https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6610

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL NO. E068 OF 2024** **JAMES KISINCHA……………………………………………APPELLANT** **-VERSUS-** **LILIAN ATIENO OMONDI …………..…………1ST RESPONDENT** **JEREMIAH IRUNGU NDUNGU........................2ND RESPONDENT** **(Being an appeal from the judgment/decree of the Honourable J. P. Nandi (PM) dated 22/11/2024 in Bondo PMCC No. E057 of 2021)** **BETWEEN** **LILIAN ATIENO OMONDI..........................PLAINTIFF** **VERSUS** **JAMES KISINCHA...................................DEFENDANT** **JUDGMENT** 1. The appeal herein arises from the judgement of Hon J.P Nandi (SPM) dated 22/11/2024 in Bondo PMCC No. E057 of 2021 wherein he held the Appellant 100 % liable in negligence and awarded Kshs 100,000/ as general damages plus costs of the suit and interest. 2. The Appellant being dissatisfied with the Judgement and decree aforesaid, filed his Memorandum of Appeal dated 16/12/2024 wherein he raised the following grounds of appeal:- * 1. That the learned trial Magistrate erred in fact and in law in failing to dismiss the suit and by apportioning 100% liability to the Appellant without considering the circumstances of the case. 2. That the learned trial Magistrate erred in law and in fact in finding in favour of the Respondent against the Appellant when there was totally no credible evidence or proof of negligence on the part of the Appellant. 3. That the learned trial Magistrate erred in fact and in law in failing to consider the Appellant’s submissions on liability by completely disregarding the submissions and authorities of the Appellant and as a result arrived at an unjustified decision on liability. The Appellant prays for the following orders; 1. That the appeal be allowed and the decree of Honourable J. P Nandi (SPM) be set aside. 2. That the Honourable Court be pleased to re-assess the award on liability in view of the evidence tendered and dismiss the trial court suit. 3. That the Appellant be awarded the costs of this Appeal. 3. This being the first appellate court, its duty is to re-evaluate the evidence adduced before the trial court and subject it to an independent analysis so as to arrive at its own conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it neither saw nor heard the witnesses testify and thus to make due allowance for that. See **Selle & Another Vs Associated Motor Boat Co. Ltd [1968] 1 EA 123** where it was held: **“...this court is not bound necessarily to accept the findings of facts by the court below. An appeal to this court from a trial...is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances and probabilities materially to estimate the evidence.”** 4. The record of appeal indicates that the Plaintiff had sued the Defendant vide a plaint dated 2nd December, 2020 seeking general damages, special damages, costs and interest of the suit as a result of a road traffic accident that occurred on the 2/1/2019 along Bondo-Usenge road. The plaintiff averred that she was a pillion passenger aboard motorcycle Registration number KMEA 339E Bajaj Boxer along Bondo- Usenge road when at Heritage Feeds area the defendant’s driver agent and/or employee acting in the ordinary cause of employment, carelessly drove, managed and/or controlled motor vehicle KAN 314A Toyota Corolla that he lost control causing an accident to occur and occasioning the plaintiff multiple severe injuries. The Plaintiff duly pleaded particulars of negligence and injuries sustained and prayed for compensation as well as costs of the suit. On the other hand, the defendant filed defence dated 23rd August, 2022 denying the averments contained in the plaint and attributed negligence on the rider who had ferried the Plaintiff. 5. **Lilian Atieno Omondi (PW1)** adopted her statement dated 10/5/2021 as her evidence in chief. She produced the documents in her list of documents as exhibits. She testified that she was injured on the chest, right knee and thigh, right armpit and dislocation of right shoulder. In proving the said injuries, she produced X-Ray report as exhibit-1, treatment notes from Bondo Sub County Hospital as exhibit-2, treatment chit dated 2/1/2019 as exhibit-3, treatment notes from Wema Health Centre dated 3/1/2019 as exhibit-4, prescription note as exhibit-5(a & b), certificate of postage as exhibit 6, and P3 Form as exhibit-8 which classified the degree of injury as harm. On cross-examination she stated inter alia; that she was a pillion passenger and that the rider was one Evance; that she was going home in the direction of Bondo while the vehicle was from Bondo heading to Usenge direction; that the accident took place on their lane. 6. The parties agreed by consent to have the evidence taken in CC No. E056 of 2021 do apply in the particular case and that the cases were duly closed at that juncture. 7. **No. 240063 Ip Simon Nyandusi (PW2)** testified that he was the base commander Bondo Traffic base. That on 2/1/2019 an accident took place along Bondo-Usenge road involving mv KAN 314A while Toyota Corolla saloon and motorcycle KMEA 339K ridden by one Evance Okoth while the vehicle was driven by Alex Moore . That the vehicle and motorcycle collided and that the rider and his pillion passenger were injured. That the owner of the vehicle was James Kisincha. That the vehicle and motorcycle were moving in the opposite direction. That he did not have any sketch maps showing the party to blame for the accident. The Plaintiff closed her case. 8. The evidence of **Alexander More Okanda (DW2)** in PMCC E056 of 2021 was adopted as the Appellant’s evidence. He testified that he was then the driver of the vehicle. That he blamed the rider of the motorcycle as he did not keep to his left lane and was riding in the wrong side of the road at night. That the vehicle was inspected but did not have the report. That there was no obstruction on his left side into which he could have swerved. That he saw the rider when he was five metres away. That his headlights were on at the time. 9. The trial court later came up with the impugned judgement. 10. The appeal was canvassed by way of written submissions. Both parties duly complied. 11.The Appellant’s submissions mainly dwelt on the aspect of liability as raised in their Memorandum of Appeal. It was submitted that the accident had been caused by the rider of the motorcycle as per the evidence of the Appellant’s driver and thus the trial court fell into error by shifting liability upon the Appellant yet it was actually the rider who moved to the Appellant’s driver’s lane. It was submitted that the appeal be allowed and the judgement be set aside and costs be awarded to the Appellant. 12. The 1st Respondent submitted that the Appellant’s driver did not exercise a proper look out for other road users and thus caused the accident. It was also submitted that the 1st Respondent was a pillion passenger and thus had no control over the way the motorcycle was controlled. It was finally submitted that the trial court duly considered all the principles and arrived at the conclusion that the Appellant should be held 100% liable. The 1st Respondent thus urged the court to dismiss the appeal. 13. I have given due consideration to the record of appeal and the rival submissions. It is not in dispute that the Appellant vide his Memorandum of Appeal has appealed against the issue of liability only and hence the award of general damages is to be left undisturbed. 14. As regards the issue of liability, it emerged from the evidence of the Appellant’s driver and the rider of the motorcycle as well as the police officer that there was a collision at the time and that the accident took place at around 8.00 PM when it was dark. Even though both the Appellant’s driver and the rider traded accusations regarding the culprit of the accident and in view of the fact that no sketch maps were availed by the traffic, it is my considered view that both of them must be held responsible for the accident. The rider and driver were under obligation at all times to observe the Highway Code of traffic. Had they observed the same, the accident could have been avoided. It is in that regard that I hold that the liability ought to have been apportioned in the ratio of 50% to 50%. Even though the 1st Respondent has claimed that she was a pillion passenger and thus had no control in the manner the motorcycle was ridden. However, the 1st Respondent did not see the need to rope in the rider as a co- defendant, while the Appellant also did not seek to enjoin the rider as a third party and seek for indemnity and or contribution over the accident. That being the position, the finding by the trial court on liability was therefore in error and must be interfered with. To that extent, the Appellant’s appeal succeeds. 15. As the Appellant did not appeal against the award of general damages, the same shall remain undisturbed but will be subjected to the eventual percentage of contribution. 15. In the result, it is my finding that the appeal has merit. The same is allowed to the extent that the trial court’s apportionment of liability of 100% be and is hereby set aside and substituted with apportionment of liability in the ratio of 50% to 50% between the Appellant and the motorcycle rider. The award on general damages shall remain undisturbed but will be subjected to the 50% contribution. Each party to bear their own costs of the appeal. **Dated and delivered at Siaya this...........15th ...................day** **of................May ........................2026** **D .KEMEI** **JUDGE** **In the presence of :** **Ms. Ngome .........................................................for Appellant** **Ms. Ojwang for Ms. Oluoch ..............................for 1st Respondent** **NA………………………..........................................2nd Respondent** **Ms. Moureen ......................................Court Assistant**