https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11161

Kiguru v Onyango (Civil Appeal E031 of 2025) [2026] KEHC 11161 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEHC 11161 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E031 of 2025 AM Hassan, J July 22, 2026 Between Elizabeth Waithira Kiguru Plaintiff and Lilian Achieng Onyango Defendant (Being an Appeal from the Judgment and Decree of Hon. Yusuf Barasa Mukhula Principal Magistrate, Thika in Thika CMCC No. 408 of 2019 Dated 30th January, 2025) Judgment A. Introduction 1.The Plaintiff, vide a Plaint dated 18th January 2019, instituted a suit against the Defendants seeking general damages, special damages, cost of the suit, and interest thereon arising from a road traffic accident that occurred on 29th December 2017 involving Motor Vehicle Registration Number KCB 208M and Motor vehicle Registration KAH 400U. 2.The Plaintiff averred that on or about 29th December 2017, she was travelling as a passenger in Motor Vehicle Registration Number KCB 208M along Thika-Mangu Road at Kwaheri Area when the 3rd Defendant so negligently drove the said Motor Vehicle that he lost its control, and collided with an oncoming Motor Vehicle Registration Number KAH 400U, as a result of which she sustained serious bodily injuries for which she holds the Defendants jointly and severally liable. 3.In Response, the Defendant entered appearance and filed a Defence denying the allegation of the Plaintiff. 4.The suit was heard in the Magistrates Court, and consideration given to evidence on record as well as submissions, and Judgment delivered on 30th January 2025, in which the learned Magistrate held that: "I note that the Plaintiff sued the owner of M/V Registration No. KCB 208M instead of M/V Reg No. KAH 400U which she blamed. There is no evidence showing that the 1st Defendant who was the owner of the M/V Reg No. KAH 400U was to blame, there is also no indication why the 2nd and the 3rd Defendants were sued. In the end, I do find that the Plaintiff has therefore failed to prove her case on a balance of probability as required and she is not entitled to any damages. Had the Plaintiff succeeded in her claim, I would have awarded her Kshs. 600,000/= being guided by the authority of Easy Coach Ltd Vs. Emily Nyagasi (supra). 5.As a result, the court ordered each party to bear their own costs and accordingly dismissed the Plaintiff’s suit. 6.Being dissatisfied with the judgement of the trial court, the Plaintiff now (Appellant) appealed the judgment through the Memorandum of Appeal dated 20th February 2025, on the following grounds: -1.That the learned trial magistrate in dismissing the Appellant’s case erred in law and in fact in failing to take into account that the Appellant proved her case on a balance of probabilities against the driver of owner of KCB 208M for failing to swerve, slow down, or brake or to do anything to avoid the accident.2.That the learned trial magistrate erred in law and in failing to determine the issue of liability as to who was to blame for the accident after finding that it is not in dispute that the said accident occurred.3.That the learned trial magistrate erred in law and in fact in not finding liability against the Respondents despite there being evidence on record on negligence against the 1st and 2nd Respondent’s driver, the 3rd Respondent who failed to swerve, slow down or brake or do anything to avoid the accident which evidence was not contravened by the Respondents.4.That the learned trial magistrate erred in law and in fact in finding that there was no indication why the 2nd and 3rd Respondents were sued whilst the evidence was that the 2nd and 3rd Respondents the registered and/or beneficial owners of Motor Vehicle KCB 208M.5.That the learned magistrate erred in law and in fact in not considering the pleadings, evidence and submissions filed on behalf of the Appellant and if he did, he reached wrong conclusions on the evidence and made wrong findings on the law cited.6.The decision was arrived at on consideration, to the extent that this was done, of wrong principle of Law.7.That the decision was against the weight of evidence. 7.The appeal was canvassed by way of written submissions. Before delving into the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123, to re-evaluate, re-assess and analyse the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when they testified. Submissions By Parties Appellant’s Submissions 8.The Appellant submitted that, as a first appellate court, the High Court was under a duty to re-evaluate and reconsider the entire evidence before arriving at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. In support of this proposition, reliance was placed on Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Kamau v Mungai & Another [2006] KLR 150, which affirm the duty of a first appellate court to reassess the evidence afresh. 9.The Appellant further argued that the trial court erred in law dismissing the suit because the evidence presented had established the claim on a balance of probabilities. Reliance was placed on Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, which adopted the principles in Miller v Minister of Pensions [1947] 2 All ER 372, to submit that a party succeeds where the evidence shows that its version is more probable than not. Reliance was also placed on William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR, where the court observed that proof on a balance of probabilities is achieved once a party establishes a likelihood of 51% as against 49%. 10.The Appellant contended that her testimony regarding the occurrence of the accident remained substantially uncontroverted. She testified that the accident occurred on 29th December 2017, involved two motor vehicles travelling in opposite directions, and that both drivers were to blame. In contrast, the Respondents' witness merely denied that the accident occurred, admitted that he had no personal knowledge of the accident, did not produce the duty roster, OB extract or other supporting police records, and was not stationed at Gatundu Police Station at the material time. The Appellant therefore argued that the Respondents failed to rebut her evidence, leaving her account of the accident unchallenged. 11.The Appellant further submitted that the police abstract, which she produced without objection, conclusively established that the accident occurred and involved the motor vehicles in question. She argued that since the Respondents failed to produce their own copy of the police abstract, duty roster or occurrence book (OB) records, the court ought to have drawn an adverse inference against them. In support, reliance was placed on Brian Muchiri Waihenya v Jubilee Hauliers Ltd & 2 Others [2017] eKLR, where the court held that “it is trite that a police abstract is a police document and its contents when produced and admitted without objection ought to be taken as the truth.” 12.The Appellant submitted that the trial court ought to have applied the doctrine of res ipsa loquitur, arguing that the circumstances of the accident gave rise to an inference of negligence on the part of the Respondent. Reliance was placed on Mary Ambeya Kadiri (suing as the Administrator of the Estate of Saleh Juma Kadiri (Deceased)) v County Motor Limited [2017] eKLR, where the court, citing with approval Nandwa v Kenya Kazi Limited [1988] eKLR and Barkway v South Wales Transport Company Limited [1956] 1 All ER 392, explained that res ipsa loquitur is an evidential rule applicable where, in the ordinary course of events, an accident is more likely than not attributable to negligence. Once a plaintiff establishes a prima facie case, the occurrence of the accident itself raises an inference of negligence and shifts the evidential burden to the defendant to provide a satisfactory explanation by demonstrating either that the accident was fortuitous or that it occurred without negligence on its part. Applying those principles, the court held that the trial magistrate erred in finding that the police abstract was insufficient to prove negligence merely because no eyewitness or the police officer who issued it testified. The court found that the unopposed production of the police abstract established the occurrence of the accident and the involvement of the respondent's motor vehicles. It further relied on Joel Muna Opija v East Africa Sea Food Limited, Kisumu Civil Appeal No. 309 of 2010 [2013] eKLR, where it was held that although the best evidence of motor vehicle ownership is a document from the Registrar of Motor Vehicles, the contents of a police abstract produced without objection cannot subsequently be disputed. The court therefore concluded that the appellant had established a prima facie case capable of invoking the doctrine of res ipsa loquitur, which was not rebutted by the respondent. 13.The Appellant submitted that the trial magistrate erred in law and fact by failing to determine liability between the motor vehicles involved in the accident. It was argued that the Appellant properly sued the owner of motor vehicle KCB 208M, with whom she had a direct cause of action, and not the owner of motor vehicle KAH 400W, since a passenger has no contractual relationship with a third-party motor vehicle. Although the Respondent instituted third-party proceedings against the owner of KAH 400W, those proceedings were abandoned, leaving the court unable to determine the third party's liability. Relying on James Gikonyo v D M (Minor suing through his mother and next friend, I M O) [2016] eKLR, counsel argued that liability ought to have been determined as between the Appellant and the Respondent. Further relying on Boniface Klati & Another v Michael Kariuki Kamau [2007] eKLR, counsel submitted that where a defendant alleges that a third party is liable or contributed to the accident, the defendant must pursue the third-party proceedings, and the appellant should not be denied relief on account of the unresolved third-party claim. 14.The Appellant further submitted that the trial magistrate erred in dismissing the suit despite the Appellant's evidence being uncontroverted and sufficient to establish her claim, and urged the appellate court to find in her favour. On quantum, counsel contended that the award of Kshs. 600,000 as general damages was fair and reasonable and prayed that it be upheld. The Appellant further prayed for costs in both the lower court and the High Court, interest on the general and special damages, and costs. Respondent’s Submissions 15.The Respondent had not filed their submission by the time of writing the judgment herein 16.In the circumstances, I have considered the appeal from the Appellant and I therefore wish to have the following as issues for determination; B. Issues For Determinationi.Whether the learned trial magistrate erred in law and fact in finding that the Appellant failed to prove her case on a balance of probabilities and consequently dismissing the suit.ii.Whether the Appellant is entitled to the damages assessed by the trial court and the consequential reliefs sought in the appeal.iii.Who should bear the costs of the suit before the trial court and of this appeal. C. Analysis And Determination Whether the learned trial magistrate erred in law and fact in finding that the Appellant failed to prove her case on a balance of probabilities and consequently dismissing the suit 17.This being a first appeal, this court is duty-bound to re-evaluate, re-analyse and reconsider the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 18.The burden of proving negligence rests upon the party alleging it. Under Sections 107, 108 and 109 of the Evidence Act, the legal burden lies upon the plaintiff to establish the claim on a balance of probabilities, while the evidential burden may shift depending on the evidence adduced during the trial. The question before this court is therefore whether the Appellant discharged that burden. 19.It is common ground that the Appellant was a fare-paying passenger aboard Motor Vehicle Registration No. KCB 208M on 29th December 2017 when it was involved in a collision with Motor Vehicle Registration No. KAH 400U along the Thika–Mangu Road. It is equally undisputed that she sustained injuries arising from that collision. The dispute concerns whether negligence on the part of the Respondents was established on a balance of probabilities. 20.Upon re-evaluating the record, I find that the Appellant did not merely assert that an accident occurred. She gave a detailed account of the events leading to the collision. Her evidence was that the driver of Motor Vehicle Registration No. KAH 400U attempted to overtake another vehicle at a high speed despite the presence of oncoming traffic and, being unable to return to his proper lane, collided head-on with the matatu in which she was travelling. She further testified that the driver of Motor Vehicle Registration No. KCB 208M failed to swerve off the road, slow down, brake or take any evasive action to avoid the collision. She therefore attributed negligence to both drivers. 21.That testimony amounted to direct evidence of the manner in which the accident occurred. The Appellant specifically identified the negligent acts and omissions which, in her view, caused the collision. The trial court was therefore required to evaluate that evidence against the defence evidence and determine whether negligence had been established on a balance of probabilities. 22.The Respondents, on the other hand, did not adduce evidence capable of rebutting the Appellant's account. Their witness admitted that he neither witnessed the accident nor had personal knowledge of how it occurred. He also did not produce the occurrence book extract, police investigation file, duty roster or any documentary evidence contradicting either the Appellant's testimony or the police abstract. Consequently, the Appellant's account of the occurrence of the accident remained substantially uncontroverted. 23.The Appellant further urged this court to find that the doctrine of res ipsa loquitur was applicable. The doctrine is an evidential rule which permits an inference of negligence where the nature of the accident is such that it would not ordinarily occur in the absence of negligence and the thing causing the accident was under the management or control of the defendant. However, as was observed by the former East African Court of Appeal in Embu Public Road Services Ltd v Riimi [1968] EA 22, where evidence has been led explaining how an accident occurred, the doctrine largely ceases to apply and the court must determine liability on the basis of that evidence.Likewise, in Lakhamshi v Attorney General [1971] EA 118, the court held that once evidence explaining the circumstances of a collision is available, negligence falls to be determined upon the totality of that evidence rather than on presumptions arising from the mere occurrence of the accident. 24.In the present case, the Appellant's case did not rest solely on the occurrence of the accident. She gave direct eyewitness evidence describing how the collision occurred and identifying the acts of negligence allegedly committed by both drivers. Accordingly, while the doctrine of res ipsa loquitur was properly raised in the submissions, this court finds that the determination of liability is more appropriately founded upon the direct evidence adduced before the trial court, rather than upon an inference of negligence drawn from the mere occurrence of the accident. 25.The learned trial magistrate nevertheless dismissed the suit on the ground that the Appellant had sued the owner of Motor Vehicle Registration No. KCB 208M instead of the owner of Motor Vehicle Registration No. KAH 400U, whom the court considered to have been responsible for the accident. Respectfully, that finding is inconsistent with both the pleadings and the evidence on record. The Plaint expressly pleaded particulars of negligence against the driver of Motor Vehicle Registration No. KCB 208M, while the Appellant's evidence attributed negligence to both drivers. The learned magistrate therefore misapprehended the Appellant's case by proceeding on the erroneous premise that liability had been attributed solely to the driver of Motor Vehicle Registration No. KAH 400U. 26.Moreover, the possible negligence of the driver of Motor Vehicle Registration No. KAH 400U did not absolve the Respondents from liability. A passenger injured in a collision involving two motor vehicles is entitled to pursue a claim against any or all of the persons whose negligence caused or contributed to the accident. The purpose of third-party proceedings under Order 1 Rule 15 of the Civil Procedure Rules is to enable a defendant to seek contribution or indemnity from another person alleged to be liable; they do not extinguish or postpone the plaintiff's cause of action. In Boniface Klati & Another v Michael Kariuki Kamau [2007] eKLR, the court held that where a defendant alleges that a third party bears responsibility for the plaintiff's loss, it is incumbent upon that defendant to prosecute the third-party proceedings, and the plaintiff ought not to be denied relief merely because those proceedings were not pursued. Since the Respondents did not prosecute the third-party proceedings to conclusion, the learned trial magistrate remained under a duty to determine the Appellant's claim on the evidence before the court. 27.I further note that the police abstract produced by the Appellant was admitted into evidence without objection and confirmed the occurrence of the accident as well as the involvement of the two motor vehicles. Although a police abstract is not conclusive proof of negligence, it constitutes relevant evidence of the occurrence of an accident and the parties involved. Considered together with the Appellant's eyewitness testimony and the absence of any credible rebuttal from the Respondents, it lends support to the Appellant's account of the accident. 28.Having independently re-evaluated the entire record, I am satisfied that the learned trial magistrate failed to properly evaluate the evidence before the court and consequently arrived at an erroneous conclusion that the Appellant had failed to prove her claim. Rather than analysing whether the evidence established negligence against the Respondents, the learned magistrate dismissed the suit on the mistaken premise that the Appellant had sued the wrong parties. In so doing, the court overlooked the Appellant's direct evidence implicating the Respondents' driver and failed to determine liability as between the parties before it. I therefore find that the Appellant proved, on a balance of probabilities, that the Respondents' driver contributed to the occurrence of the accident, and the dismissal of the suit cannot be sustained. Whether the Appellant is entitled to the damages assessed by the trial court and the consequential reliefs sought in the appeal 29.Having found that the learned trial magistrate erred in dismissing the Appellant's claim, it falls upon this court to determine whether the Appellant is entitled to the damages assessed by the trial court and the consequential reliefs sought in the appeal. Although the learned magistrate dismissed the suit, he nonetheless assessed general damages at Kshs. 600,000/= had the Appellant succeeded. The Appellant has not challenged that assessment but urges this court to adopt it. 30.The assessment of damages is an exercise of judicial discretion. In Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v Lubia & Another (No. 2) [1987] KLR 30, the Court of Appeal held that an appellate court will only interfere with an award of damages where the trial court took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended the evidence, or arrived at an award that is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. In the present appeal, none of those circumstances has been demonstrated. Having considered the injuries sustained by the Appellant, the comparable authorities relied upon before the trial court, and the reasons given by the learned magistrate, I am satisfied that the assessment of Kshs. 600,000/= as general damages was founded on the correct principles and represents fair compensation. I therefore adopt that assessment. 31.With regard to special damages, the law is well settled that they must be specifically pleaded and strictly proved. According to the record, the Appellant pleaded special damages amounting to Kshs. 12,022/= comprising Kshs. 4,000/= for the medical report, Kshs. 7,472/= for medical expenses, and Kshs. 550/= for the official search. The record further shows that the Appellant produced documentary evidence in support of each of those expenditures, and the Respondents neither challenged the authenticity of the documents nor disputed the amounts claimed. I am therefore satisfied that the Appellant strictly proved the pleaded special damages of Kshs. 12,022/= and is entitled to recover the same. 32.In the premises, I find that the Appellant has established her entitlement to both general and special damages. I further find that the trial court's assessment of general damages was fair, reasonable and founded on the applicable legal principles, while the special damages pleaded were specifically pleaded and strictly proved through documentary evidence. Consequently, the Appellant is entitled to the damages assessed by the trial court together with the consequential reliefs arising therefrom. Who bears the cost of the suit 33.Costs are in the discretion of the court pursuant to Section 27 of the Civil Procedure Act, though the general rule is that costs follow the event unless the court, for good reason, orders otherwise. 34.The learned trial magistrate directed each party to bear its own costs after dismissing the Appellant's suit. Having found that the dismissal was erroneous and having allowed this appeal, the foundation upon which that order was made no longer exists. 35.I find no exceptional circumstances that would justify departing from the general principle that costs follow the event. The Appellant, having successfully challenged the judgment of the trial court, is entitled to the costs of the suit before the subordinate court as well as the costs of this appeal. D. Disposition 36.Having carefully considered the Pleadings, the Record of Appeal, the Appellant's Submissions, together with the applicable law and authorities, this court now renders its determination on the issues arising for resolution in this appeal as follows:a.The Appeal is hereby allowed.b.The Judgment and Decree of the Chief Magistrate Court in Thika CMCC No. 408 of 2019 delivered on 30th January 2025 are hereby set aside and substituted with Judgment in favor of the Appellant against the Respondents, jointly and severally, as follows:i.Liability against the Respondents.ii.General Damages in the sum of Kshs. 600,000/=.iii.Special Damages in the sum of Kshs. 12,022/=.iv.Interest on the Special Damages at court rates from the date of filing the suit until payment in full.v.Interest on the General Damages at court rates from the date of the judgment of the trial court until payment in full.vi.The Appellant shall have the costs of the suit before the trial court and the costs of this Appeal.vii.Interest on the costs of the suit before the trial court and on the costs of this Appeal shall accrue at court rates from the date of taxation until payment in full. It is so ordered. SIGNED BY/FOR: HON. JUSTICE ABDI M. HASSANTHIKA HIGH COURTHIGH COURT DIV DATE: 2026-07-22 13:00:53