https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9059

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **(MILIMANI LAW COURTS)** **CIVIL APPEAL NO. E472 OF 2024** **JOHN MAKUNDA ALFAYA…………………………………………………APPELLANT** **-VERSUS-** **ELIUD MAINA MWANGI…………………………………………………RESPONDENT** *(Being an appeal from the Judgment of Hon. Caroline K. Ireri, Resident Magistrate and Adjudicator, delivered on 26th March 2024 in Milimani Small Claims Court Civil Case No. E5041 of 2023)* **JUDGMENT** **A. BACKGROUND** 1. This is a first appeal from the Small Claims Court at Milimani. The Appellant was the claimant in Milimani Small Claims Court Civil Case No. E5041 of 2023. His claim arose from a road traffic accident said to have occurred on 13th September 2023 along Outering Road, Nairobi, involving a handcart he was pushing and motor vehicle registration number KCH 369U, owned and driven by the Respondent. 2. The Appellant pleaded that the Respondent so carelessly, recklessly and negligently drove and controlled the said vehicle that he caused it to hit the right wheel of the handcart, thereby occasioning the accident and the injuries he sustained, and he sought general damages, special damages of Kshs. 5,550, costs and interest. 3. The Respondent denied the claim and, by his Response and Counterclaim, averred that if any accident occurred it was occasioned by the negligence of the Appellant and/or the handcart pusher, who, he contended, was pushing the handcart on the wrong side of the road and without a reflector. 4. The Appellant (CW1) testified on his own behalf and, by consent, adopted the evidence of the police officer No. 58516 PC Fairfax Masinde (CW2), who had testified in the related matter SCCC E5043 of 2023 and produced the police abstract, the two claims having arisen from the same accident. The Respondent (RW1) testified as the sole witness in his own defence and produced, among other documents, a sketch map. 5. By a judgment delivered on 26th March 2024, the trial court found the Appellant wholly to blame, held him 100% liable for the accident, declined to assess quantum and dismissed the claim, with each party bearing its own costs. 6. Aggrieved, the Appellant lodged this appeal upon four grounds set out in his Memorandum of Appeal, which in substance fault the learned magistrate for: 7. apportioning 100% liability to the appellant and finding that he was pushing the handcart on the wrong side of the road; 8. failing to appreciate that the handcart was struck on its right wheel as the respondent was overtaking; 9. failing to consider the Appellants evidence, including the medical evidence; and 10. dismissing the claim. **B. THE APPELLANT'S SUBMISSIONS** 1. The Appellant submits that there is no dispute that the accident occurred and that both he and the Respondent were travelling in the same direction. He contends that the very fact that the handcart was struck on its *right* wheel demonstrates that the Respondent came from behind and struck it while attempting to overtake at high speed and without keeping a proper lookout; that the Respondent, being to the rear with a clear and unobstructed view of the road ahead, was in a position to brake, swerve or otherwise control his vehicle and avoid the collision; and that the learned magistrate relied on wrong principles and left out relevant factors in shifting the whole blame to him. 2. He relies on *Morris Mutinda Musyoka v Kihumba Kimani Dominic* (2024); *Yusuf Abdi & another v Abihael Yako & another* [2021] eKLR and the principle in *Davies v Mann* (1842) that a careful driver does not run into every stationary object on his path); and *Mohammed Ishmail v Samuel Macharia & another* [2021] eKLR, for the proposition that a vehicle which rams another from behind is presumed to be at fault unless that presumption is rebutted. 3. On quantum, the Appellant faults the trial court for declining to assess damages notwithstanding its dismissal of the claim, and for failing to consider his evidence, the medical report of Dr. Okere and his written submissions. Relying on *Barnabas v Ombati* (Civil Appeal E43 of 2021) [2022] KEHC 12136 (KLR) and *Stanley Maore v Geoffrey Mwenda* [2004] eKLR, together with *Elizabeth Wamboi Gichoni v Benard Ouma Owuor* [2019], *Musa Were Musakhwe v Silver Style Investment Company Ltd* [2021] eKLR and *Joseph Wahinya v Benson Lucheveleli* [2022], and having regard to inflation, he proposes general damages of Kshs. 200,000 and prays that the appeal be allowed with costs. **C. THE RESPONDENT’S SUBMISSIONS** 1. The Respondent supports the impugned judgment. He submits that this court, as a first appellate court, ought not lightly to interfere with a trial court’s findings of fact unless they are shown to be based on no evidence, founded on a misapprehension of the evidence, or plainly wrong on a matter of principle, relying on *Odera t/a A.J. Odera & Associates v Machira t/a Machira & Co. Advocates* [2013] eKLR and *Kenya Ports Authority v Kuston (Kenya) Limited* [2009] 2 EA 212. 2. He points to what he terms fatal inconsistencies in the Appellant's case: the claim places the accident some 20 metres after Allsops, whereas the police abstract places it at Donholm, a materially different location, and the P3 form bears the date 13th July 2023. Relying on *Atta Kenya Limited v Philip Mwania* [2017] eKLR, he submits that, parties being bound by their pleadings, the appellant failed to prove the date and place of the accident and that the claim ought to fail on that ground alone. 3. On liability, the Respondent submits that CW2 read the occurrence book entry to the effect that the handcart was being pushed on the wrong side of the road and that the handcart pusher, who had escaped from the scene, was to blame; that the Respondent was the only eyewitness and produced a sketch map corroborating that the handcart was on the wrong side; that he has never been charged with any traffic offence; and that no evidence was led to show that he drove negligently. 4. Relying on *Statpack Industries v James Mbithi Munyao* [2005] eKLR, he submits that the Appellant failed to establish the causal link between any alleged negligence and the injuries claimed. 5. He prays that the appeal be dismissed with costs; in the alternative, that liability be apportioned in the ratio of 90:10 against the appellant, and that quantum, if any, be assessed at Kshs. 40,000. **D. ISSUES FOR DETERMINATION** 1. Having considered the record of appeal, the grounds of appeal, and the rival submissions, I am of the view that two issues fall for determination, the question of costs being consequential: 2. ***Whether the learned trial magistrate erred in finding the Appellant wholly (100%) liable for the accident; and*** 3. ***Whether the trial court erred in declining to assess damages and, if so, the quantum properly payable.*** **E. ANALYSIS AND DETERMINATION** 1. As a first appellate court, my duty is to reconsider and re-evaluate the entire evidence on record, weigh it afresh and arrive at my own independent conclusions, while bearing in mind that I neither saw nor heard the witnesses and making due allowance in that regard: ***Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123; *Kenya Ports Authority v Kuston (Kenya) Limited* [2009] 2 EA 212.** 2. That duty must, however, be exercised alongside a measure of restraint where the complaint touches on apportionment of liability, for it is well settled that an appellate court will not interfere with a trial court’s apportionment save where it is demonstrated that the trial court proceeded on a wrong principle or that the apportionment is manifestly erroneous: ***Khambi & Another v Mahithi & Another* [1968] EA 70**. It is against that twin standard that the impugned judgment must be examined. 3. The starting point is that the burden lay on the Appellant, as claimant, to prove on a balance of probabilities both that the accident occurred and that it was occasioned by the Respondent’s negligence as per sections 107 and 108 of the Evidence Act. 4. The Respondent’s most forceful argument is that the Appellant’s case is undermined by inconsistencies as to the place of the accident, “20 metres after Allsops” as against “Donholm” and as to date, the P3 form bearing 13th July 2023, which, on the authority of ***Atta Kenya Limited v Philip Mwania* [2017] eKLR**, ought to defeat the claim. 5. These discrepancies are not imaginary, and a court is entitled to scrutinise them with care. They must, however, be weighed against the evidence as a whole. Unlike *Atta Kenya*, where the fatal inconsistency lay between the plaintiff’s own pleading and his own sworn testimony as to the date of the accident, in the present case the occurrence of the accident, its date, 13th September 2023, the vehicle involved, KCH 369U, and the fact that it involved a handcart are not in genuine dispute. 6. They are confirmed by the Respondent’s own witness statement and oral evidence, in which he admits that on 13th September 2023 he was driving motor vehicle KCH 369U along Outering Road in the Donholm area when he collided with a handcart 7. As to place, both Allsops and Donholm lie along Outering Road, and it is the Respondent’s own evidence that fixes the locus at Donholm; the discrepancy therefore goes to the precision of the Appellant’s pleading, not to the fact of the accident. And the P3 date of 13th July 2023 was explained by the Appellant on cross-examination as a clerical error, an explanation borne out by the police surgeon’s report and the medical report, both of which place his examination in September 2023. The inconsistencies, while regrettable, are not in my view fatal. 8. Closely connected is the Respondent’s reliance on the occurrence book entry, read by CW2, attributing blame to the handcart pusher. The weight of that entry must be kept in proper perspective. It is settled that a police abstract is evidence that an accident was reported, and not proof of who was negligent; negligence must be established independently of the abstract: ***Peter Kanithi Kimunyu v Aden Guyo Haro* [2014] eKLR; *Techard Steam & Power Limited v Mutio Muli & Mutua Ngao* [2019] eKLR**. Here, CW2 candidly admitted that he was not the investigating officer; that he was unable to ascertain the circumstances that led to the accident; that he could not confirm whether any sketch map of the scene had been taken; and that the abstract itself recorded the matter as “pending under investigation.” 9. The entry blaming the pusher was, on CW2’s own evidence, drawn from what members of the public said of a person who had fled the scene and was never identified. Such untested, second-hand material could not, without more, discharge the Respondent’s burden of proving contributory negligence, much less establish that the Appellant was wholly to blame. With respect, the trial court gave that entry an evidential weight it could not properly bear. 10. Turning to the manner in which the accident occurred, the court is confronted by two competing and largely uncorroborated narratives. The Appellant’s case is that traffic was moving in one direction; that the Respondent’s vehicle came from behind and struck the handcart on its right wheel as it overtook; and that the Respondent, with a clear view of the road ahead, ought to have avoided the collision. 11. The Respondent’s case is that a matatu ahead of him stopped abruptly; that he swerved to avoid it; and that, in so doing, he met the handcart being pushed on the wrong side, struck its tyre, and his vehicle overturned. 12. The Appellant called no independent eyewitness to the collision; the Respondent, though he produced a sketch map, was himself an interested party and the author of that sketch. The Respondent’s own narrative, however, is double-edged. A driver who, on his own account, was unable to keep his vehicle under control when a vehicle ahead of him stopped, to the extent of swerving into a handcart and overturning, raises a serious question as to whether he was maintaining a safe distance and a proper lookout, and whether he was travelling at a speed appropriate to a busy road at about 7.45 p.m. 13. The undisputed fact that the impact fell on the right wheel of the handcart is, moreover, more consistent with a vehicle approaching from behind or the side than with a head-on encounter, and lends a measure of support to the Appellant’s version. 14. The law absolves neither party from the duty of care. A driver in control of a motor vehicle, a machine capable of causing great harm if negligently managed, bears a heightened duty to keep a proper lookout for, and to avoid, more vulnerable road users. **See: *Isabella Wanjiru Karanja v Washington Malele* [1983] KLR 142**. 15. Equally, a pedestrian owes a duty to take reasonable care for his own safety and to observe the Highway Code. See: ***Patrick Mutie Kimau & Another v Judy Wambui Ndurumo* [1997] eKLR**. 16. On the evidence, the Appellant did not specifically controvert the assertion that the handcart was on the wrong side of the road, and he admitted that he wore no reflector at a time of failing light. Those were real failings which exposed him to danger and contributed to the accident. They did not, however, relieve the Respondent of his own duty to drive with care, to anticipate the presence of other road users, and to keep his vehicle under proper control. 17. A finding of 100% liability against a non-motorised road user can only stand where it is clearly established that the driver was wholly without fault and the trial court made no such finding, nor could it on this record, having undertaken no real assessment of the respondent's own conduct against the standard of a careful and prudent driver. 18. Where, as here, the evidence on either side is uncorroborated, partly self-serving, and not capable of yielding a confident finding that one party alone was to blame, the proper course is not to visit the entire blame on one party but to apportion liability between them. 19. The Court of Appeal has held that where it is not reasonably possible, on the evidence, to determine who is to blame for an accident, both parties should be held equally to blame: *Hussein Omar Farah v Lento Agencies* [2006] KLR; *“****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 equally to blame.”*** 1. Also see ***Kenya Bus Services Ltd v Gladys Okwoma* [1972] EA.** 2. In my respectful view, by laying the whole blame on the Appellant on the strength of an inconclusive occurrence book entry and the Respondent’s untested account, while leaving the Respondent’s own duty of care entirely unexamined, the learned trial magistrate proceeded on a wrong principle and arrived at an apportionment that is manifestly erroneous within the meaning of ***Khambi v Mahithi* (supra).** 3. Re-evaluating the evidence afresh, and weighing the Respondent’s failure to keep a proper lookout and proper control of his vehicle against the Appellant’s want of care in the positioning of the handcart and the absence of a reflector, I find that liability ought properly to be apportioned equally, in the ratio of 50:50. The first issue is answered in the affirmative, and the appeal succeeds on liability to that extent. 4. On the second issue, the trial court, having dismissed the claim, declined to assess quantum at all. That was an error. It is now firmly settled that a court of first instance must assess the damages it would have awarded even where it dismisses the claim, so that the appellate court is not left without the benefit of that assessment: ***Frida Agwanda & Ezekiel Onduru Okech v Titus Kagichu Mbugua* [2015] eKLR; *Lei Masaku v Kalpama Builders Ltd* [2014] eKLR**. 5. Rather than remit the matter, and for expedition, this court will assess the damages itself on the record. 6. In assessing general damages, comparable injuries should as far as possible attract comparable awards, regard being had to the trend of recent awards and the effect of inflation: ***Stanley Maore v Geoffrey Mwenda* [2004] eKLR.** The medical evidence establishes that the Appellant sustained bruises on the scalp and a swollen and bruised right knee, soft tissue injuries, without fracture, which had largely resolved by the time of his examination. 7. The authorities relied on by the Appellant in the range of Kshs. 175,000 to Kshs. 200,000 concerned somewhat more extensive injuries, while those cited by the Respondent in the range of Kshs. 40,000 to Kshs. 70,000 are comparatively dated. 8. Doing the best I can on the comparable awards and allowing for inflation, I assess general damages for pain, suffering and loss of amenities at Kshs. 100,000. The special damages of Kshs. 5,550, comprising the medical report fee and the motor vehicle search fee, were specifically pleaded and strictly proved, and are allowed. The total award is therefore Kshs. 105,550, which, after deduction of the Appellant’s 50% contribution, yields a net award of Kshs. 52,775 in his favour. **F. DISPOSITION AND ORDERS** 1. In the result, and for the reasons given, the appeal substantially succeeds. I make the following orders: 2. The judgment and decree of the Small Claims Court delivered on 26th March 2024 in Milimani SCCC No. E5041 of 2023, finding the Appellant 100% liable and dismissing the claim, are hereby set aside. 3. Liability for the accident is apportioned between the parties in the ratio of 50:50, the Respondent being 50% to blame and the appellant 50% to blame. 4. General damages are assessed at Kshs. 100,000 and special damages at Kshs. 5,550, making a total of Kshs. 105,550, which sum, after deduction of the Appellant’s 50% contribution, yields a net award of Kshs. 52,775 payable by the Respondent to the Appellant. 5. The net award shall carry interest on general damages at court rates from the date of the lower courts judgment, and on special damages at court rates from the date of filing of the claim until payment in full. 6. Each party shall bear its own cost of this appeal. It is so ordered. **Dated and Delivered at Nairobi this 25th day of June 2026.** **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** *Delivered on virtual platform in the presence of:* *Tirop h/b Andego for Appellants* *Ndambuki h/h for Koech for Respondents* *Kevin Babu - Court Assistant*