https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9706

Magara & 2 others v Liech (Suing as the Personal Representative and Administrator of the Estate of Victor Ochieng Odhiambo Deceased) (Civil Appeal E209 of 2024) [2026] KEHC 9706 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 9706 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E209 of 2024 LM Wachira, J June 26, 2026 Between Aloyce Onyango Magara 1st Appellant Kenya Commercial Bank Limited 2nd Appellant Victor Okoth Onyango 3rd Appellant and Kennedy Odhiambo Liech (Suing as the Personal Representative and Administrator of the Estate of Victor Ochieng Odhiambo Deceased) Respondent (Being an Appeal from the Judgment and decree of Hon. K. Cheruiyot (SPM) delivered on 7th August 2024 in Original Kisumu CMCC No. 170 of 2017) Judgment Introduction 1.This is an Appeal from the Judgment of Hon. K. Cheruiyot delivered in Kisumu CMCC 170 of 2017, where the learned trial Magistrate entered judgment for the plaintiff (Suing as the Personal representative and administrator of the estate of Victor Ochieng Odhiambo (Deceased)) against the 1st and 3rd Defendants jointly and severally on both liability and quantum. 2.The claim related to road traffic accident where the plaintiff had averred that the 3rd Defendant who was the driver of motor vehicle Registration number KCC 142 A, owned by the 1st Defendant, had failed to control the said vehicle and allowed it to veer off the road to the path of the deceased who was a cyclist and knocked him down occasioning fatal injuries. 3.The Plaintiff had sought the following reliefs:-a.General Damages under the Fatal Accident Actb.Special damagesc.Costs of the suit.d.Interest on (a), (b) and (c) above at court rates. 4.The 1st and 3rd Appellants (who were the 1st and 3rd Defendants before the trial court) denied the claim in its entirety and further pleaded negligence on the part of the deceased. 5.Upon considering the parties pleadings, evidence and submissions, the trial court on the 7th August 2024, entered judgment for the Plaintiff (Respondent) as against the Defendants/Appellants as follows:-a.Pain and suffering Kshs. 100,000/=b.Loss of expectation of life Kshs. 100,000/=c.General damages for dependency Kshs. 1,500,000/=d.Special damages Kshs. 160,170/=Total Kshs. 1,860,170/= 6.Aggrieved by the said Judgment, the Appellants have filed the instant Appeal vide a Memorandum of Appeal dated 17th October, 2023 raising (7) grounds of appeal challenging both liability and quantum. Trial Courts Evidence 7.The testimony of the Respondent was that the deceased who was a standard 8 pupil at Mbugra Primary. On the material day, he was cycling along the Kendu Bay - Katito road. The 3rd Defendant was driving motor vehicle registration number KCC 142 A along the said road. 8.PW2 who was the eye witness told court that the vehicle drove past him at a high speed and went and veered off the road to the left and knocked the deceased who was cycling on the foot path about two meters ahead of the witness. PW2 rushed to the scene was among the people who put the deceased to a motor vehicle that was passing along the said road and he was rushed to Nyakach sub District hospital. He was unfortunately pronounced dead at the hospital. 9.PW3 was a police officer attached to Pap Onditi police station where the vehicle was detained for inspection. He produced in court a police Abstract indicating that the driver of KCC 142 A was charged with the offence of Causing death by dangerous driving. He explained that there were two police abstracts, because the accident was reported at Katito police station and the vehicle was detained at Pap Onditi police station. 10.The Appellant had testified in court through the 3rd Defendant. His testimony is that he was driving along the said road, at a slow speed because it was at an area with bumps. He told court that there was a small boy on his left cycling towards Katito while carrying a bag of green grams. The witness told court that after the first bump, he saw the small boy turn to glance back and it is then that he (the boy) lost control and veered towards the right and collided with the left side of the vehicle. The witness told court that he stopped and alighted, but a crowd of cyclists gathered and fearing for his life, he left and went to Pap Onditi police station where he reported the accident. He was then referred to Katito where he went and again reported and went with officers to the scene and they did their investigations. The witness attributed the accident to the deceased losing control of the bicycle after he glanced backwards. The witness told court that he was charged with the offence of causing death by dangerous driving and was later acquitted. 11.After the full hearing the court found the 1st and 3rd Defendants jointly and severally liable for the fatal injuries suffered by the deceased and entered judgment for the Plaintiff against the Defendants/Appellants. 12.The appellants dissatisfied with this finding have preferred the appeal herein on both liability and quantum and listed the grounds as summarized below: -a.The learned trial Magistrate erred in law and in fact in failing to properly apply the correct principles of law to the evidence on record in apportioning liability.b.The learned trial Magistrate erred in law and in fact in failing to properly apply the correct principles of law to the evidence on record in the assessment of damages payable to the Respondent. Appellants Submissions 13.The Appellant submitted that the trial court failed to properly analyze the evidence on record and came to a wrong finding in terms of liability. That in deciding the question of negligence, the court held that the 3rd Defendant was driving at a high speed and submitted that a high speed, per se, is not evidence of negligence. The evidence of speed was given by PW2, the eye witness, who simply said the vehicle passed him at a high speed. 14.The Appellant submits that the DW1’s evidence on this particular issue of speed was completely ignored by the court. The DW1 had testified that he was driving slowly, and that he was going over bumps at Kolweny. That he was approaching the second bump when he saw the deceased cycling a bicycle going towards the same direction. After going over the 2nd bump, the deceased lost control of the bicycle, veered to the right of the road and collided with the left side of his vehicle. The deceased fell on the tarmac at the edge of the road. 15.Counsel submitted that had the trial court weighed the evidence of DW1 with that of PW2, it would have reached a different conclusion on the issue of speed because it is unlikely that a vehicle, going over bumps, would be at a very high speed. 16.The Appellant also submitted that the PW2 testified that the vehicle had passed him stating that it was unlikely that he being behind a canter lorry that had passed him; would be able to see the happenings in front of the lorry. That PW2 gave the wrong number of the motor vehicle as KCA 142A instead of the correct one KCC 142A and further that the accident occurred 4:00 pm, while DW1 had testified that it occurred at about 12.00 noon, which testimony was corroborated by the police abstract which showed accident was at 12:00 noon and the post mortem examination report that showed the time of death as 12:30pm. Counsel submitted that the evidence by PW2 should have been carefully considered and treated with caution, which the trial court failed to. 17.It is the Appellants submission that these inconsistences were material and made the witness unreliable and such evidence should not have been relied upon to apportion negligence on the Defendants at 100%. 18.Counsel submitted that the trial Magistrate did not give reasons why he preferred the evidence of the PW2 against that of the DW1 and did not give any reasons for his decision. The Appellant cited the provisions of Order 21 Rule 4 which he argued gives no room for discretion or choice. He submitted that the law presupposes that in every judgment, reasons must be given as to why that decision has been reached by the judicial officer and where it is found that there were no reasons given as to why the decision made by the judicial officer was reached, then that decision must be re-looked into. He submitted that the trial Magistrate violated this cardinal rule of the Civil Procedure and this warrants this court to interfere with the trial court’s orders. 19.Counsel Submitted that with the inconsistencies in the Respondent’s case, liability had not been established and the Court should interfere with the finding of the trial court and dismiss the Respondent’s suit against the Defendants. 20.On quantum the Appellant abandoned this head in its submissions and submitted that the Respondent had pleaded and proved that the deceased was a 15-year-old school child in primary school. That he was KCPE Candidate and his school Assessment Report book showed he was position one in his class. That although the trial Magistrate simply awarded Kshs.1,500.00/- without giving any reason for doing so, or what the amount was based on, the Appellant had considered current trends in decided cases of deceased students about the deceased's age and found that the High Court's awards range between Kshs.1,300,00/- and Kshs.2,000,000/-. They thus considered that Kshs.1,500,000/- for loss of dependency for a 15-year-old deceased was within the acceptable limits. Respondent’s Submissions 21.The Respondent submitted that it is the Appellants who by themselves, their driver, servant and/or agent who negligently managed Motor Vehicle Registration No KCC 142A and caused the same to lose control, veer off the road and knock down the deceased. The Respondent relied on the particulars of the negligence that had been set out in the plaint. 22.He submitted that PW2 the eye witness had confirmed that it is the Motor Vehicle Reg. No KCC 142A that sped past him and lost control a few meters ahead causing the said vehicle to veer off the road and it knocked down the deceased from behind. Counsel submitted that his testimony should be given weight given that he was at the scene and he carried the deceased with the help of other people to a passing vehicle which took him to Nyakach Sub County Hospital. 23.Counsel submitted that the version of the Appellant’s that it is the deceased who veered to the right and collided with the vehicle is untenable because the 3rd Appellant’s claim that the deceased was carrying a big sack of green grams was not supported by any evidence at all and PW2 had effectively dispelled this allegation in his testimony by maintaining that the deceased was not carrying any load. 24.The Respondent submitted that the 3rd Appellant failed to adduce any evidence to corroborate his assertion that it was the deceased who veered into his lane and caused the collision, stating that the testimony of PW2 was corroborated by the police abstract produced by PW3 which placed blame squarely on the 3rd Appellant and indicated that he was charged with the offence of causing death by careless driving. 25.Counsel relied on the case of Orioki v Kevian Kenya Limited 2025 KECA 780 KLR where the Court of Appeal in upholding the High Court’s apportionment of liability at 100% against the Appellant pronounced itself thus: “The police abstract, though not conclusive, supported the finding that the appellant’s actions caused the accident. In this case, the appellant failed to adduce any compelling evidence to counter the police abstract or to disprove the causal link between his actions and the damage” 26.The Respondent submitted on the certificate of examination of the motor vehicle and stated that the damage was concentrated on the near-side (N/S) front of the vehicle, which pattern of damage is inconsistent with a side or angled collision that would be expected if the deceased had veered into the vehicle’s path. Instead, the concentration of damage at the front, extending upwards to the windscreen and body pillar supports the inference that the cyclist was directly ahead of the vehicle at the time of impact and was hit from behind. He stated that the testimony of the DW1 was suspicious and the court should not interfere with the finding on liability by the trial court. Analysis and Determination 27.This being a first appeal, it is the duty of the court to re-evaluate and assess the evidence bearing in mind that it is the trial court that had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This was the guidance given in Peters vs Sunday Post Limited [1958] EA 424, where the court therein rendered itself thus: -“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. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. 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…” 28.With that mandate in my mind, and in view of the grounds of Appeal and the submissions by the parties, I will frame only one issue, as follows:-a.Whether the learned trial Magistrate properly applied the correct principles of law to the evidence on record in apportioning liability. 29.There is no dispute that the accident involving the deceased and the 1st Defendant’s motor vehicle Registration No KCC 142A took place on the 4th October, 2015. This is evidenced by the police abstract that was produced in court by PW3. 30.The only issue is who was to blame. The Appellant blames the Respodents for the accident and the Respondents blame the Appellant. I have considered the two versions given by the parties on how the accident occurred. I have also considered the pleadings, and submissions by the parties in regard to the question of liability. 31.PW2 told court that he was at the scene and witnessed the accident and he is one of the people who helped in putting the deceased into a vehicle to be taken to hospital. However, his testimony is that the vehicle had passed him at a high speed and the deceased was just 2 (two) meters ahead of him. I take cognizance of the size of a Mitsubishi canter. The said vehicle is more that 2 meters in length. So that if the distances given by PW2 are the correct position, then the front side of the vehicle, including the windscreen of the vehicle had already passed the deceased, if indeed he was only two meters in front of PW2. 32.Secondly, from the motor vehicle inspection report produced in court, the damage of the vehicle was concentrated to the front nearside of the vehicle. Going by the damage as indicated on the motor vehicle inspection report, then it would not be correct to state that the deceased was just 2 meters ahead of the PW2. If that were to be the case, the damages would be at the middle left side of the vehicle, which is not the scenario herein. Going by the inspection report, the more likely scenario is that the collision between the deceased and the motor vehicle was from the front part, and therefore further than 2 meters from the witness. 33.The Respondent has similarly submitted on the point of collision and stated that the version of PW2 that DW1 knocked the deceased while he was ahead of him is the correct version. My view is that this is not necessarily correct because the damage is more on the left nearside. If the impact was entirely from the front of the vehicle, there would be no damages to the vehicle on the left side. It would be the front of the vehicle which is majorly the windscreen and front parts. So that the cited authority in Muindu vs Kinyanjui & another (Civil Appeal E032 of 2022) [2024] KEHC 3157 (KLR) is not relevant in the scenario herein. 34.Further, the testimony of PW2 was that the vehicle was at a high speed. That it passed him then veered off the road and knocked the deceased who was cycling off the road. However, evidence on record is that upon impact the deceased settled at the edge of the road. Clearly this would mean that the point of impact was within the road and not off the road as suggested by the PW2. 35.The further testimony of PW2 who is the star witness, at cross examination, is that the time of the accident was 4:00pm. Again, this appears not consistent with the pleadings, the police abstract and the post mortem report that the accident occurred at 12:00pm, creating doubts on whether the witness was credible enough. 36.My finding is that PW2 was not consistent in court in his testimony on the distances, the time of the occurrence of the accident and even the registration plate of the 1st Defendant’s motor vehicle and that would make his testimony unreliable. Although I am aware that minor discrepancies may not vitiate liability, 4:00pm is not at all close to 12:00 noon. In the circumstances, I find that the trial court erred in not considering the inconsistencies in the testimony of PW2 and entirely relying on it to apportion liability at 100% against the Respodents. In the case of MI'Ituamka M'Marambei (Suing as the legal representative of the Estate of Peter Miriti vs Board of Management Miathene High School [2020] KEHC 1536 (KLR), the court stated that an inconsistent witness is unreliable and stated thus: -“But DW 1 seems to allege that the deceased had been lying on the road drunk and may have been ran over by other vehicles as he found him already in the ditch. He however stated that he had stopped to see what was happening and that when he started off, the people who had gathered there started to pelt the bus with stones forcing him to stop again. He kept on changing his story: at other times he stated that his bus was not pelted with stones. He also was not clear how and why police took custody of the bus. He simply stated that when the police came to take the body, they asked him to drop the students and return the vehicle to the station”. 37.On the submissions by the Respondent that the police abstract blames the Appellants, a police abstract is only proof of occurrence of an accident. Unless the officer had carried out investigations and blamed the Appellant, then it would not be correct to state that the police abstract was evidence of negligence. Even in the cited decision of Orioki vs Kevian Kenya Limited 2025 KECA 780 KLR the court begun by stating that “The police abstract, though not conclusive…..” This would mean that a police abstract is not conclusive evidence of negligence, and its contents have to be supported by other relevant evidence. In any event, in the instant case, the Appellant submitted that he was tried for the offence of causing death by dangerous driving and was acquitted. It would therefore be unfair for the court to use the said abstract to presuppose negligence. 38.I have considered the decision of the trial court while apportioning liability and although the Appellant submits that the court did not give a reason, the court had stated as follows:-“clearly the eye witness account demonstrates that the 3rd Defendant was driving at a high speed, that even after seeing the deceased the 3rd Defendant could not manage or control the vehicle since he was driving at a high speed as narrated PW2. In the circumstances, I find and hold that the 3rd Defendant caused the accident through his negligence as a result of which the deceased lost his life". 39.The trial Magistrate apportioned liability because in his view the testimony of the PW2 was clear and it demonstrated that the Appellant was negligent. So that the argument by the Appellant that the trial Magistrate did not give reasons for apportionment of liability may not stand. 40.However, there are submissions that the trial Magistrate did not consider the Appellants testimony in court and did not give any reason why he preferred the evidence of PW2. I have considered the decision of the trial court and at no point did the court refer to the testimony of DW1 to discredit it or state why it was not believable. This was contrary to Order 21 Rule 4 Civil Procedure Rules, which is couched in mandatory terms and does not allow judges and judicial officers any discretion. In the case of Kenya Orient Insurance Limited v Barasa [2025] KEHC 3961 (KLR), the High Court allowed an appeal where the trial court had ignored and failed to consider the Appellant's witness's evidence without any reason stating as follows:-“The appellant devoted a significant part of its submissions on the structure of the judgement of the trial court, around identification of issues, analysis of the evidence and assigning reasons to the determinations made. These are required by Order 21 Rule 4 of the Civil Procedure Rules. Of course, a decision by a court should not be vitiated merely on account of non-compliance with these provisions, for the court may not comply with them, but still come to a determination which is sound, looked at from the perspective of the evidence recorded. 41.I find that the had the trial court considered the testimony of DW1, it would probably have come to a different finding on the question of liability. 42.And having reviewed the testimony of PW2 and that of DW2, I find that it is clear both parties had contributed to the occurrence of the accident. It is clear that the point of impact was on the tarmac and not off the road as testified by PW2, meaning that the deceased was cycling on the road therefore endangering his life. Indeed, this is admitted by the Respondent in his submission that the final resting point was on the tarmac. 43.It is also clear that the DW1 saw the deceased prior to the impact, but did not at all swerve or control the vehicle to avoid the accident. This could lend credence to the testimony that DW1 was at a speed and that is why he could not manage to control the vehicle and avoid the collision. As the person who was in charge of a vehicle, the DW1 owed a duty of care to other road users to drive or control the vehicle in a manner that did not endanger their lives. Specifically, he owed even a greater duty of care to the deceased, having already seen him on the road and having realized that he is a child as he confirmed to the trial court. In the case of Francis K. Righa v Mary Njeri (suing as the Legal Representative of the Estate of James Kariuki Nganga) [2014] eKLR, the Court emphasized the heightened duty of care imposed on drivers of motor vehicles by holding that: “I agree with the submission by the respondent that the appellant, as the driver of a motor vehicle, owed a greater duty of care than the cyclist to look out for other road users. This is so because he had under his control a more lethal machine than the bicycle”. 44.Further, evidence on record indicates that the deceased died almost immediately after the accident. This would mean that the impact was at a high speed, which would be attributed to the vehicle driven by DW1, which is an engine as correctly submitted by the Respondent when he cited the case of Yusuf another v Kalota another (Civil Appeal E036 of 2022) 2025KEHC9402(KLR) where it stated that: “…the vehicle inspection report on record showing that the motor vehicle sustained a dent from the impact, plus the fact that the deceased died on the spot draws the conclusion that DW1 was not driving at a moderate speed. 45.And considering the full circumstances of the case including the fact that the deceased was a minor, I will apportion liability between the 1st and 3rd Appellants on one hand and the Respondent on the other at the ratio of 80:20 against the Appellants. I say this while aware of the submission by appellants that if there is no clear evidence, the court can apportion liability equally, but I find that this is not a case of equal distribution because the circumstances point to the likely scenario on how the accident is likely to have occurred, and who would shoulder more blame than the other. And with that scenario, the court is able to appropriately apportion liability. 46.In conclusion, I wish to reiterate that I have in mind the special circumstances under which an appellate court is allowed to interfere with the discretion of the trial court and I find that this is one of such circumstances, having pointed out the miscarriage of justice occasioned by the court failing to consider the testimony of the DW1. 47.In conclusion, I find that the Appeal herein partially succeeds in that the finding of the trial Court on the liability is set aside and, in its place, this court assesses liability at the ratio of 80:20 against the 1st and 3rd Defendants jointly and severally. The Appeal on quantum was abandoned and therefore remains as was assessed by the trial court, so that 80% of Kshs.1,860,170/- is Kshs.1,488,136/-. 48.In view of the fact that the Appellant abandoned the Appeal on quantum and the fact that the appeal on liability has not entirely succeeded, I will direct that each party bears its own costs on this Appeal. The costs at the lower court will go to the Plaintiff/Respondent. 49.Orders Accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the Presence of:Leadys –Court assistantMiss Barasa for the Appellant.Miss Nyagora -for the Respondent.Miss Barasa - I seek stay for 30 daysMiss Nyangora – No objectionCourt - Stay is granted for 30 days as prayed.