https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10399

Ongoma v Rentco Africa Ltd (Civil Appeal E129 of 2024) [2026] KEHC 10399 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 10399 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E129 of 2024 S Mbungi, J July 8, 2026 Between Levius Oloo Ongoma Appellant and Rentco Africa Limited Respondent Judgment 1.This appeal arises from the judgment of the Small Claims Court at Kakamega delivered on 26th June 2024 in Civil Case No. E050 of 2024, wherein the Appellant’s claim was dismissed with no orders as to costs. 2.The Appellant was aggrieved by the said decision and lodged the present appeal challenging both liability and the failure by the trial court to award damages. 3.The Appellant’s case before the trial court was that he was a pillion passenger aboard motorcycle registration number KMFK 689F, which was involved in a road traffic accident with motor vehicle registration number KDG 389C allegedly belonging to the Respondent. 4.He claimed that he sustained injuries as a result of the accident and attributed negligence to the Respondent. 5.The Respondent denied liability and contended that:I.The Appellant was not a pillion passenger at the time of the accident;II.The accident was caused by the motorcyclist;III.There was no negligence attributable to the Respondent. Grounds of Appeal 6.The Appellant challenged the decision on the grounds that:i.The trial court erred in finding that he failed to prove he was a pillion passenger.ii.The trial court failed to properly evaluate the police abstract and witness testimony.iii.The court failed to find the Respondent liable.iv.The court failed to assess damages.v.The decision was against the weight of evidence. 7.This being a first appeal, this court is duty bound to re-evaluate and re-analyse the evidence and reach its own independent conclusion.This principle was set out in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, where the Court stated that a first appellate court must reconsider the evidence and determine whether the conclusions of the trial court should stand. Issues for Determination 8.The issues for are;i.Whether the Appellant proved on a balance of probabilities that he was a pillion passenger.ii.Whether the Respondent was liable for the accident.iii.Whether the trial court erred in failing to assess damages.iv.What orders should issue. Analysis and determination Whether the Appellant proved on a balance of probabilities that he was a pillion passenger. 9.The central issue is whether the Appellant was indeed a pillion passenger at the time of the accident. 10.The Appellant relied heavily on the police abstract, testimony of CW2, testimony of PC Wilson Korir (CW5) and medical treatment records. 11.The police abstract indicated that the Appellant was a pillion passenger. 12.In Kibichi v Mathai [2024] KEHC 4065 (KLR), the court held that a police abstract, unless rebutted, is credible evidence of occurrence and particulars of an accident. However, the evidential value of a police abstract is not conclusive. It must be weighed against other evidence. 13.In the present case, the Respondent produced evidence including the occurrence Book (OB) extract, testimony of RW2 (driver),motor vehicle inspection report, and evidence that the OB did not indicate a pillion passenger. 14.RW2 testified that he did not see any passenger on the motorcycle at the time of the accident.CW5 (police officer) confirmed that the OB did not contain reference to a pillion passenger. 15.The trial court was therefore faced with two competing versions of events.It is trite law that where evidence is contradictory, the court must consider credibility and consistency. In Titus Ngatia Ngari v Kenya Power & Lighting Co. Ltd [2019] eKLR, the court held that documentary inconsistency with primary police records may weaken a claimant’s case where not supported by independent evidence. 16.In this case: The OB (primary record) did not show the Appellant as a passenger; The Respondent’s witnesses consistently denied his presence; Medical records were inconsistent regarding treatment details. 17.The court therefore finds that the trial magistrate properly evaluated the evidence and correctly found that the Appellant failed to prove he was a pillion passenger on a balance of probabilities. Whether the Respondent was liable for the accident. 18.Even assuming the Appellant was a passenger, liability must still be proved. Sections 107 of the Evidence Act is clear on who bears the burden of proof in a trial. Section 107 of the Evidence Act provides thus:(1)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.(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 19.In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991], the court held that negligence must be proved and is never presumed. 20.The Appellant alleged that the Respondent’s vehicle hit the motorcycle from behind. However, evidence on record shows: RW2 testified that the motorcycle veered off and hit the motor vehicle; The motor vehicle inspection report showed damage consistent with a frontal or side impact, not rear impact; CW5 corroborated that the motorcycle hit the motor vehicle. 21.This evidence supports the Respondent’s version, accordingly, the trial court was correct in finding that negligence was not proved against the Respondent. Whether the trial court erred in failing to assess damages 22.It is settled law that even where liability is not proved, courts are encouraged to assess damages in the alternative. 23.In Butt v Khan [1981] KLR 349, the Court of Appeal held that courts should assess damages even where liability is not established. 24.Similarly, in Frida Agwanda & Ezekiel Onduru Okech v Titus Kagichu Mbugua [2015] eKLR, the court stated that failure to assess damages is an error. 25.However, failure to assess damages does not automatically invalidate a judgment where liability has been dismissed. 26.In the present case, the trial court dismissed the claim outright and did not proceed to quantum. While this was not ideal, this court is now obligated to assess damages for completeness. The Appellant sustained soft tissue injuries: Chest injury, Lower back pain, No fractures or permanent disability. 27.Comparable awards include Kimori & Another v Kwamboka (2022) eKLR, where similar injuries attracted modest awards. Considering inflation and comparable precedents, an award of a. Kshs. 80,000/= general damages is reasonable. b. Special damages of Kshs. 6,000/= were pleaded and proved and are awarded. 28.The court finds that the Appellant did not discharge the burden of proof required under the Evidence Act to establish liability against the Respondent. However, in the interests of justice, damages are assessed for completeness. 29.Accordinglyi.The appeal on liability is dismissed.ii.The judgment of the Small Claims Court is upheld on liability.iii.General damages assessed at Kshs. 80,000/=iv.Special damages assessed at Kshs. 6,000/=v.Each party shall bear their own costs of the appeal. 30.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-Ms Chebet holding brief for Okara for Appellant present online.Ms Nishi Pandit for the Respondent present.