https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11189

Mwangi v Njoroge (Civil Appeal E020 of 2025) [2026] KEHC 11189 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11189 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E020 of 2025 AM Hassan, J July 23, 2026 Between James Njagua Mwangi Appellant and Mary Njeri Njoroge Respondent (From the Judgment delivered by Hon. Mukami Wachira, Senior Resident Magistrate, on 17th January, 2025, in MCCC/ E216/ 2023) Judgment A. Introduction 1.This Appeal arises from the Judgment delivered on 17th January, 2025, in MCCC No. 216 of 2023, by Hon. Mukami Wachira, Senior Resident Magistrate. 2.The suit before the trial court was founded on a road traffic accident claim. The Plaintiff (now the Respondent) pleaded that on or about 16th May, 2020, she was lawfully driving Motor Vehicle Registration Number KCX 992P along Thika Road when Motor Vehicle Registration Number KBK 799S, which was being driven negligently and recklessly, collided with her motor vehicle from behind. 3.Upon hearing the matter and evaluating the evidence adduced by both parties, the learned trial magistrate found the Appellant herein 100% liable for the accident and proceeded to award the Respondent damages in the sum of Kshs. 462,099/= together with costs of the suit and interest. 4.Aggrieved by the said judgment, the Appellant lodged the present Appeal by filing a Memorandum of Appeal raising the following grounds:a.That the learned trial magistrate erred in law and in fact by failing to make a determination on the applicability of Section 4(2) of the Limitation of Actions Act.b.That the learned trial magistrate erred in law and in fact by failing to appreciate and apply the provisions of Section 4(2) of the Limitation of Actions Act.c.That the learned trial magistrate erred in law and in fact by awarding excessive damages without sufficient evidential basis. 5.The Appeal was canvassed by way of written submissions. The Appellant filed submissions dated 13th March, 2026, while the Respondent filed submissions dated 27th January, 2026. B. Submission By Parties Appellant’s Submissions 6.The Appellant submitted that the first issue for determination is whether the trial court erred in failing to appreciate and apply the provisions of Section 4(2) of the Limitation of Actions Act. It was contended that the accident giving rise to the suit occurred on 16th May, 2020, whereas the suit was instituted on 23rd May, 2023, being three years and seven days after the cause of action arose. The Appellant argued that the trial court failed to interrogate whether the suit had been filed within the prescribed statutory period or whether it was statute-barred. 7.The Appellant further submitted that although Section 27 of the Limitation of Actions Act provides for extension of time in certain circumstances, such extension can only be obtained through an application made pursuant to Section 28 of the Act. According to the Appellant, the Respondent neither sought nor obtained leave to file the suit out of time. Consequently, the Appellant argued that the suit was incompetent ab initio and ought to have been struck out. The Appellant therefore urged this court to find that the trial court erred both in law and in fact by failing to determine the issue of limitation, thereby rendering the impugned judgment a nullity. 8.On the issue of quantum and liability, the Appellant submitted that the learned trial magistrate erred in awarding special damages amounting to Kshs. 462,099/= without sufficient evidential basis. It was argued that the Respondent failed to establish how the damage complained of, particularly to the front section of the motor vehicle, was occasioned by the accident in question. 9.The Appellant further contended that the trial court failed to properly consider his evidence to the effect that the accident was not solely attributable to him, but was partly caused by the Respondent who allegedly veered into his lane from the second inner lane, thereby occasioning the collision. The Appellant submitted that this version of events was corroborated by the testimony of the Police Officer from Ruiru Police Station, who acknowledged that the circumstances of the accident could support a finding that the Respondent contributed to the occurrence of the accident by encroaching onto the Appellant’s lane. Reliance was placed on Khambi & Another v Mahithi & Another for the proposition that where evidence discloses contributory negligence on the part of both parties, liability ought to be apportioned accordingly. The Appellant therefore argued that the trial court erred in holding him 100% liable for the accident. 10.Lastly, the Appellant challenged the award relating to courtesy car charges, submitting that the same was unreasonable and unsupported by the evidence on record. It was argued that the Respondent did not utilize a courtesy vehicle during the period her motor vehicle was under repair and instead opted to use taxi services. In the circumstances, the Appellant maintained that the claim for courtesy car charges ought not to have been allowed. Respondent’s Submissions 11.On the first issue for determination, namely whether the learned trial magistrate erred in law and in fact regarding the applicability of the Limitation of Actions Act, the Respondent submitted that the Appellant had previously raised the issue through a Preliminary Objection dated 15th February, 2024. The said Preliminary Objection was canvassed by way of written submissions, following which the trial court delivered a ruling on 25th March, 2024 dismissing the objection. 12.The Respondent further submitted that the Appellant neither appealed against nor sought a review of the said ruling. Instead, the Appellant submitted to the jurisdiction of the trial court and fully participated in the hearing and determination of the suit. The Respondent therefore contended that the issue of limitation cannot be re-opened at the appellate stage, as the same was conclusively determined by the trial court. According to the Respondent, the Appellant's attempt to revisit the issue offends the provisions of Section 7 of the Civil Procedure Act, the matter being res judicata. 13.Regarding the second ground of appeal, namely whether the learned trial magistrate erred in law and in fact in the assessment of damages, the Respondent submitted that the award made by the trial court was properly founded on the evidence tendered. Reliance was placed on Nkuene Dairy Farmers Co-operative Society Ltd v Ngacha Ndeiya [2010] eKLR, wherein the court observed that a claim relating to repair costs is intended to demonstrate the extent of damage suffered and the amount reasonably required to restore the damaged property, as nearly as possible, to its condition prior to the accident. 14.The Respondent further submitted that she adduced sufficient documentary evidence in support of the claim for special damages, including invoices, electronic fund transfer (EFT) vouchers, and other relevant documents. It was contended that the pleaded special damages were strictly proved and that the learned trial magistrate was therefore justified in awarding the sum claimed. 15.Consequently, the Respondent urged this court to find that the appeal is devoid of merit and to uphold the judgment of the trial court in its entirety. C. Issues For Determination 16.Having considered the Memorandum of Appeal, the Record of Appeal, the Judgment of the trial court, and the rival Submissions by the parties, this court is of the view that the following issues arise for determination:-a.Whether the issue of limitation under Section 4(2) of the Limitation of Actions Act is properly before this court or is barred by the doctrine of res judicata.b.Whether the learned trial magistrate erred in finding the Appellant 100% liable for the accident.c.Whether the Respondent strictly proved the special damages awarded in the sum of Kshs. 462,099/=. D. Analysis Of The Issues For Determination Whether the issue of limitation under Section 4(2) of the Limitation of Actions Act is properly before this court 17.This being a first appeal, this court is obligated to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. This principle was settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reaffirmed by the Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424. 18.The Appellant's principal complaint is that the suit was filed outside the three-year limitation period prescribed under Section 4(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya. 19.The record, however, reveals that the issue was not only raised before the trial court but was specifically canvassed through a Preliminary Objection dated 15th February 2024. The parties filed written submissions and the trial court delivered a ruling on 25th March 2024 dismissing the Preliminary Objection. 20.The Appellant neither appealed against that ruling nor sought its review before the trial court. Instead, he proceeded to participate fully in the hearing of the suit until final judgment. Section 7 of the Civil Procedure Act provides:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties..." 21.The doctrine of res judicata applies not only to suits but also to issues conclusively determined within the same proceedings. The Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR emphasized that the doctrine serves the public policy objective that litigation must come to an end and parties should not be vexed twice over the same issue. 22.Similarly, in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others [1996] eKLR, the court observed that once a competent court has determined an issue, the same issue cannot be reopened except through the prescribed appellate process. The court stated that, “That is to say, there must be an end to applications of similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed.” 23.The record demonstrates that the question of limitation was heard and determined by the trial court through the ruling delivered on 25th March 2024. Having failed to challenge that ruling through an appeal or review, the Appellant cannot invite this court to re-determine the very issue as though no ruling existed. 24.This court therefore agrees with the Respondent that the issue of limitation was conclusively determined by the trial court and is no longer available for re-litigation in these proceedings. 25.Consequently, Ground No’s. 1 and 2 of the Memorandum of Appeal fail. Whether the learned trial magistrate erred in finding the Appellant 100% liable for the accident 26.The law is settled that an appellate court will not lightly interfere with a trial court's findings of fact unless such findings are based on no evidence, are founded on a misapprehension of the evidence, or the court is shown to have acted on wrong principles. 27.In Mbogo & Another v Shah [1968] EA 93, the court held that an appellate court should not interfere with findings of fact unless it is satisfied that the trial court was clearly wrong. 28.The Respondent testified as PW1 and stated that while lawfully driving along Thika Road, the Appellant's motor vehicle rammed into hers from behind. 29.PW2, a Police Officer from Ruiru Police Station, produced the Police Abstract and testified that Motor Vehicle Registration Number KBK 799S was blamed for failing to keep a safe distance and consequently collided with the Respondent's motor vehicle from behind. 30.The Appellant contended that the Respondent had suddenly moved into his lane from the second inner lane and thus contributed to the occurrence of the accident. 31.I have carefully re-evaluated the record. Apart from the Appellant's assertion, no independent evidence was tendered to establish contributory negligence on the part of the Respondent. On the contrary, the police evidence attributed blame to the Appellant for failing to keep a safe distance. 32.In rear-end collision cases, courts have consistently held that a driver who collides with a vehicle ahead bears the burden of explaining how the accident occurred notwithstanding the obligation to maintain a safe distance. 33.The Court of Appeal in Lakhamshi v Attorney General [1971] EA 118 observed that where evidence points to one party being responsible for the accident and no credible evidence of contributory negligence is established, liability should attach accordingly.“It is not settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must and the parties equally to blame. I am inclined to think that the position is different. I personally find it difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident. This problem does not arise on the present appeal and it is unnecessary for us to decide it.” 34.Upon re-evaluation of the evidence, I find no basis upon which this court can fault the learned trial magistrate's finding on liability. The finding that the Appellant was wholly liable for the accident was supported by the evidence on record. 35.Accordingly, this ground of appeal equally fails. Whether the Respondent strictly proved the special damages awarded in the sum of Kshs. 462,099/= 36.The record shows that the Respondent specifically pleaded and produced documentary evidence in support of the claims bringing the total to Kshs. 462, 099/=. 37.The Respondent produced invoices, receipts, EFT vouchers, assessment reports, and other supporting documents. 38.The Appellant challenged the courtesy car charges and repair costs. However, the record demonstrates that documentary evidence was tendered in support of those claims and was admitted without objection. 39.The trial court meticulously examined the documentary evidence before arriving at the award. 40.Further, in Nkuene Dairy Farmers Co-operative Society Ltd v Ngacha Ndeiya [2010] eKLR, the court recognized that repair costs and related expenses are recoverable where evidence is tendered showing the amount reasonably required to restore the damaged vehicle to its pre-accident condition. 41.Having independently reviewed the exhibits produced before the trial court, this court is satisfied that the Respondent strictly proved the special damages awarded. 37.The Appellant has therefore failed to demonstrate that the learned magistrate acted on wrong principles, considered irrelevant matters, ignored relevant matters, or arrived at an award unsupported by evidence. 38.This ground of appeal equally fails. Disposition 39.In the end, and having carefully re-evaluated the entire record of appeal, the submissions of counsel, the applicable law, and the authorities cited, this court finds that the appeal is devoid of merit. 40.The court consequently makes the following orders:-a.The Appeal is hereby dismissed in its entirety.b.The Judgment of Hon. Mukami Wachira, Senior Resident Magistrate, delivered on 17th January, 2025, in Thika MCCC No. E216 of 2023, is hereby upheld.c.The Award of Kshs. 462,099/= together with costs and interest as granted by the trial court is hereby affirmed.d.The costs of this Appeal shall be borne by the Appellant. It is so ordered. SIGNED BY/FOR: HON. JUSTICE ABDI M. HASSANTHIKA HIGH COURTHIGH COURT DIV DATE: 2026-07-23 21:20:05