https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9786

Musyoka v Kihara (Suing as the Administrator of the Estate of the Late Nicholas Muchemi Ndundu) & another (Civil Appeal E265 of 2024) [2026] KEHC 9786 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 9786 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E265 of 2024 NIO Adagi, J June 23, 2026 Between Jackline Syokau Musyoka Appellant and Margaret Wanjiku Kihara (Suing as the Administrator of the Estate of the Late Nicholas Muchemi Ndundu) 1st Respondent Patrick Karimi Muthoga 2nd Respondent (Being an appeal from the judgment and decree of the Senior Resident Magistrates Hon. R.W Gitau. in Case No. 355 of 2022 delivered on 27th June 2024) Judgment Brief facts 1.The 1st Respondent herein filed a suit against the Appellant vide a Plaint dated 13th April, 2022 in the Chief Magistrate’s Court at Mavoko. The 1st Respondent sought prayers for damages, costs, and interest of the suit. The said suit arose from allegations of negligence by the Appellant's authorized driver, servants, and/or agent. The 1st Respondent proceeded to enumerate the particulars of negligence at paragraph 4, which were expressly denied by the Appellant vide its Statement of Defence dated 16th December, 2019. The Defendant joined a third party, Patrick Karimi Muthoga (the 2nd Respondent herein) to the proceedings who equally filed a defence denying the Appellant’s allegations of negligence. 2.On 10th July, 2023, the parties agreed by consent to select MCCC E355 of 2022 as the test suit on the issue of liability. MCCC E356 of 2022 and MCCC E357 of 2022 were stayed to await the outcome of the test suit. The matter proceeded to full hearing before the Honourable R.W. Gitau (SRM). 3.The 1st Respondent called 4 witnesses to support her case, whereas the Appellant called 1 witness. The 2nd Respondent closed his case without calling any witness.Judgment was entered in favour ofthe Respondent on 27th June, 2024 with the trial court holding the Appellant 100% liable for causing the said accident. In so holding, the trial court stated that the occurrence of the road traffic accident was not in dispute. However, the manner in which it occurred is highly contested. According to the PW2, the driver of KCL 145A was overtaking and he caused the accident. He confirmed that damages to the Defendant's motor vehicle were concentrated on the driver's side (right). DW1 on the other hand blamed the driver of KCL 145A for the occurrence of the accident. 4.According to DW1, motor vehicle KBZ 089E carelessly overtook resulting in an accident. The trial magistrate noted that DW1 was not consistent in his testimony. At one point, he testified that there was a climbing lane then he recanted. On one hand he testified that though he was navigating a corner, he could see some distance ahead and at another point, he testified that he did not see motor vehicle KBZ 089E before the accident. In light of the inconsistencies, the trial court found PW2's testimony which was unshaken in cross examination to be more credible and further found that the Appellant's driver was 100% liable for the accident for careless overtaking. The Appellant was is vicariously liable for acts or omissions of his driver. 5.The Appellant being aggrieved by the said judgment lodged the instant appeal vide a memorandum of appeal dated 4th October, 2024. The Appellant has raised the following grounds of appeal;a.That the Honourable Learned Magistrate erred in law and in fact in finding the Appellants 100% liable despite overwhelming evidence tendered by the Appellant.b.That the Honourable Learned Magistrate erred in law and in fact in disregarding the overwhelming evidence tendered by the Defence and further failed to apportion liability between the Appellant and the deceased equally.c.That the Honourable learned Magistrate erred in law and in fact in failing to find that the deceased was the author of his own misfortune.d.That the quantum of damages is excessive and an erroneous estimate of the damages that may be awarded to the respondent with due regard had to the circumstances of case before the subordinate court and the weight of precedents in similar the circumstances.e.That the learned Magistrate misdirected himself by failing to consider the evidence and the submissions by the Appellant while arriving at the judgment.f.That the Honourable Learned Magistrate erred in law and facts in relying on extraneous evidence in arriving at the decision in apportioning liability between the parties involved. 6.The appeal was canvassed by way of written submissions. Only the Appellant and the 2nd Respondent filed their respective submissions on the appeal. Appellant’s submissions 7.The Appellant submitted that PW1 was the police officer Pius Kariuki who upon cross examination testified as follows:a)He was not the Investigating officerb)He did not visit the scene of the accidentc)He did not have the police file or the OB extract reporting the subject accidentd)He only came to produce the abstract as it appears.e)The Police Abstract indicated that the matter was still pending under investigations 8.That PW2 was Elijah Kariuki who testified as the eye witness. He adopted his witness statement filed together with the Plaint as his evidence in chief. Upon cross examination, it was his testimony that:a)) Accident happened at 9.00 p.m.b)Motor vehicle registration KBZ 089E was not overtakingc)He saw motor vehicle KCL 145A overtaking before it hit the motor vehicle he was travelling in.d)He did not record his witness statement with the police and he is not aware of the outcome of any investigations by the police. 9.The Appellant noted that PW2 was neither listed as a witness to the accident in the police abstract nor was any evidence presented of the PW2 being at the scene of the accident. However, the Appellant notes further that the eye witness’s evidence is not reliable in that his statement does not show clearly how the accident happened and /or clearly show negligence on the part of the Appellant’s driver. Further there is no evidence presented in the trial court placing the eye witness at the scene of the accident. There is no proof tendered that he was at the scene of the accident on the material date. It is therefore the Appellant’s submission that there was no way that he could testify on the circumstances that led to the subject accident. 10.It was submitted that the claim herein is founded on the tort of negligence hence the Plaintiff ought to establish negligence on the part of the Appellant/Defendant's driver of motor vehicle registration number KCL 145A at the material time. For this proposition the Appellant relied on the Court of Appeal decision in Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau [2016] eKLR. The Court of Appeal ably pronounced itself as follows:“We would therefore venture to suggest that before the trial court can conclude that the plaintiff's case is not controverted or is proved on a balance of probabilities by reason of the defendant's failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3 Others (supra) is totally different from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintiff to judgement, irrespective of the quality and credibility of the evidence that the plaintiff has presented. In our view the latter proposition has no sound legal basis." 11.Further the Appellant relied on the case of Kiema Muthuku-vs- Kenya Cargo Hauling Services Ltd (1991)2258 as cited in Dennis Maosa Kibegwa v Ochieng'i Mosero Joyce & Another [2019] eKLR, the court held that”“... 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..." 12.That from the foregoing, it is obvious that the allegation that the driver of motor vehicle registration number KCL 145A was negligent was not sufficiently proved and remains just, an allegation. 13.That on the other hand, the Appellant’s driver testified that on the material day, he was driving motor vehicle registration number KCL 145A from Tanzania towards Nairobi. As he approached Athi River at about 2300hrs, he was negotiating a corner just before Shalom Hospital when a Toyota Axio registration mark KBZ 089E attempted to overtake from the opposite direction and was approaching at a high speed. He tried to avoid it by swerving to the left side but unfortunately it rammed into the lorry's front bumper with its front right panels. 14.The Appellant’s witness blamed the deceased for driving at a very high speed, overtaking when it was not safe to do so and encroaching on his lawful lane and therefore putting himself in harm's way. 15.That DW1 was present at the scene of the accident and is the only witness who can independently testify as to the circumstances of the accident. That DW1's evidence was consistent even during the cross-examination and his testimony should be construed as the true chain of events leading to the accident. Further, DW1 did his best in the circumstances avoiding the deceased and the accident was too sudden and unanticipated. 16.The Appellant stated that the accident was fortuitous and was not due to any negligence on their part. Reliance was placed in Civil Appeal No. 57 of 2007 Nzoia Sugar Company Limited vs David Nalyanya [2008] eKLR, the learned judge stated:“... from the evidence in record, I do not see any evidence adduced on the manner in which the lorry in question was being driven. The issue of excessive speed, failing to keep any proper lookout for other motor vehicles etc. was not even advanced in the plaintiff's evidence. Indeed, the plaintiff's evidence is only to the effect that the accident occurred...." 17.The Appellant submitted that the 2nd Respondent (third party) did not call any independent witness to shed light on the circumstances of the accident. It is the Appellant’s humble submission that the totality of evidence before this court is scanty and not sufficient to hold the Appellant liable. The onus was on the 1st Respondent to prove the Appellants' negligence. The law is now well settled that the duty to prove a case on a balance of probability lies squarely on the Plaintiffs. 18.The Appellant also relied on the case of Kiema Muthuku-Vs- Kenya Cargo Hauling Services Ltd (1991) 2258 as cited in Dennis Maosa Kibegwa V Ochieng'i Mosero Joyce & Another [2019] eKLR, the court held that:“... 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.The Appellant therefore ventures to suggest that before the trial court can conclude that the plaintiff's case is not controverted or is proved on a balance of probabilities by reason of the defendant's failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. 20.In light of the foregoing, the Appellant submitted that the trial magistrate misdirected herself by taking into consideration the extraneous evidence by the Respondent while failing to acknowledge that the third party did not tender any evidence to rebut the Appellant’s witness evidence who was actually a driver of the motor vehicle registration number KCL 145A. 21.The Appellant prays that the court be pleased to set aside the award on liability and wholly hold the third party liable for the accident herein. The Appellant also pray that the third party does pay the costs of this Appeal and those of the trial court. 1st Respondent’s submissions 22.The 1st Respondent submitted that the balance of probability standard means that the court was satisfied that an event occurred. The 1st Respondent urged this court to be persuaded by Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 where he observed that;“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.” 23.The 1st Respondent further submitted that the Appellant failed to discharge the burden of proof for contributory negligence on the part of the deceased. The Appellant filed a statement of defence where he alleged contributory negligence on the part of the deceased and a witness statement. (At pages 22,23 and 28 of the Record of Appeal). The Appellant also called one witness to testify in support of this allegation. (At pages 71 of the Record of Appeal). Furthermore, the Appellant joined a third party in the proceedings (At page 31 of the record of appeal). 24.The Appellant called DWI, whose testimony was marred with inconsistencies and as admitted during cross-examination by the third party, DWI admitted that he lied about the existence of a climbing lane on the accident area (At page 73 and 74 of the Record of Appeal). DWI also admitted that the accident occurred at a corner and he confirmed that he did not slow down as required by the traffic laws (At page 73 of the Record of Appeal). Consequently, the testimony given by the Appellant's witness in the trial court was inconsistent and the trial court could not rely on it to draw reasonable conclusions. 25.The 1st Respondent further submitted that the trial court relied on the documents and witness testimonies adduced by the parties in making its findings. In this case the Appellant alleged the occurrence of the accident was occasioned by the contributory negligence of the 1st Respondent. The 1st Respondent's case was supported by the testimony of PW2 an eye witness, whose evidence placed the Appellant's driver at fault, thereby proved the particulars of negligence as appearing in the Plaint. That evidence was not shaken during cross-examination (At pages 65 and 66 of the Record of Appeal). 26.The 1st Respondent further submits that the Appellants had a duty to prove contributory negligence at the trial court but failed to do so. The evidence tendered by the Appellant at the trial court did not carry a reasonable degree of probability. The Appellant had the opportunity to discharge the burden of proof in his favour but failed to do so. 27.The Appellant called one witness DWI to testify is support of his case, and the witness gave unreliable evidence. DWI testimony was inconsistent and the witness made an admission to giving false testimony during cross examination by third party. The 1st Respondent submits that the evidence tendered by the Appellant in the lower court was inconsistent and hence unreliable and the trial court could not rely on it to make a reasonable conclusion as to how the accident happened. The trial court could neither rely on the Appellant's evidence to apportion liability upon the third party. In such a situation, the trial court was only left with the evidence of PW2 and the police officer. (At page 79 of the Record of Appeal). 28.The 1st Respondent invited this court to be guided by the authority in Khambi and Another v. Mahithi and Another [1968] EA 70, where it was held that:“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge”. 29.The 1st Respondent submitted that it is thus imperative for this court to take into account that the totality of the evidence adduced by the Appellant was not sufficient to have the case decided in his favour. The Appellant has not shown how the trial court misapprehended the evidence on record or acted on wrong principles. The 1st Respondent urged this court to affirm to adopt that the evidence adduced by the 1st Respondent was sufficient to prove on a balance of probability, the occurrence of the accident involving the Appellant's motor vehicle. 30.It is the 1st Respondent's submission that the trial court analysed the evidence adduced by the parties, and relied on the relevant principles in making its determination. The 1st Respondent urged this court to reaffirm the trial court's findings and dismiss the Appellant's appeal with costs. Analysis and Determination 31.This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424. 32.In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -“A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 33.A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion 34.I have carefully perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; the said appeal only challenges liability and the I will proceed to consider whether the trial court’s finding on liability should be disturbed on this appeal. Liability 35.The Appellant faults the trial magistrate for failure to apportion liability against the deceased and the third party but instead holding the Appellant 100% liable in negligence occasioning the accident herein. 36.It is trite law that the cornerstone of tortious liability is proof of negligence. The burden of that proof rests, immovably and unequivocally, upon the shoulders of the Plaintiff. As the Court so eloquently stated in Jamal Ramadhan Yusuf & Another v Ruth Achieug Onditi & Another [2010] eKLR that:“The mere occurrence of an accident does not raise a presumption of negligence. He who asserts must prove." 37.A cursory perusal at the trial court’s proceedings reveals that the evidence touching on liability in this case is that of PW2-Elijah Kariuki, the alleged eye witness and DW1-Kenneth Musyoka, the driver of motor vehicle registration number KCL 145A. 38.. PW2 testified that he witnessed the accident. He adopted his witness statement as his evidence in chief. The witness statement is dated 13th April 2022 which I have read through. PW2 stated that on 11th July 2021 at 9.00p.m, he was seated at the co-driver’s seat. He was travelling as a lawful passenger in motor vehicle registration number KBZ 089E along Nairobi-Namanga Road at Shalom area when the driver of motor vehicle registration number KCL 145A so negligently and carelessly drove the said motor vehicle thus losing control of it and allowing the same to collide onto motor vehicle registration number KBZ 089E and as a result of which he sustained serious injuries. He listed the reasons for blaming the driver of KCL 145A as follows: Failing to keep any proper look out. Driving the motor vehicle registration mark KCL 145A at a speed that was too fast in the circumstances. Failing to have any or any proper control of the motor vehicle registration mark KCL 145A. Driving without any due regard and attention. Failing to have any or any sufficient regard for the safety of other road users and in particular the Plaintiff. Failing to brake, stop, swerve, slow down or in any manner manage or control the said motor vehicle registration number KCL 145L so as to avoid the accident subject matter. Driving recklessly, carelessly and dangerously. 39.PW2 testified that the driver of KCL 145A was to blame as he was overtaking and he caused the accident. 40.On cross examination by Mr. Bosire, he stated that there was no motor vehicle ahead of them. It was not their motor vehicle that was overtaking. KCL hit them from their lane. He maintained that motor vehicle KCL 145A was overtaking. He saw motor vehicle KCL 145A before it hit them. After the accident, he was taken to hospital. He could not tell where their motor vehicle fell. He didn’t record a statement at the police station on the same day but did so at a later date. He didn’t know the outcome of the investigations. 41.On cross examination by Mr. Thairu, PW2 stated that the driver’s right wheel came off. He repeated that they saw the motor vehicle before the accident. It was ahead of them. KCL was the one overtaking. He blames KCL for joining their lane. They had nowhere to escape as there was a ditch. 42.DW1 testified and adopted his witness statement dated 10th August 2022 which I have also read through. He stated that on the material day at 7.30 p.m he was driving motor vehicle registration number KCL 145A from Tanzania towards Nairobi and as he approached Athi River at around 2300hrs, he was negotiating a corner just before Shalom Hospital when a Toyota Axio registration KBZ 089E attempted to overtake another motor vehicle from the opposite direction at a high speed. DW1 tried to avoid it by swerving to the left but unfortunately, it rammed into the lorry’s front bumper with its front right panels. He blamed the driver of KBZ 089E which was an Axio. He overtook carelessly at undesignated area and at a high speed when it was not safe to do so. He denied being charged with a traffic offence. 43.On cross examination by Ms. Kisiangani, he confirmed the date of the accident to be 11/7/2021. It involved motor vehicle KBZ 089E and KCL 145A. He stated that the was the driver of the vehicle that belonged to the Appellant who was his employer. He stated that he was alone in the motor vehicle. The accident occurred at 11.00pm and he could see the road well. The road was not busy at the time. He did not state that he slowed down or what speed he was driving. He was on the climbing lane. The road had 2 lanes. He was on the left and the accident was on the left lane. He had not seen KBZ 089E and only saw it after the accident, His vehicle was inspected after the accident. 44.On cross examination by Mr. Kairu, DW1 confirmed that the Appellant was his employer. He maintained that the road had 2 lanes and he had kept left. He was on the climbing lane. The road had no climbing lane. The accident occurred as you approach a corner. The deceased plaintiff was the driver of KBZ 089E which had several passengers who all blamed him. Th police blamed him too but he blames the other driver, the third party whom he did not press charges against. 45.PW1- No.xxx92 PC Pius Kariuki from Athi River police station testified that he was only in court to produce the Police Abstract (PExt.3) issued to the family of the deceased Nicholas Muchemi who was involved in the road traffic accident herein. The deceased was the driver of KBZ 089E. The accident also involved KCL 145A. The Investigating Officer was P.C Muthengi. He didn’t have the police file, the OB extract or the sketches of the scene of the accident. He only came to produce the police abstract as it appears. He was not aware if the matter was being investigated 46.Upon my analysis of the evidence above by PW2 and DW1 on how the accident occurred, I find that whereas PW1 testified that the driver of KCL 145A was to blame as he was overtaking and he caused the accident he has in his witness statement, stated that on 11th July 2021 at 9.00p.m, he was seated at the co-driver’s seat and was travelling as a lawful passenger in motor vehicle registration number KBZ 089E along Nairobi-Namanga road at Shalom area when the driver of motor vehicle registration number KCL 145A so negligently and carelessly drove the said motor vehicle thus losing control of it and allowing the same to collide onto motor vehicle registration number KBZ 089E and as a result of which he sustained serious injuries. He listed the reasons for blaming the driver of KCL 145A in his witness statement. I have noted that PW2 and did not at all list overtaking as one of the reasons for blaming the driver of motor vehicle registration number KCL 145A. PW1 also categorically testified that, he or they saw motor vehicle KCL 145A before it hit them. The question this court is asking itself is how PW1 was able to see motor vehicle KCL 145A overtaking when he was seated in the co-driver’s seat; it is common practice that overtaking of any vehicle on our Kenyan roads is normally on the right side, and in this case the driver’s side. This court is finding it unbelievable that PW2 who was seated in the co-driver’s seat was able to see motor vehicle KCL 145A overtaking and even before it hit them. PW2 did not explain how this was possible for him. Even assuming PW2 saw KCL 145A overtaking before it hit them, he did not state what precaution he did including alerting the deceased who was driving their vehicle to avoid the accident. 47.PW1 further stated that motor vehicle KCL 145A was the one overtaking and blamed the driver of KCL for joining their lane. They had nowhere to escape as there was a ditch. 48.On the other hand, DW1 testified that he was negotiating a corner just before Shalom Hospital when a Toyota Axio registration KBZ 089E attempted to overtake another motor vehicle from the opposite direction at a high speed. He blamed the driver of KBZ 089E which was an Axio for overtaking carelessly at undesignated area and at a high speed when it was not safe to do so. He maintained that the road had 2 lanes and he had kept left. He was on the climbing lane, and again he stated that the road had no climbing lane. The accident occurred as you approach a corner. 49.Another issue is that whereas PW1 stated that the accident occurred at 9.00p.m, DW1 stated that the accident occurred at 2300hrs which is the exact time indicated in the Police Abstract (at page 17 of the record of appeal) produced by the 1st Respondent as an exhibit. Who between the two is being truthful? 50.Again, both PW2 and DW1 seem to be blaming the each of the drivers of the two subject motor vehicles as it suits their case for overtaking and causing the accident. 51.PW1 testified that he was not the Investigating Officer but PC Muthengi was. He did not tell the court where the said PC Muthengi was and why he was not able to attend court to testify. He was also not able to inform court the status of the investigations on the accident. He further stated that there were no sketches of the scene of the accident. 52.In as much as the trial court found DWI’s evidence to be marred with inconsistences, this court finds that based on the analysis above, just like DW1, PW2 was equally not consistent with his evidence. 53.In addition, I find that in the absence of the sketches or results of the investigations into the accident herein; it is difficult to believe who between PW2 and DW1 is telling the truth. Does the area have a ditch, was the point of collision/impact as alleged by PW2 and or does it also have a climbing lane and a corner as alleged by the DW1? 54.The moment the trial court observed that the manner in which the accident happened was highly contested and thus doubted the evidence of the DW1 who was the Appellant’s witness and a driver who was directly involved in the accident, in absence of any other independent evidence the court had no basis of relying only on the evidence of PW2 to arrive at its decision as how the accident occurred. In this instance, the court was only left with evidence of the PW2 and the investigating officer. 55.I have looked at the evidence of the investigating officer which I have produced elsewhere in this judgment, the evidence did not corroborate the evidence of PW2 as to how the accident occurred.In Postal Corporation of Kenya & Anor v Dickens Munayi (2014) eKLR the court held that:“I am clear in my mind, that it is difficult to tell the extent to which each party (Respondent and Appellants' driver) contributed to the accident. And as rightly submitted by counsel for the Appellants, when the court is in doubt on the extent of contribution by either party, the most prudent thing to do is to apportion the contribution at a ratio of 50% :50%. I therefore entirely concur with the findings in the cited cases of Haji v Marair Freight Agencies Ltd (1984) eKLR, 139 in which the Court of Appeal held; “Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable contribution the blame can be apportioned equally on each …...” 56.Similarly in the case of Khambi & Another vs Mahithi and Another [1968] EA 70, it was held that:“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.” 57.Guided by the above decisions, it is my finding that the Appellant Jackline Syokau Musyoka and the deceased Nicholas Muchemi Ndundu are equally to blame for occurrence of the accident at 50%:50%. 58.The award on quantum has not been challenged by the Appellant. This court will not disturb the trial court’s award on quantum save that the same shall be subjected to the apportioned contributory negligence. 59.As regards costs, Section 27 of the Civil Procedure Act provides that:“Provided that the costs of any action, cause or other matter issue shall follows the event unless the court of judge shall for good reason otherwise order.” 60.On the issue of costs, in this case, considering all circumstances of the case, I order that the 1st Respondent will have the costs plus interest of the lower court case while the Appellant will have costs of this appeal assessed at Kshs.30,000/=. 61.A thirty (30) days stay of execution is granted. Right of appeal within 30 days. 62.It is so ordered. This file is closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 23RD JUNE 2026NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH JUNE 2026In the presence of: