https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13100

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL No.E 081 of 2024** **DK RONO, J** **29 JUNE 2026** **BETWEEN** **KELVIN NZAINGA MUENDO................................................APPELLANT** **AND** **AWADH OMAR BAYUSUF & SONS LTD......................1st RESPONDENT** **TIBA TRANSPORTERS COMPANY LIMITED...........2nd RESPONDENT** *(Being an appeal from judgement of Principal Magistrate’s Court at Kilungu delivered on 5July, 2024 by Hon. F. Makoyo Principal Magistrate in Kilungu Pmcc No. E 263 of 2021)* **JUDGMENT** **Background** 1. This appeal arises from the judgment and decree of the Principal Magistrate’s Court at Kilungu in PMCC No. E263 of 2021 delivered on 5th July 2024 wherein the learned trial magistrate dismissed the Appellants suit in a fatal accident claim brought under the provisions of the Fatal Accidents Act, Cap 32 Laws of Kenya and the Law Reform Act, Cap 26 Laws of Kenya. 2. The Appellant, sought damages arising from a road traffic accident that occurred on 22 November 2019, the Appellant was a lawful passenger aboard motor vehicle registration No. KCE 170G that was involved in a road traffic accident with motor vehicles KBP 659K and KBA 644H. 3. The Appellant’s case was that the Respondents or their authorized drivers drove motor vehicles registration number KBP 659K and KBA 644H on the said road that it collided with motor vehicle KCE 107 G and as a result thereof the deceased sustained fatal injuries. 4. Upon hearing the matter, the learned trial magistrate found the Appellant substantially liable for the occurrence of the accident and dismissed the Appellants claim, the Appellant having not proved its case to the required standard. 5. Dissatisfied with the entirety of the said judgment, the Appellant preferred the present appeal challenging the finding on liability. 6. The Appellants in the Memorandum of Appeal dated 24 July 2024 appealed against the whole judgement delivered on 5July 2024 rendered in Kilungu Pmcc No. E 264 of 2021 on the following grounds: 7. The learned magistrate erred and misdirected himself when he failed to consider the Appellants submissions on both points of law and facts; 8. That the learned trial magistrate erred in law and fact by failing to judiciously analyse the evidence on record and the appellants submissions and authorities; 9. The learned trial magistrate erred in law and in fact in holding that no liability was proved against drivers of motor vehicle registration number KBP 659K and KBA 644H; 10. That the trial magistrate erred in law and in fact by failing to find that both the 1st Respondent and 2nd Respondent were jointly and vicariously liable for the accident; 11. That the learned trial magistrate erred in law and in fact in failing to apportion liability between the Appellant and the drivers of motor vehicle Registration No. KPB 659 K and KBA 644H; 12. That the Learned trial magistrate erred in law and in fact in finding that the appellant was wholly to blame for the accident whereas collision involved three motor vehicles Registration Nos. KBA 644H, KBP 659K and KCE 107G; 13. That the learned trial magistrate erred in law and in fact in admitting inadmissible evidence statements recorded at the police station by both the appellant and respondents without the said statements having been first served upon the appellant despite the objection by the appellant’s counsel; 14. That the learned trial magistrate erred in law and in fact in assessing damages under law reform act and fatal accidents act when the plaintiff was seeking general damages for injuries sustained and he was still alive; 15. That the trial magistrate erred in law and in fact in assessing damages that were manifestly low in the circumstances; 16. That the learned trial magistrate erred in law and in fact in coming to the conclusion that was contrary to the evidence on record. 17. Arising from the grounds of appeal set out above the Appellants prayed that the appeal be allowed in its entirety. 18. Before delving into the merits of the appeal, it is necessary to restate the mandate of this Court as a first appellate court. In the celebrated case of *Selle v Associated Motor Boat Co. Ltd***,** [1968] E.A. 123the Court of Appeal held that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 19. This principle was reiterated in *Peters v Sunday Post Ltd*[1958] E.A. 424 and more recently in *William Diamonds Ltd v Brown*[1970] E.A. 1 where the Court of Appeal emphasized that an appellate court is not bound by the trial court's findings if they are unsupported by the evidence or based on a misapprehension thereof. The court must therefore independently interrogate the evidence on liability, dependency, earnings, and the quantum awarded. **Analysis and findings** 1. Having undertaken that duty, the issue that falls for determination is whether the learned trial magistrate erred in finding that the Appellant had failed to prove negligence against the Respondents on a balance of probabilities. 2. The law relating to burden of proof is contained in s 107, 108 and 109 of the Evidence Act. Section 107(1) provides that: *“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”* 1. Section 108 further provides that the burden of proof in a suit lies on the person who would fail if no evidence at all were given on either side. 2. The legal burden therefore rested upon the Appellant to establish that the accident was caused wholly or substantially by the negligence of the Respondents or their agents. It was not sufficient merely to prove that an accident occurred or that the deceased died as a consequence thereof. 3. In *Kiema Mutuku v Kenya Cargo Hauling Services**Ltd*[1991] 2 KAR 258**,** the Court of Appeal emphatically stated that: *‘There is as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.’* 1. Likewise, in *Eastern Produce (K) Ltd v Christopher Atiado Osiro*[2006] eKLR,the court reiterated that negligence is a question of fact which must be proved and cannot be inferred merely because an accident occurred. 2. The Appellant's case was principally founded upon the assertion that motor vehicle registration number KBP 659K rammed motor vehicle KCE 107G from behind thereby causing it to veer into the path of motor vehicle KBA 644H. The principal witness in support of that theory was PW2, a passenger in motor vehicle KCE 107G. 3. However, upon close scrutiny of his testimony, significant inconsistencies emerge. While PW2 maintained that the Probox was struck from behind by motor vehicle KBP 659K, he readily admitted during cross-examination that he had never previously mentioned that fact in any statement. He further conceded that he possessed no independent evidence demonstrating that the vehicle had indeed been hit from behind. The omission of such a crucial fact from his earlier account substantially weakened the probative value of his testimony. 4. The Court of Appeal in *Hahn v Singh*[1985] KLR 716 observed that where a witness departs from or materially contradicts earlier accounts, the court is entitled to treat such evidence with caution. In the present matter, PW2's testimony was not only unsupported by any documentary evidence but was also inconsistent with the contemporaneous police records. 5. The evidence of PW6, Sergeant Kelvin Njagi, who produced the Police Abstract, painted an entirely different picture. Although PW6 was not the investigating officer, his testimony was based on the official records maintained at Salama Police Station. According to those records, motor vehicle KCE 107G lost control after encountering loose chippings on the road, veered onto the wrong side of the road and collided head-on with motor vehicle KBA 644H. Thereafter, it collided with motor vehicle KBP 659K. 6. Most importantly, PW6 testified that the outcome of police investigations attributed blame to the driver of motor vehicle KCE 107G. He further stated that there was no indication in the police records that motor vehicle KBP 659K had crossed into the lane occupied by the Probox or rammed it from behind. 7. Although findings contained in a police abstract or investigation file are not conclusive proof of liability, courts have repeatedly held that such evidence remains relevant and persuasive particularly where no credible evidence is tendered to rebut it. In *Karanja v Malele*[1983] KLR 142, the Court held that a police abstract is not proof of negligence but is admissible evidence whose weight depends on the circumstances of each case. 8. The evidence tendered by the defence substantially corroborated the police version of events. DW1, the driver of motor vehicle KBP 659K, testified that the Probox was overtaking, encountered loose chippings, lost control and crossed into the lane of oncoming traffic where it collided with motor vehicle KBA 644H. According to him, the Probox was then flung back towards his lane, leading to the subsequent collision. 9. The testimony of DW1 was further corroborated by DW2, Police Constable Scholastica Mueni, who had custody of the investigation file. DW2 referred to statements recorded from the drivers and witnesses shortly after the accident. The statements consistently indicated that motor vehicle KCE 107G had attempted an unsafe overtaking manoeuvre, encountered loose chippings and entered the path of oncoming traffic. According to DW2, investigations culminated in the driver of KCE 107G being blamed and charged for causing the accident. 10. Particularly noteworthy is the evidence regarding the statement made by the driver of KCE 107G shortly after the accident. DW2 testified that the driver stated he was overtaking when the collision occurred and that he did not indicate that he had been hit from behind. This contemporaneous statement stands in stark contrast to the version later advanced before the court. 11. Courts have consistently attached considerable weight to statements made immediately after an accident because they are less likely to be influenced by subsequent events. In *Timsales Limited v Wilson Libuywa*[2008] eKLR**,** the court observed that contemporaneous accounts generally possess greater evidential value than versions reconstructed years later during litigation. 12. The Appellant did not call the investigating officer who visited the scene. No sketch map was produced. No scene photographs were tendered. No inspection reports were availed. No expert evidence was called to demonstrate that the pattern of damage was consistent with a rear-end collision as alleged by PW2. Consequently, the allegation that motor vehicle KBP 659K struck the Probox from behind remained unsupported by independent evidence. 13. In *Nandwa v Kenya Kazi Ltd* [1988] eKLR**,** the court held that where evidence is evenly balanced, the party bearing the burden of proof must fail. Similarly, in Miller v Minister of Pensions[1947] 2 All ER 372**,** Lord Denning explained that proof on a balance of probabilities means that a court must be satisfied that a fact is more probable than not. 14. Upon evaluating all the evidence placed before the trial court, I am unable to conclude that negligence on the part of the Respondents was proved to be more probable than not. To the contrary, the greater weight of the evidence points towards motor vehicle KCE 107G having improperly overtaken, lost control and entered the lane of oncoming traffic thereby initiating the chain of events that resulted in the accident. 15. The Appellant further faults the trial court for failing to apportion liability among the three vehicles involved. While apportionment is appropriate where evidence demonstrates contribution by multiple parties, liability cannot be apportioned in a vacuum. There must first be evidence establishing negligence against the parties concerned. 16. In *Statpack Industries Ltd v James Mbithi Munyao*[2005] eKLR, the Court of Appeal held that apportionment of liability must be based on evidence and cannot be founded on conjecture. Similarly, in*Hussein Omar Farah v Lento Agencies* [2006] eKLR**,** the court observed that liability follows fault and a court cannot arbitrarily assign blame where evidence does not support such a finding. 17. In the present case, no credible evidence was presented to demonstrate negligence on the part of either of the Respondents' drivers. The mere fact that their vehicles were involved in the accident was not sufficient to establish liability. 18. Having independently evaluated the evidence, I am satisfied that the learned trial magistrate properly appreciated the evidence and correctly applied the law. The finding that the Appellant failed to prove negligence against the Respondents on a balance of probabilities was firmly grounded on the evidence on record and cannot be said to have been erroneous. Consequently, I find no basis upon which this court can interfere with the trial court's findings on liability. 19. This court is duty bound to appraise the damages awarded by the trial court irrespective of the fact that the trial court dismissed the claim, this is in line with the decisions in *Frida Agwanda & Ezekiel Onduru Okech vs Titus Kagichu Mbugua*[2015] eKLR and *Lei Masaku vs Kaplana Builders Ltd*[2014] eKLRwhere it has been held time and again by the Court of Appeal that the court of first instance assess damages even if it finds that liability has not been established. 20. This court having perused the record of appeal and the submissions made by the parties; and the decision on quantum made by the trial court which made the following awards: 21. **General Damages** The trial court assessed general damages for pain and suffering at Kshs. 950,000, the appellant having sustained the following injuries; Fracture of the right femur, Fracture of the left ankle bimalleolar, Fracture of the pelvic bones and soft tissue injuries. The injuries were confirmed by the medical report prepared by Dr. Okere. Having appreciated the injuries suffered by the Appellant and the comparative decisions with respect to near similar injuries, I am not convinced that the assessment of damages by the trial court was inordinately very low or very high as to amount to an erroneous estimate for that reason I uphold the decision of the trial court on the assessment of general damages for pain and suffering. 1. **Future Medical expenses** The trial court assessed the cost of future expenses at Kshs. 500,000, I note that this is an amount that was pleaded by the appellant and also alluded to by Dr. Okere in his medical report. I find no reason to disturb the assessment. 1. **Special damages** The trial court assessed special damages at Kshs. 3,550 this amount was pleaded and proved; I find no basis to disturb this award. 1. The burden of proving negligence rested upon the Appellant. Having carefully re-evaluated the evidence, I find that the Appellant failed to discharge that burden. The evidence adduced was insufficient to establish, on a balance of probabilities, that the Respondents or their drivers caused or contributed to the accident. 2. Consequently, the appeal is hereby dismissed with costs to the Respondents. The judgment of the trial court delivered on 5th July 2024 is upheld in its entirety. 3. It is so ordered DELIVERED, DATED and SIGNED at MERU on this 29th day of June 2026. Judgment delivered through Microsoft Teams Online Platform D K Rono Judge