https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11214

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS COUNTY COURT NAME: MACHAKOS HIGH COURT CASE NUMBER: HCCA/E045/2025 ROBERT MATHEKA KAVAVU VS TERESIA NZISA MULI JUDGMENT The appellant, being dissatisfied with the judgment of the Honourable S.A. Opande, (Principal Magistrate) in the above mentioned suit, appeals to the High Court of Kenya at Machakos against the said judgment on the following grounds: - 1. That the Learned Trial Magistrate erred in apportioning liability of 70% against the Appellant for the accident yet the Appellant’s vehicle was hit on the rear. 2. That the Learned Trial Magistrate erred in apportioning liability of 70% against the Appellant even though the Respondent's case was manifestly false and full of contradictions. 3. That the Learned Trial Magistrate erred in law and fact in holding the Appellant 100% liable for the accident when no negligence had been proved on his part which finding was untenable. 4. That the Learned Trial Magistrate erred in fact and in law by failing to give more credence to the Appellant's version of events despite the wanting credibility of the Respondent's testimony which she gave under oath whilst being coached. 5. That the Learned Trial Magistrate erred in fact cud in law in finding the Appellant 70% liable by the mere reason that he failed to take out 3" party proceedings despite the fact that there was no evidence to link the Appellant with the particulars of negligence pleaded in the plaint. 1. That the Learned Trial Magistrate exhibited open bias in favour of the Respondent by apportioning 70% liability against the Appellant without any basis. 2. That the Learned Trial Magistrate erred in law and fact in disregarding the Appellant's submissions on record thereby arriving at a finding on liability that was untenable. Brief facts The plaintiff/ respondent filed this suit through a Plaint dated 5th October, 2022, and filed in court on 6th October, 2022 against the appellant/defendant. The plaintiff’s case is that on 16th June, 2022 at about 5.00pm along Kangundo-Tala road at Tala Market area, the defendant’s driver and/or agent so carelessly drove motor vehicle registration number KBW 244W Nisan S. Wagon such that it lost control and rammed into the rear of motorcycle registration number KMFPY 479E which was ahead of him moving in the same direction leading to the pillion passenger (plaintiff) sustaining serious injuries. The particulars of the injuries are: 1. Fracture of the Limbar spine 2. Fractured upper incisor tooth 3. Loose lower incisor teeth 4. Bruises on the face. The Plaintiff moved this court seeking the following reliefs from the court against the Defendant; 1. Special damages of Ksh. 8, 350 2. General damages for pain, suffering and loss of amenities 3. Cost of future medical treatment 4. Costs of the suit Interest on (a), (b), (c) and (d) above. 5. Any other relief this court may deem fit and just to grant In response, the Defendant entered appearance vide his Memorandum of Appearance dated 28th November, 2022, and later filed a Statement of Defence dated 28th November, 2022. The hearing of this suit proceeded on 31st October, 2024. On 12th February, 2025 the court delivered judgement as follows: 1. The defendant was held liable 70% for the accident. 2. General damages awarded of kshs 400,000 less 30% for contributory negligence. 3. Special damages of kshs 8,350 4. Each party to bear its own costs. The appellant/ defendant lodged this appeal seeking for the judgement of the trial court on liability be set aside. The plaintiff called two witnesses: PW1 CPL Onesmus Mutuku (investigating officer): Confirmed the collision. Damage was on the rear left of the Appellant’s vehicle and the front of the motorcycle. The Appellant’s vehicle had overtaken the motorcycle and was curving left into a junction. The abstract was marked “Pending Under Investigation.” The rider had no licence and refused to record a statement. In cross-examination, he confirmed the road was straight with two lanes and the damage locations. PW2 Teresia Nzisa Muli (Respondent): Adopted her statement. She claimed the Appellant’s vehicle attempted to overtake but did not complete it, came back behind the motorcycle, and hit it from the rear. She alleged the Appellant was careless. During virtual cross- examination, the trial court noted concerns that she was being coached (a person was seen beside her after the court insisted she move the camera). Her demeanour was recorded as forming part of the evaluation of her evidence. In re-examination, she told the court that, the driver had not finished overtaking, and he realized he wouldn't make. The rider and the driver both took her to the hospital. The vehicle hit her. That the junction was close to where the vehicle was overtaking. On the defence case, one witness was called: DW1 Robert Matheka Kavavu (Appellant): Adopted his statement. He stated that he completed the overtaking, moved ahead a few metres, put on his left indicator, slowed down to turn left at the junction, and was then hit on the rear left by the motorcycle. He was driving at about 50 kph, gave a signal, and had no pre-accident defects on his vehicle (confirmed by inspection). He was alone in the car. Appellant submissions The appellant submits that in the trial court that the Appellant was not at fault for causing the accident. PW1 PC Mutuku’s testimony affirms that the rider of the motorcycle was riding behind the Appellant’s car at the time leading up to the impact. The Appellant therefore did not knock the motor cycle. It was the other way round ie. the rider hit the Appellant’s vehicle. The Appellant confirmed in his testimony that he made a successful overtake of the motorcycle and that he was driving slow as he turned on his indicator and made a left turn at the junction when the rider knocked his left rear side. This evidence has been corroborated by the investigating officer who testified that the Appellant’s car completed overtaking the motorcycle and proceeded to turn left. The blame rests squarely on the rider of the motorcycle and the respondent should also be held contributorily negligent for willingly boarding the motorbike that was ridden recklessly. They submit that it was the duty of the rider to ride cautiously with due regard to the vehicle in front of him. The evidence shows that both the motorbike rider and the respondent saw the Appellant’s vehicle ahead of them slowing down and making a left turn. It was incumbent upon the rider to follow suit and slow down and only proceed on after ensuring that it was safe to do so. They rely on the case of Multiple Hauliers E.A Ltd v Justus Mutua Malundu & 2 others [2017] eKLR where the court held that: “The bus driver did not contest the fact that the collision was by his bus hitting the rear of the lorry. From whichever side the lorry was hit, the fact remains that it was on its rear. In Samuel Stephen Were vs Sukari Industries Ltd [2018] eKLR Majanja J had this to say in circumstances similar to those obtaining in this case. “I find and hold that the evidence, taken as a whole, point to the fact that the tractor was being driven behind the motorbike at a high speed when it lost control and hit the motor bike ahead of it. Since the motor bike was hit from behind, it would have been very difficult, if not impossible, for the deceased to avoid the accident”. That clearly sits in consonance with the presumption that he who hits another from behind is IPSO FACTO negligent.” They urge the court to take notice of the testimony of the investigating officer who explicitly confirmed the damage on the Appellant's car to be on the rear left side and the damage on the motorbike to be on the front. On contradictions in the Respondent/Plaintiff’s Case: they contend that the respondent’s claim is heavily inconsistent with the evidence on record. The contradictions are as follows: - The respondent testified that the Appellant's car attempted to overtake the motorcycle but did not complete the pass and the car returned back to position itself behind the motorcycle on the same lane. PW1 PC Mutuku on the other hand stated that as per the investigations, the Appellant’s car successfully completed the overtake and proceeded ahead of the motorcycle towards the junction. Additionally, the respondent said the Appellant's car hit the motorcycle on the rear whereas PC Mutuku contradicted this by saying the motorcycle hit the car on the rear left where there was evidence of damage. On enjoining the motorcycle rider, the appellant submits that he finds fault in the trial court’s ruling that the procedural omission of the appellant to enjoin the motorcycle rider automatically makes the appellant fully liable. Luliendo & another v Amukota (Suing as the Legal Representative and Administrator of the Estate of Edgar Wafula Amukota DCD) [2025] KEHC 18214 (KLR) Otieno J held: It is not a fault that the rider was never made a third party by the appellant. The fault was in failing to make the rider a defendant in the first instance. That fault was by the plaintiff from the onset. On riding without licence, the appellant submit that lack of a valid licence connotes a lack of qualification for riding a motorcycle. The rider was an amateur rider posing a danger not only to the pillion passenger and himself, but to other road users as well. The provisions of Section 103 B (5) & (7) of the Traffic Act require motorcycle riders to have a valid driving licence the lack of which constitutes a traffic offence and has a substantial bearing on the liability of the accident. A huge portion of blame for the accident should be attributed to the rider based. on his incompetency as an unlicensed rider. On the respondent/plaintiff demeanour at the hearing, the appellant urge the court to take crucial note of the typed proceedings and recorded virtual session that show the respondent's questionable demeanour during cross-examination. The court's recording of the proceedings shows the plaintiff being coached on her answers by an unknown party in the same room. This effectively renders her testimony compromised and dubious. Respondent submissions The Respondent submits that the Appellant, who was the driver and owner of motor vehicle KBW 344W (Nissan), is to blame for the accident. According to the Appellant’s own testimony, while driving towards Tala, he spotted the motorcycle ahead of him, overtook it, then cut back into his lane at the Kwa Kiamba Junction area and rammed into the rear of the motorcycle. This admission clearly demonstrates his negligence and liability for the collision. The respondent submits that the Respondent herein was a mere pillion passenger and never in any way contribute to the occurrence of the accident. The Appellant also never brought any third party proceedings against the rider who was carrying the Respondent herein. On the Issue of the Respondent's Demeanor at the hearing the Appellant's counsel alleged that the witness was being coached on spotting someone passing near the witness. The Court demanded the camera moves which was done. The Court saw someone near the witness but the person was not at all coaching the witness. The assumption was never proved as the Court never saw the witness being coached. In Stanley Njihia Njenga -vsFrancis Peter Masilu Kamuyua HCCA NO 603 OF 2012 states ‘ ‘this is a finding on the demeanor and credibility of a witness by the trial court which this court cannot interfere with unless it is demonstrated that the finding was not supported by evidence or was otherwise plainly wrong. Taking into account all the forgoing, we are satisfied that the learned judge did not base her decision merely on the demeanour of the witnesses as Claimed by the appellants, but on the evidence that was adduced by the two parties” Issue for Determination 1. The sole issue for determination is whether the learned trial magistrate erred in apportioning liability at 70:30 against the appellant. Analysis This being a first appeal, this Court has a duty to re-evaluate the entire evidence on record, draw its own conclusions, and interfere with the trial court’s findings where they are based on no evidence, are plainly wrong, or are against the weight of the evidence. The trial court had the advantage of seeing and hearing the witnesses, particularly on demeanour, but that advantage is not absolute where objective evidence contradicts the oral testimony. Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 A first appeal is by way of retrial. The appellate court must re-evaluate the evidence and draw its own conclusions, but it must give due allowance to the fact that it did not see or hear the witnesses. The Appellant, in his own testimony, admitted overtaking the motorcycle and then cutting back to turn left at the junction, resulting in the collision. PW1, the investigating officer, confirmed that the Appellant overtook the motorcycle and curved left into the junction, and that the rider had the right of way. Although the physical damage was noted on the rear left of the Appellant’s vehicle and the front of the motorcycle, this is consistent with the Appellant executing an unsafe manoeuvre by overtaking and immediately turning left in close proximity to the junction, thereby cutting across the path of the motorcycle that was lawfully proceeding straight. Although the police abstract indicated that investigations were pending, the investigating officer personally visited the scene, prepared a sketch plan and gave direct evidence on the point of impact and the sequence of events. His testimony therefore constituted direct evidence capable of being evaluated alongside the other evidence. The appellant submit that it was the duty of the rider to ride cautiously with due regard to the vehicle in front of him. The trial court was entitled to prefer the Respondent’s account that the Appellant had not safely completed the overtake and cut back, causing the impact. The alleged contradictions in the Respondent’s evidence are not material enough to render her testimony unreliable when viewed alongside the totality of the evidence, including the circumstances of the accident on a straight road with a junction on the left. On apportioning liability, the Appellant’s failure to institute third-party proceedings against the motorcycle rider does not absolve him of liability. The Respondent, as a mere pillion passenger, bore no contributory negligence in the manner of the Appellant’s driving. In Mburia v Mbugua [2024] KEHC 13523 (KLR), the High Court emphasized that apportionment of liability depends upon a careful evaluation of all the evidence and that an appellate court will interfere where the trial court's apportionment is unsupported by the evidence. The 30% reduction already granted by the trial court adequately accounts for any other factors. The trial magistrate properly considered the evidence, the Appellant’s submissions, and the applicable law before arriving at the apportionment of liability. The appellant also relied on the fact that the rider had no driving licence. The appellant submit that lack of a valid licence connotes a lack of qualification for riding a motorcycle. The provisions of Section 103 B (5) & (7) of the Traffic Act require motorcycle riders to have a valid driving licence the lack of which constitutes a traffic offence and has a substantial bearing on the liability of the accident. While that may amount to a traffic offence, absence of a licence does not, without more, establish negligence. The following case affirm this observation: Aoro v Were [2022] KEHC 14716 (KLR) Aburiri J held: I must however warn that the fact that the motor cycle rider had no driving licence had nothing to do with the cause of the accident. Once the plaintiff discharges the burden of proof as required under Section 107 of the Evidence Act, that the driver was to blame for the accident for driving the vehicle in a negligent manner as pleaded in the plaint, and as per the evidence adduced in court on oath, the failure to have a driving or riding licence cannot be the reason for the accident unless there is proof that the rider drove in such a manner that the failure to have the driving licence was the contributory factor to the material accident. On the respondent/plaintiff demeanour at the hearing, the appellant urge that the proceedings show the plaintiff being coached on her answers by an unknown party in the same room. This effectively renders her testimony compromised and dubious. The respondent submitted and denounced the appellant finding by stating that the court saw someone near the witness but the person was not at all coaching the witness. There is no demonstration of bias or any error in principle that would warrant appellate intervention. Stanley Njihia Njenga v Francis Peter Masilu Kamuyua (HCCA No. 603 of 2012) A trial court’s findings on the demeanour and credibility of a witness should not be interfered with on appeal unless demonstrated to be unsupported by evidence or plainly wrong. Moreover, the judgment was not based solely upon demeanour. It was grounded upon the investigating officer's evidence, the physical damage to the vehicles and the circumstances under which the appellant overtook before immediately turning into a junction. After independently analysing the entire record, I am satisfied that the learned trial magistrate correctly found that the appellant substantially contributed to the occurrence of the accident by overtaking immediately before executing a left turn across the motorcycle's path. I am equally satisfied that the motorcycle rider failed to exercise sufficient care to avoid the collision. Thus, there is no basis upon which this Court should interfere with that finding. In view of the above i dismiss the appeal with costs to the respondents. READ AND PUBLISHED INOPEN COURT THIS 16TH JULY 2026 IN THE PRESENCE OF; NO APPEARANCE BY EITHER PARTY BEFORE HON JOYCE GANDANI JUDGE COURT ASSISTANT BEN SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE JOYCE MKAMBE GANDANI** Machakos High Court High Court Div Date: 2026-07-16 11:06:04