https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10576

Kakai v Mutua (Civil Appeal E012 of 2020) [2026] KEHC 10576 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEHC 10576 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E012 of 2020 G Mutai, J July 13, 2026 Between Kenneth Kakai Appellant and Patrick Mutua Respondent Judgment 1.The appellant was the owner of motor vehicle registration number KBW 890A. The Respondent, on the other hand, was the registered owner of motor vehicle registration number KBZ 115A. 2.In a plaint dated 24th February 2017, the appellant averred that motor vehicle registration number KBW 890A was involved in a road accident while being driven on a road in Machakos town. He contended that the driver of KBZ 115A drove the motor vehicle at high speed, negligently, carelessly and dangerously, so that it lost control and entered the lane of oncoming motor vehicles, thereby hitting motor vehicle registration number KBW 890A as it was being driven, causing an accident that resulted in serious damage to the appellant’s car. The appellant wholly blamed the driver of the respondent’s car on the ground that the said car wasn’t maintained in a proper mechanical state, was driven at a very high speed and in a negligent manner, and that the driver did not take due care and attention to other road users and failed to observe traffic rules and/or the Highway Code. 3.The plaintiff pleaded that the assessed cost of repair was Kes 643,066/61, which exceeded 80% of its pre-accident value, and as a result, the vehicle was written off. He therefore sought Kes 670,000/, the pre-accident value of the car; Kes 16,900/-, the cost of assessment and towing; and Kes 917.52 per day, which he stated was the daily business income. 4.The respondent neither entered an appearance nor filed a defence within time; as a result, judgment in default was entered. However, the said judgment was set aside by consent upon the respondent's application on 17th July 2019. 5.In his defence, the respondent denied that he was the owner of the motor vehicle registered under KBZ 115A, or that the said vehicle was involved in a road traffic accident. However, without prejudice, he sought to place the blame on the appellant, on the alleged ground that, if there was an accident, it must have occurred when the appellant overtook, or attempted to do so dangerously or recklessly, by suddenly changing lanes without waiting for the road to become clear, driving dangerously and at high speed, failing to keep a proper look-out for other motorists, failing to apply the brakes or slow down, swerve, or otherwise manage or control the motor vehicle, driving without due care and attention, and failing to observe the Traffic Act and the Highway Code, thereby causing the alleged accident. 6.The respondent contended that since the appellant caused the accident, he was estopped from claiming damages on account of it. 7.The matter was heard by way of viva voce evidence. The appellant called 3 witnesses. Mr Kenneth Kakai was the first witness. He testified that at the time of the accident, the vehicle was being driven by a driver. Due to the accident, the car was written off. According to him, the motor vehicle provided him with revenue of Kes 917/- per day. He testified that the pre-accident value of the motor vehicle was Kes 670,000/- while the salvage value was Kes 200,000/-. He stated that the police blamed the driver of KBZ115A and that the said driver was charged with a traffic offence, which at the time of the hearing was pending determination. 8.When cross-examined by Mr Chengecha, he stated that the motor vehicle could operate 7 days a week, although he conceded that it might not be in use every day. He admitted that he hadn’t taken any steps to mitigate his losses, as he was in court litigating over the motor vehicle. 9.The second witness was No 62646 CP Pius Nyaga from the Machakos Traffic Base. He testified that an accident occurred on 17th August 2017 at 753am on the Machakos-Kyumbu road near the Governor’s office. He further stated that motor vehicle registration number KBZ 115A, driven by Mr Joshua Musyoki, overtook a matatu and collided head-on with motor vehicle registration number KBZ 115A, a Suzuki Maruti, driven by Mr Mutua Nyamai. He blamed the driver of motor vehicle registration number KBZ 115A for the accident and averred that he was charged with a traffic offence. At the time of his testimony, the traffic case had not been concluded. 10.When cross-examined, CP Nyaga stated that he never visited the site and did not have a sketch map of the accident site. He confirmed that the traffic case had not been concluded. 11.The third witness was Mr Patrick Mutinda Sila, a Certified Public Accountant. He testified that he was engaged by the appellant to assess the loss suffered by the appellant. He further testified that, in his view, the appellant suffered a loss of Kes 917/52 per day from 17th May 2016. 12.In a judgment delivered on 7th October 2020, the court below found that the appellant had proved his case. Therefore it entered judgment for him in the sum of Kes 470,000/-, which was the pre-accident value of the motor vehicle, less salvage value of Kes 200,000/-, Kes 16,900/- for assessment and owing of the motor vehicle and Kes 660,614/40 being average business income loss for a total sum of Kes 1,147,514/40 which amount was subject to 50% contributory negligence, for a net of Kes 573,757/20. 13.The court awarded the appellant interest at court rates on the damages as well as costs. 14.The basis of the court’s decision to find that there was a 50% contributory negligence was expressed in the judgment as follows:-“It is quite clear that before a motor vehicle can overtake, the driver should ensure that the road is clear and safe, but that notwithstanding, the other drivers are also required to exercise precaution for their own safety when they encounter an overtaking motor vehicle. From the evidence adduced, there is no evidence to illustrate the steps the plaintiff's driver took to avoid the accident. He did nothing to prevent the accident. There was no independent eyewitness to the occurrence of the material accident who testified to the same. In the premises, I do find both drivers of KBW 890A and KBZ 115A to blame for the accident and apportion that blame in equal proportions of 50:50.” 15.The decision to apportion negligence at 50:50 aggrieved the appellant, who filed the instant appeal. The grounds of appeal are as follows:1.That the learned magistrate erred in law and fact in finding that liability was to be apportioned in the ratio of 50:50 as against the appellant and the respondent;2.That the learned magistrate erred in law and fact in failing to appreciate sufficiently or at all to consider the evidence of the police officer who testified as PW2 with regard to the issue of liability;3.That the learned magistrate erred in law and fact in failing to appreciate sufficiently or at all to consider the evidence adduced in court and the submission of the Appellant;4.That the learned magistrate erred in law and fact in failing to appreciate and consider that the Respondent never called any witness to rebut the evidence of the plaintiff and his witnesses; thus, it ought to remain unchallenged. 16.On his part, the respondent filed a cross-appeal in which he contended that the alleged loss of user wasn’t proved. In the alternative, he averred that if there was a loss of user, the same should be scaled down. 17.The appeal and the cross-appeal were canvassed by way of written submissions. The appellant's submissions are dated 22nd June 2022. That of the Respondent is dated 23rd January 2023. 18.In his submissions, the counsel for the appellant contended that the court below was wrong to find that the appellant contributed to the accident. 19.Counsel submitted that the driver of the respondent’s motor vehicle was charged with causing the accident, which, in his view, proved that the driver was responsible for it, while his employer was vicariously liable for it. 20.It was urged that the evidence of the appellant’s witnesses was not challenged as the respondent did not call any witnesses. In support of its submissions, reliance was placed on the decisions of the court in the cases of Gateway Insurance Co Ltd v Jamila Suleiman & another [2018]eKLR and Trust Bank Ltd v Paramount Universal Bank Ltd & 2 Others, Nairobi Milimani HCCC NO 1243 of 2001 (unreported). 21.The appellant urged that the evidence of PW2 was unchallenged. 22.It was contended that the question as to whether the appellant could have avoided the accident was not an issue before the court and that the court below misdirected itself in making a finding based on it. 23.Counsel submitted that the court was right to award the appellant damages for loss of use as the same was not rebutted. 24.On its part, the respondent’s counsel submitted that the liability was not proved. The respondent poured cold water on the appellant's decision not to call the driver of the motor vehicle registration number KBW 890A as a witness. He contended that this Court ought to draw a negative inference from the said decision as it was likely that had the driver testified, his evidence would have been adverse to the appellant. Regarding the witnesses who testified it was submitted that they were not exe witnesses. 25.Counsel contended that the mere fact that the driver of his client's car was charged does not mean that he was solely responsible for the accident. It was urged that only a judgment upon trial would be determinative of the said issue. 26.On a without prejudice basis, it was submitted that this court should uphold the finding of the court below on contributory negligence. 27.Regarding the loss of the user, counsel contended that this wasn’t proved. Therefore, he prayed that it be disregarded. 28.Alternatively, it was contended that the appellant ought to have mitigated its losses. 29.The respondent submitted that the Record of Appeal was incomplete. Relying on the cases of South Nyanza Sugar Co Ltd v Simeona A Opolo [2020] eKLR and Richard Mogire v Le Palanka Restaurant [2021] eKLR, where incomplete appeals were dismissed. 30.The Respondent thus prayed that the appeal be dismissed and its cross-appeal be allowed with costs. 31.I have perused the record of appeal, the documents therein, as well as the submissions and the authorities filed in support of or against the appeal. I note that this is the first appeal. My duty is to reevaluate the evidence and draw my own conclusion. I must, however, keep at the back of my mind that this court, unlike the trial court, does not have the advantage of hearing the evidence first-hand or observing the demeanour of the witness and must make due allowance. 32.In the case of Selle & Another v Associated Motor Boat Co Ltd & Others (1968) EA 123, it was held that:-“This court is not bound necessarily to accept the finding of fact of the court below. An appeal to this court is by way of a retrial, and the Court of Appeal is not bound to follow the trial court’s finding of fact if it appears either that it failed to take into account particular circumstances or probability, or its impression of the demeanour of a witness is inconsistent with evidence generally.” 33.Similarly, in the case of Peters v Sunday Post Limited [1985] EA 424, the court held that:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses… But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 34.What then are the issues in the appeal and the cross-appeal? In my view, they are:-i.Whether the court below was right to find that the appellant was equally to blame for the accident;ii.If the finding on the loss of user was lawful; andiii.Who should pay the costs of the appeal? 35.I will look at each issue in turn. Was the appellant equally to blame for the accident? 36.The evidence adduced in court shows that the appellant’s car was being driven in its proper lane. It was the car belonging to the respondent/cross appellant that, while overtaking a matatu and being in a lane used by oncoming vehicles, rammed into the appellant’s car. That was the evidence of the appellant’s two witnesses. 37.Although it is true that neither of those witnesses was at the accident scene when it occurred, their evidence was not controverted as the respondent/cross appellant did not call a witness. 38.I agree as was stated ty the court in Stapley v Gypsum Mines Limited (2) (1953) A C 663 that:-“Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident…” 39.In my view, a finding of joint causation may rightly be made where there is a lack of clarity as to which motor vehicle was responsible. The circumstances of this appeal do not, in my view, lend themselves to doubt, for as I have stated, the respondent’s motor vehicle was in the wrong lane, was overtaking a matatu and was, in all likelihood, speeding in its haste. The Respondent, in any event, did not call a witness. Without a witness, the evidence of the appellant’s witnesses was unchallenged. 40.In the case of Gateway Insurance Co Ltd v Jamila Suleiman & another [2018] eKLR, it was stated that:-“Although the defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence tendered by the 1st plaintiff’s case stand unchallenged, but also that the claims made by the defendant in his defence and counterclaim are unsubstantiated. In the circumstances, the counterclaim must fall.” 41.The court below ought to have made a presumption that a motor vehicle being driven in its lane was properly managed unless evidence to the contrary was adduced. There was no basis for the court below to find contributory negligence where no evidence was tendered in that respect. In making the said finding, the court below engaged in speculation. Whereas it is true that careful drivers do swerve to avoid accidents, there may be times when, despite their best efforts, accidents caused by negligent drivers occur without fault on the part of the careful drivers. 42.In my view, the submissions of the respondent/cross appellant were not helpful. The cases cited were in respect of accidents where there was contestation as to who caused them. See Hussein Omar Farah v Lenjo Agencies [2006] eKLR, Commercial Transporters Ltd v Registered Trustees of Catholic Archdiocese of Mombasa [2015] eKLR, and Nelson Njihia Kimani v David Marwa & another [2017] eKLR. Whether the court was right to award damages for loss of user 43.In its cross-appeal, the respondent seeks to have the court set aside the finding on loss of user. I, however, note that there was no evidence on his behalf on the said issue; the evidence of Mr Patrick Sila was unchallenged. 44.In view of the foregoing, I am persuaded that the appeal has merit. I set aside the finding of the court below on liability and find and hold that the respondent/cross appellant was 100% liable for the accident. The appellant is thus awarded Kes 1,147,514/40, which sum shall accrue interest as ordered by the court below. 45.Regarding costs, Section 26 of the Civil Procedure Act provides that costs shall follow the event. The appellant shall have costs on appeal as well as in the court below. 46.It is so ordered. DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF JULY 2026.GREGORY MUTAIJUDGEIn the presence of:Mr Khadiesi, holding for Mr Makau Mutua, for the Appellant;No appearance for the Respondent; andMs Bancy – Court Assistant.