https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9755

Mwee v Mutuku (Civil Appeal E095 of 2024) [2026] KEHC 9755 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9755 (KLR) Republic of Kenya In the High Court at Malindi Civil Appeal E095 of 2024 BK Njoroge, J July 2, 2026 Between John Wambua Mwee Appellant and Peter Muuo Mutuku Respondent (Being an Appeal from the entire Judgment and Order of the Honourable S.D Sitati (SRM) delivered on the 22nd of July, 2024, in the Principal Magistrate’s Court at Kilifi CMCC No. E237 of 2023) Judgment 1.This is an Appeal arising out of Judgment in a running down claim. The Appellant challenges the Judgment and Decree of Honourable S.D Sitati (SRM) delivered on the 22nd day of July 2024 in Kilifi. This is regarding the suit filed in Principal Magistrate’s Court at Kilifi in CMCC No. E237 of 2023. 2.The Appeal is both on the issue of liability and quantum. There is a series of files relating to this Appeal, namely E089 of 2024; E 090 of 2024 and E093 of 2024. Though the Court has not seen an order of consolidation of these Appeals, the Court is aware and reminds itself that a decision of liability in one of them affects the outcome of all the other Appeals. Background Facts 3.The Appellant was the unsuccessful Plaintiff before the Lower Court, while the Respondent was the Defendant. By a Plaint dated 13/4/2023, the Appellant sued the Defendant for personal injuries arising out of a traffic accident. The accident is said to have occurred on 19/3/2023 and the Appellant was travelling as a fare paying passenger. 4.The Respondent’s lawful driver/agent is said to have driven the Respondent’s motor vehicle recklessly and or carelessly. He lost control, veering of the road and falling down (sic) as consequence of which the Appellant sustained injuries. 5.The Appellant pleaded the following particulars of negligence on the part of the Defendant’s agent/driver;i.Driving the motor vehicle registration number KDE 820B Nissan Matatu while over speeding along a busy road.ii.Driving the motor vehicle registration number KDE 820B Nissan Matatu without due care and attention for the plaintiff being a fare paying passenger.iii.Failing to manage and or control the motor vehicle registration number KDE 820B Nissan Matatu thereby veering off the road and falling down.iv.Failing to apply brakes in sufficient time to avoid causing the accident.v.Failing to steer the motor vehicle registration number KDE 820B Nissan Matatu in a clear and proper course.vi.Failing to observe the road signs.vii.Failing to service the safety belts of motor vehicle registration number KDE 820B Nissan Matatu.viii.Driving a defective motor vehicle registration number KDE Nissan Matatu. 6.The Respondent pleaded that he sustained the following injuries; -Cut and laceration right parietal/occipital area of the scalp -Blunt trauma to the right shoulder. 7.The Appellant claimed special damages as follows;i.P3 Form Kshs 2,000ii.Medical Treatment Kshs 3,000iii.Medical Report Kshs 2,000Total Kshs 7,000 8.The Appellant thus, sought the following reliefs against the Defendant;a.General Damages for pain and suffering;b.Special Damagesc.Costs and interests. 9.The Respondent duly entered an appearance and filed a Statement of Defence denying the accident and the injuries stated. He attributed the accident if any to negligence on the part of the Appellant and sought contribution from him as followsParticular of Negligence and Contribution of the Plaintiffi.Failing to take any or any adequate precautions for safety.ii.Failing to heed the instructions on safety precautions like wearing a seatbelt when travelling.iii.Voluntarily assuming risk of an accident occurring while aboard the said Motor Vehicle.iv.Failing to raise alarm, when the said Motor Vehicle was being driven negligently and alighting because of the same.v.Volent non fit injuria. 10.Thereafter, the suit proceeded for hearing whereby the Appellant testified and called witnesses. 11.The Trial Court was not persuaded that the Appellant had proved his case. It proceeded to dismiss the suit with costs. This is what has triggered this Appeal. Issues for Determination 12.The Appellant has taken note of the Record of Appeal, the Memorandum of Appeal hereof and the submissions filed by the parties’ Advocates. The Court frames two (2) issues for determination as follows;a.Whether the Trial Court erred in finding that liability was not proved against the Respondent.b.Whether the Appellant is entitled to the reliefs sought in the Appeal. Analysis 13.The Appellant seeks the following reliefs in the Appeal;i.Allow the Appeal and set aside the Judgment and subsequent decree issued on 22nd July, 2024.ii.The Appellant be awarded the costs of this Appeal. 14.This is a first Appeal. This Court is under a duty to re-evaluate and re-analyze afresh the evidence adduced before the Trial Court and draw its own independent conclusions. In doing so, the Court must bear in mind that the Trial Court had the advantage of seeing and hearing the witnesses firsthand — see Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123. Whether the Trial Court erred in finding that liability was not proved against the Respondent. 15.The Court has duty to review the evidence and arrive at the same or different decision. The decision herein is this Court’s own conclusion, after a review of the evidence. The Court warns itself that it neither heard nor saw the witnesses. 16.The Trial Court reviewed the evidence of the eye witness PW2. He was in the subject motor vehicle. He led insufficient evidence to establish negligence on the part of the Defendant or his driver. His evidence in the Witness Statement was that the Respondent’s driver caused the accident. That he failed to manage or control the motor vehicle thus causing it to veer off the road and fall down (sic). In cross examination he maintained that a motor cycle emerged suddenly but the motor vehicle was speeding. 17.This Court reiterates that this Appeal is in a series. PWI. PC David Wafula Awuori gave evidence on the basis of the police report. That one Cosmas Amani Wanje was driving the Motor Vehicle from Kilifi to Mombasa. That he swerved right to avoid an unknown motor cycle from a feeder road and lost control. He rolled to the right side of the road. In re-examination he stated that the matatu driver could control the matatu had he been driving at moderate and reasonable speed. 18.The Court notes that the duty to prove the case and especially the issue of negligence and hence liability always lay at the door step of the Appellant. There was no evidence or eye witness testimony as to which speed the Matatu was being driven. Even PW2 who was an eye witness and a passenger did not lead any evidence as to the speed of the matatu at the time of the accident. It is not enough to state that the matatu was speeding. A vehicle could be speeding but within the speed limit of a particular place, say 50kmph through a township like Rongai. However, on a busy drizzling market day, that speed of 45kmph though below the speed limit, could be said to be high due to the circumstances prevailing that day. That would be huge human traffic and presence along the road and slippery conditions. Speed is subjective and dependent on circumstances. It is therefore not enough to state a driver is speeding. More was required. 19.The evidence led was so thin as to hold the Defendant liable in negligence, on a balance of probabilities. No report on investigations carried out by the Police was produced. There is no sketch plan. It matters not that the Respondent called no evidence. 20.It is not enough to testify that the Matatu rolled. The Appellant had a duty to prove that the rolling was occasioned by the negligent driving of the matatu driver. 21.In this particular case, the evidence led by the Appellant through the Police witness was that the driver of the matatu was evading an accident. That a motor cycle had suddenly joined the road, from a feeder. That would be a natural reaction to avoid or avert an accident. That cannot be said to be a negligent act on the driver’s part in absence of further facts. The sudden emergence theory would still be a good defence in a Court of law. The negligent act would be to drive at high or reckless speeds or failing to keep distance or keep a look out taking into consideration the circumstances and conditions prevailing. No evidence was led to that effect. The Police Officer was not an eye witness and he led no evidence of such high speed e.g. presence of skid marks on the road etc. The evidence of the Appellant did not prove liability on a balance of probabilities. It matters not that the Respondent led no evidence. 22.The Court refers to Peters -vs- Sunday Post [1958] EA 424 pg 429 the court stated: -“It is a strong thing for an Appellate court to differ from the finding, on a question of fact, of a Judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence……to determine whether the conclusion originally reached upon it should stand. But this is a jurisdiction which should be exercised with caution: It is not enough that the appellate court might itself have come to a different conclusion.” 23.There can be no liability without a fault. The duty to prove liability at the initial stage lay with the Appellant. The Respondent could only seek to shift this burden of proof once it had been placed upon him. The Court follows the decision of E. Muriithi J in Kendi & another (suing as the legal representatives of the estate of Duncan Mwenda (deceased) v Japheth Iringo [2022] KEHC 12793 (KLR). The Court stated as follows;“ 24.In the instant case there was no eye witness to shed light on how the accident occurred. The police abstract on record showed that the accident was under investigation. The accident involved a motor cycle and a motor vehicle and from the evidence nothing attributes liability to the respondent. There cannot be an assumption of liability as the plaintiff failed to prove facts which give rise to what may be called res ipsa loquitor situation. This court agrees with the trial court that the evidence adduced by the plaintiff was scanty and no explanation were made as to why the motor cycle rider was not called to shed light on what had transpired on the night the accident took place. 25.As can be deduced from all the cited authorities the key issue is for the plaintiff to prove his case. It is not enough to allege as done by the appellant herein and expect the court to agree with you. As expected under section 107 and 108 of the Evidence Act, the burden squarely is upon the appellant. The traffic police officer PW1 ought to have clarified how the accident may have happened by producing the sketch maps of the scene and any other relevant evidence. 26.It is very unfortunate that this case must fail, and the appellant has this court’s sympathy. However, the trial court acted judiciously and this court does not find any reason to fault the trial court findings on this question of negligence.” b.Whether the Appellant is entitled to the reliefs sought in the Appeal. 24.In absence of proof of liability, the Trial Court was correct in declining to award damages. 25.On costs, the same ordinarily follow the event. They are awarded at discretion. There exist no good reasons to deny the Respondent the costs of this Appeal. 26.The Court sympathises with the Appellant but reaches the same conclusion as the Trial Court. Determination 27.The Appeal herein is hereby dismissed in its entirety for lack of merits. 28.The costs of the Appeal are awarded to the Respondent. 29.It is so ordered. DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026NJOROGE BENJAMIN K.JUDGEIn the presence of:Miss Nanjali for the Appellant.N/A for KRK for the RespondentMr. John Paul - Court Assistant