. Similarly, in Lei Masaku v Kaplana Builders Ltd [2014] eKLR it was observed thus: - “It has been held time and again by the Court of Appeal that the court of first instance shall assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issue of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court need to know the view by the court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behooves this court to assess quantum.” 26. In the present case, the appellants contended that the deceased was the sole provider for his family which they termed as including his parents and 8 Page 11 of 13 siblings, all of whom where aged above 18 years. There was no evidence adduced to show that the deceased used to provide for the said family despite allegations that he used to pay school fees for his sisters. 27. Accordingly, had they proved liability as against the respondent, this court would not have granted the appellants any award for their claim for Loss of dependency under the Fatal Claims Act. Nominal damages of Kshs. 110,000/- being Kshs. 10,000/- for pain and suffering and Kshs. 100,000/- for loss of expectation of life under the Law Reform Act. 28. Finally, the appellants impugned the trial court’s decision for failure to comply with Order 21 Rule 4 and 5 of the Civil Procedure Rules 2010. The said provisions provide inter alia that Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision and that in suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue. 29. A perusal of the impugned judgment reveals that the trial magistrate indeed complied with the provisions cited above. I find no reason to fault the judgment for failure to comply with Order 21 Rule 4 & 5 of the Civil Procedure Rules 2010. Page 12 of 13 30. For avoidance of doubt, I find that this appeal is partially successful in that the trial court erred in failing to ascertain damages despite finding that the appellants had failed to prove liability on the part of the respondent. That notwithstanding, the appellants failed to prove liability on the part of the respondent and thus their claim for damages fails. 31. Accordingly, the appeal is without merit and is hereby dismissed with no order as to costs as the appeal was partially successful. It is so decreed. DATED and DELIVERED at Kisumu this 19th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 13 of 13