https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11064

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT KIAMBU** **CIVIL APPEAL NO. E199 OF 2022** **JOSEPH KARUGU KABIRA..………………………………..……………...…………..APPELLANT** **VERSUS** **JAMES WAGURA GITHINJI……………………...………………..…………...……RESPONDENT** **JUDGMENT** 1. **Background** 2. This appeal arises from the Judgment of Hon. I. F. Koome (Senior Resident Magistrate) delivered on 17th August 2022 in *Limuru MCCC No. 175 of 2018, Joseph Karugu Kabira v James Wagura Githinji.* 3. In the impugned judgment, the trial court found the Respondent primarily liable for the accident and apportioned liability in the ratio of 70:30 in favour of the Appellant. The court proceeded to award the Appellant Kshs. 700,000/= as general damages for pain, suffering and loss of amenities, Kshs. 80,000/= for future medical expenses, and Kshs. 96,820/= as special damages, bringing the total award to Kshs. 876,820/=. Upon application of the contributory negligence ratio of 30% against the Appellant, the decretal sum was reduced to Kshs. 613,774/=. The trial court also awarded costs and interest. 4. Aggrieved by the finding on liability, the Appellant lodged the present appeal and advanced the following grounds: 1. *That the learned trial magistrate erred in law and in fact in failing to adequately consider, or at all, the Appellant’s submissions and the authorities cited in support thereof.* 2. *That the learned trial magistrate erred in law and in fact in apportioning liability in the ratio of 70:30 in favour of the Appellant against the Respondent in the absence of evidence supporting such a finding.* 3. *That the learned trial magistrate erred in law and in fact by failing to properly consider the issues falling for determination, thereby arriving at a decision founded on erroneous principles of law.* 4. *That the learned trial magistrate erred in law and in fact in the manner in which he evaluated and weighed the evidence adduced before the court on the issue of liability.* 5. **Parties’ Submissions** 6. The appeal was canvassed by way of written submissions. 7. The Appellant submitted that he was travelling as a pillion passenger when he fell onto the tarmac and was run over by the Respondent’s motor vehicle. He contended that the accident was wholly occasioned by the negligence of the Respondent and that, in the circumstances, there was no basis upon which contributory negligence could be attributed to him. 8. The Appellant further submitted that although the Respondent was represented by counsel before the trial court, he neither filed a defence nor adduced any evidence in rebuttal of the Appellant’s case. It was therefore argued that the evidence on liability remained wholly uncontroverted and that the trial court erred in apportioning liability at the ratio of 70:30 in the absence of any evidence demonstrating negligence on the part of the Appellant. The Appellant consequently urged this Court to set aside the finding on contributory negligence and substitute it with a finding of 100% liability against the Respondent. 9. Despite being afforded several opportunities to do so, the Respondent did not file any written submissions in response to the appeal. When the matter came up for mention to confirm compliance with the Court’s directions, it was noted that the Respondent had not complied. As at the time of writing this judgment, no submissions had been filed on behalf of the Respondent. 10. **Issues for Determination** 11. Having carefully considered the Memorandum of Appeal, the judgment of the trial court, the record of appeal, and the submissions filed by the Appellant, it is apparent that all the grounds of appeal revolve around a single question, namely whether the learned trial magistrate properly assessed the evidence and correctly apportioned liability between the parties. 12. Accordingly, in the Court’s view, the sole issue falling for determination in this appeal is: 1. *Whether the learned trial magistrate erred in law and in fact in apportioning liability in the ratio of 70:30 in favour of the Appellant against the Respondent, and whether this Court ought to interfere with that finding.* 13. **Analysis and Determination** 14. ***Whether the learned trial magistrate erred in law and in fact in apportioning liability in the ratio of 70:30 in favour of the Appellant against the Respondent, and whether this Court ought to interfere with that finding.*** 15. In addressing the issue of liability, it is necessary to first consider the findings made by the trial court. At paragraph 19 of the impugned judgment, the learned trial magistrate expressed himself as follows: *This Court has referred to a number of cases. The most applicable in the circumstances of this case is Kiambu High Court Appeal No. 92 of 2016 (unreported) Kanyariri & Another v Dominic Gitau where the court apportioned liability to an unidentified party who was not a party to the suit. I accordingly apportion liability such that the Defendant in this suit is held 70% liable while the driver of KUG 344, though not a party to this suit, is to bear 30%.* 1. However, in the dispositive part of the judgment at paragraph 27, the trial court proceeded to state as follows: *Liability at the ratio of 70%:30% in favour of the Plaintiff against the Defendant.* 1. A plain reading of the foregoing portions of the judgment reveals an apparent inconsistency. Whereas paragraph 19 attributes 30% liability to the driver of motor vehicle registration number KUG 344, who was not a party to the proceedings, paragraph 27 appears to apportion liability as between the Plaintiff and the Defendant. To that extent, the judgment bears a patent ambiguity on the issue of liability. 2. In my view, such inconsistency is in the nature of an error apparent on the face of the record and could properly have been addressed through an application for review before the trial court. Nevertheless, this Court cannot lose sight of the fact that the present appeal squarely challenges the trial court’s determination on liability. Further, as a first appellate court, this Court is under a duty to re-evaluate the evidence on record, draw its own independent conclusions, and determine whether the impugned finding can be sustained in law and on the evidence. 3. Accordingly, notwithstanding the apparent inconsistency in the trial court’s judgment, I consider it necessary to examine the evidence afresh and determine whether the apportionment of liability was justified in the circumstances of this case. 4. The Court of Appeal in ***Alfarus Muli v Lucy M. Lavuta & Another [1997] KECA 302 (KLR)*** observed that the apportionment of liability is an exercise of judicial discretion to be undertaken on the basis of the evidence placed before the court. 5. The Appellant's principal grievance is that the trial court apportioned liability despite there being no evidence on record to support such apportionment. The Appellant maintains that his evidence on the circumstances of the accident remained uncontroverted, the Respondent having neither filed a statement of defence nor tendered any evidence at the trial. 6. The record indeed shows that although the Respondent participated in the proceedings through counsel, no defence was filed and no witness was called on his behalf. Consequently, the only evidence before the trial court regarding the occurrence of the accident and the circumstances leading thereto was that adduced by the Appellant. 7. It is nevertheless settled law that the mere absence of rebuttal evidence does not automatically entitle a plaintiff to judgment. The burden of proof remains throughout upon the party who asserts a fact, and such party must establish his case on a balance of probabilities. The Court must therefore interrogate the evidence tendered by the Appellant to determine whether it was sufficient to establish negligence against the Respondent and whether there existed any basis for the apportionment of liability undertaken by the trial court. 8. I am persuaded by the decision in ***Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] KEHC 1362 (KLR),*** wherein Mulwa J opined as follows: *I am of the considered view that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its c[sic] too upon a balance of probability whether the evidence in unchallenged or not.* 1. Further, the Court of Appeal in ***Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR),*** where it was held that the suggestion that, in all civil cases, failure by a defendant to adduce evidence automatically entitles the plaintiff to judgment on a balance of probabilities is not correct. The Court clarified that before a trial court can properly conclude that a plaintiff’s case is proved on a balance of probabilities by reason of failure to call evidence, it must first be satisfied that the plaintiff has adduced credible and believable evidence capable of standing even in the absence of rebuttal. 2. In ***Kamanduu Kaumba & Another v Kingsway Motors [2020] eKLR,*** the Court held as follows: ***It is important to go back to the burden of proof as defined above, and in the circumstances, the court would not expect the Appellant to be at 100% proof in order to meet the burden of proof. What amounts to proof on a balance of probability is what Kimaru J stated in William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR 526:*** ***Ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is more probable than not, that the allegations he made occurred.*** 1. A finding on liability is dependent on the facts and evidence available and in assessing liability, the court considers causation and blameworthiness ***(See Isabella Wanjiru Karanja v Washington Malele [1983] eKLR)*** 2. The Court has considered the record and is satisfied that an accident indeed occurred on 19th March 2018. PW1, while relying on the Occurrence Book (OB), testified that the accident involved motorcycle registration number KMCN 989S, motor vehicle registration number KUG 344 driven by one James Kinuthia, and motor vehicle registration number KBA 961Y. It is noteworthy that neither the driver nor the owner of motor vehicle registration number KUG 344 was joined as a party to the proceedings before the trial court. 3. PW1 further testified that motor vehicle registration number KUG 344 was joining the main road at Slaughter Area and failed to give way to the motorcycle carrying the Appellant, thereby colliding with it from behind. According to PW1, upon impact, the Appellant, who was a pillion passenger, was thrown towards the direction of the Respondent’s motor vehicle registration number KBA 961Y and was subsequently run over. However, it is significant that motor vehicle registration number KUG 344 was not reflected in the police abstract produced before the trial court. 4. On the other hand, PW2, being the Appellant, gave a different account of the occurrence of the accident. He testified that he was travelling as a pillion passenger when the rider of the motorcycle applied emergency brakes after observing another vehicle. He stated that he fell onto the road but did not sustain injuries until he was subsequently hit by the Nissan matatu registration number KBA 961Y. 5. The Court is therefore confronted with two accounts on the circumstances leading to the accident. Whereas PW1 attributed the accident to the negligence of the driver of motor vehicle registration number KUG 344, PW2’s testimony placed the Respondent’s vehicle directly at the point of impact. The Court must therefore determine, on a balance of probabilities, which account is more consistent with the evidence on record. 6. It is trite that in civil proceedings, the burden of proof is discharged on a balance of probabilities. The Court is not required to achieve absolute certainty, but must determine which version of events is more probable in light of the evidence presented. As stated in ***Kamanduu Kaumba & Another v Kingsway Motors [2020] eKLR***, a party succeeds where it demonstrates that its version of events is more probable than not. 7. In reconciling the two accounts, I note that both versions place motor vehicle registration number KBA 961Y at the scene and connect it with the injuries sustained by the Appellant. However, the evidence on record also raises doubt as to whether the entire blame can properly be placed on the Respondent alone, considering PW1’s evidence implicating motor vehicle registration number KUG 344 and the fact that the said vehicle was not joined as a party to the proceedings. 8. This Court must also consider the evidential weight to be attached to PW1’s testimony regarding the involvement of motor vehicle registration number KUG 344. Although PW1 relied on the Occurrence Book in stating that the said motor vehicle was involved in the accident, the Occurrence Book itself was not produced before the trial court. Further, PW1 was not the investigating officer and therefore did not have firsthand knowledge of the circumstances under which the accident was investigated or how liability was assessed. 9. Of particular significance is that motor vehicle registration number KUG 344, which PW1 alleged contributed to the accident, was not reflected in the police abstract produced before the court and neither its owner nor driver was joined as a party to the proceedings. While these circumstances do not, in themselves, conclusively disprove its involvement, they create uncertainty as to the extent of its contribution to the accident. 10. On the other hand, the Appellant’s own testimony placed motor vehicle registration number KBA 961Y at the scene and attributed his injuries to the said vehicle after he fell onto the road. 11. In dealing with the alleged contradiction between the testimonies of PW1 and PW2, I am persuaded by the decision of the Court of Appeal of Nigeria in ***David Ojeabuo v Federal Republic of Nigeria*,** where the Court, in defining contradictions, stated as follows: ***Contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts, while a discrepancy occurs where a piece of evidence stops short or contains a little more than what the other piece of evidence says or contains.*** 1. Applying the foregoing principle, I do not find that the evidence of PW1 and PW2 was necessarily contradictory in material particulars. While PW1 attributed the initial collision to motor vehicle registration number KUG 344, PW2 testified that the motorcycle applied emergency brakes causing him to fall onto the road before he was hit by motor vehicle registration number KBA 961Y. The two accounts, although differing on the sequence of events, are not wholly inconsistent as both place the Appellant on the road immediately before the impact with the Respondent’s vehicle. 2. In determining whether the Respondent’s vehicle was causally connected to the injuries sustained by the Appellant, this Court applies the “but for” test of causation; that is, whether the injuries would have occurred but for the negligent act or omission alleged against the Respondent. The question is whether the Respondent’s vehicle was a necessary factor in bringing about the injuries complained of.***(See Rotich v Mutai [2022] KEHC 14134 (KLR))s*** 3. The test often employed on negligent conduct is clearly spelt out in ***Joan Clements, by her litigation guardian, Donna Jardine v Joseph Clements [2012] 2 RCS, 181, at page 187, paragraphs 8-10, McLachlin C J*** provided a comprehensive analysis of the nature and application of the ‘but for’ test. He stated as follows: ***… the test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. The “but for” causation test must be applied in a robust common-sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Wilsher v Essex Area Health Authority, [1988] AC 1074 (H L), at p 1090, per Lord Bridge; Snell v Farrell, [1990] 2 SCR 311. A common-sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, ie that the negligence was not a necessary cause of the injury, which was, in any event, inevitable.*** 1. From the evidence on record, I am satisfied that the Respondent’s motor vehicle formed part of the chain of events that resulted in the accident and the injuries sustained by the Appellant. However, as earlier observed, there were other intervening circumstances, whether the involvement of motor vehicle registration number KUG 344 or the motorcycle rider’s application of emergency brakes, which contributed to the Appellant being thrown onto the road. In the circumstances, I cannot attribute the entire responsibility for the accident to the Respondent. I therefore uphold the trial court’s finding on liability and affirm the apportionment of liability at 70% against the Respondent. 2. Having found on liability, I will not delve into the issue of quantum as the same is not a subject of challenge before this Court. Accordingly, I uphold the trial court’s finding on quantum. It is so ordered. Dated, signed and delivered virtually in court at Malindi this 20th day of July 2026 ………………………….. C.KASSIM JUDGE In the presence Driscillah-Court Assistant NA for Appellant NA for Respondent