https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9381

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CIVIL APPEAL NO. E038 OF 2024** MICHAEL IRERI MBAKA……………………….APPELLANT VERSUS WILFRED KIRIMI MUTURI………………1ST RESPONDENT NICHOLAS K. MBUBA…………………..2ND RESPONDENT (*Being an Appeal against the judgement and decree of Hon. Oscar Kinyua (R.M) in Chuka CMCC. No. E018 of 2024 delivered on 24th October, 2024.)* **JUDGEMENT** 1. This Appeal arises from the judgment and decree of Hon. Kinyua (RM) delivered on 24th October 2024 in Chuka Small Claims Court Case No. E018 of 2024. 2. The Claimant (Appellant herein) sued the Respondent’s vide a statement of claim dated 12th July 2024 seeking compensation for loss or damage to property which occurred on or about 13th July 2021 valued at Kshs. 313,792. 3. The Claimant’s case was that on about 13th July 2021 while the Claimant’s authorized driver was driving motor vehicle registration number KCS 544P along Chuka-Kibugua Road at Kibugua area, the Respondents, their authorized agent, driver and/or servants so negligently and recklessly drove/controlled and/or managed the motor vehicle registration number KAP 042X that he/she caused it to hit motor vehicle registration number KCS 544P thereby extensively damaging it. The Claimant attributed the accident to the Respondents’ negligence whose particulars of negligence are particularised as follows: - 4. Driving motor vehicle registration number KAP 042X without due care to other motorists. 5. Failing to stop or apply brakes to avoid the said accident. 6. Driving in a manner that in the circumstances was careless and in breach of his duty of care to the Claimant. 7. Failing to maintain a proper lookout or in any other way manage and/or control the said motor vehicle so as to avoid the accident. 8. Failing to swerve, apply brakes or act in any other way to control motor vehicle registration number KAP 042X. 9. Driving in a speed that was excessive in the circumstances of the case. 10. Subjecting the Claimant to risk of danger of which he knew of. 11. Causing the accident. 12. The 1st Respondent was struck out of the proceeding’s in a ruling dated 11th September 2024 13. The 2nd Respondent filed a response to the statement of claim dated 30th July 2024. The Respondents denied the Claimant’s claim and in particular the part attributing negligence. The Respondents averred that if such accident occurred, negligence was attributable to the Claimant. 14. The matter proceeded for hearing with five witnesses testifying for the Claimant and one witness testifying for the Respondent. Judgment was entered in favour of the Respondent when the court dismissed the Claimant’s claim. 15. Dissatisfied with the judgment, the Appellant lodged the Appeal on the following grounds: - 16. That the learned trial adjudicator erred in law by dismissing the Claimant’s claim for want of proof of negligence without properly evaluating the expert evidence provided particularly the police abstract and report attributing fault to the Respondent. 17. The learned trial magistrate erred in law by disregarding the standard of proof required in civil claims and by imposing an unduly high threshold for establishing negligence, resulting in a miscarriage of justice against the Claimant. 18. The learned trial magistrate failed to apply the principles of negligence and causation appropriately by not factoring in the expert police evidence, which directly attributed blame to the Respondent, thus reaching a conclusion against the weight of the evidence. 19. The learned trial magistrate erred in law and assessment and analysis of evidence by overlooking material aspects of the Claimant’s evidence, including corroborating witness testimony and assessment report, which collectively supported a finding of negligence against the Respondent. 20. The learned trial magistrate erred in law and overstepped its discretion by dismissing the claim and/or failing to apportion liability despite finding that there were two versions of the evidence regarding the accident contrary to trending case law that where there are two versions as to how a cause of action arose blame should be apportioned equally. 21. The learned trial magistrate’s failure to address the Claimant’s right to a fair hearing and ultimately led to a miscarriage of justice. 22. The honourable magistrate’s judgment as a whole is a departure from established legal principles of negligence and causation. 23. As a first appellate court, this Court is duty bound to revisit, reassess, and analyse the entire body of evidence on record and draw its own independent conclusions. In undertaking that exercise, the Court must remain cognisant of the fact that it did not have the advantage of seeing or hearing the witnesses testify, while carefully examining the record to ascertain whether the trial court’s findings were grounded in the evidence presented. This duty was restated by the Court of Appeal in the case of **Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)** as thus: - **“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court 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 allowances in this respect.”** 1. The Appeal was canvassed by way of written submissions. The Appellant raised the following issues for determination: - 2. Whether the trial magistrate erred in law by finding the Appellant’s evidence was not sufficient to prove liability hence dismissing the Appellant’s suit. 3. Whether the learned trial magistrate’s judgment should be set aside and this court proceed to determine the issue on quantum. 4. How should costs be apportioned. 5. The Appellant submitted that the trial court overlooked critical aspects of the Claimant’s evidence while unjustifiably elevating uncorroborated evidence and self-serving testimony by the Respondent. 6. He submitted that the evidence of CW2 who had conducted investigations was of value as his conclusions were captured in the police abstract. He relied on the case of **Fredrick Odongo Otieno v Al-Husnain Motors Ltd [2020] eKLR** that a police abstract may not prove the occurrence of the accident but it confirms that police took cognisance of the accident and carried out investigations which inform the allocation of blame. 7. It was his submission that pursuant to the police abstract, the driver of motor vehicle KAP 042X was to blame for the accident which finding was not controverted. 8. The Appellant further submitted that CW1’s testimony was that the Respondent’s motor vehicle joined the main road from a feeder road without due care and collided without due care and collided with his vehicle which evidence remained consistent. That from the Respondent’s explanation that the Claimant’s vehicle swerved to avoid a pothole was not corroborated. 9. It was submitted that the Respondent did not demonstrate the alleged contributory negligence by the Appellant falling short of the finding in **David Musafiri Kulova v Chabhadiya Enterprises Ltd [2020] eKLR** where the court found that the Respondents did not adduce evidence in the case therefore their pleadings remained mere statements of facts that were not substantiated. 10. The Appellant also submitted that even if the trial court were to find both drivers liable the lowest Respondent’s liability could be 50 % consistent with the Court of Appeal decision in **Hussein Farah v Lento Agencies [2006] eKLR** where conflicting versions led the court to apportion liability equally. 11. The 2nd Respondent filed written submissions dated 31st October 2025 raising one issue for determination whether the Appellant proved his case on a balance of probabilities as required by the law. 12. The 2nd Respondent submitted that the burden of proof lay with the Appellant as stated in the cases of **Patrick Omutere v Accurate Steel Mills Limited [2019] KEHC 499 (KLR and Lochab Transport Limited v Teresia Wangari & Another (Personal Representatives of the Estate of the late Isaac Macharia Mutunga) [2017] KEHC 264 (KLR).** 13. The 2nd Respondent further submitted that from the witness statements of Peter Mwenda Mbaka and Nyaga Jonathan who were eye witnesses, the driver of motor vehicle KCS 544P was to blame for the accident. That the Appellant relied on the police abstract which the 2nd Respondent challenged as not sufficient to prove negligence as was held in the case of **Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & Another [2022] KEHC 2664 (KLR).** 14. It was also submitted that the parties entered into a gentleman’s agreement at the scene that each party bears the costs of repairs and no party would pursue any claims against each other in respect to the accident. He cited the case of **John Ndegwa Maina & 11 others v John Ndungú Mwaura & Another [2020] KEELC 2311 (KLR).** 15. The 2nd Respondent urged the court to dismiss the Appeal. 16. I have analysed the grounds set out on the Memorandum of appeal and the submissions by the parties and find the following issues for determination: - 17. Whether the Appellant Proved her case to the required threshold. 18. Whether the judgment of the trial court should be set aside. 19. **Whether the Appellant proved his case to the required standard.** 20. It is trite that there is no liability without fault, and a plaintiff alleging negligence must prove some fault on the part of the defendant; mere occurrence of an accident does not, without more, establish negligence. This was affirmed by the Court of Appeal in **Kiema Mutuku v Kenya Cargo Hauling Services Ltd** **[1991] 2 KAR 258**, where the Court held that there is as yet no liability without fault in our legal system, and a plaintiff must prove some negligence against the defendant where the claim is founded on negligence. 21. The standard to which that fault must be proved in a civil claim is the balance of probabilities. The Court of Appeal, in **Palace Investments Ltd v Geoffrey Kariuki Mwenda & another** [**2015] eKLR,** explained that proof on a balance of probabilities means a win, however narrow, and that a draw is not enough; where a tribunal cannot decide which version of events to accept because both parties' accounts are equally convincing or unconvincing, the party bearing the burden of proof will lose, since the requisite standard will not have been attained. That formulation is instructive in the present matter, where the trial court was confronted with two materially conflicting accounts of the accident. 22. The Appellant called five witnesses, including CW1, the driver of motor vehicle KCS 544P, and CW2, an investigating officer whose findings were captured in a police abstract attributing fault to the driver of motor vehicle KAP 042X. The Respondent called one witness, supported by statements from two further eyewitnesses, attributing fault to the driver of motor vehicle KCS 544P. Having re-evaluated the record, I find that neither account was so independently corroborated by physical or documentary evidence, such as a sketch plan or point-of-impact analysis, as to allow a confident preference of one version over the other. 23. The trial court's task, applying the principle in **Palace Investments** (supra), was to determine whether either party's account was sufficiently more probable than the other. I find, on a fresh evaluation of the record, that the Appellant's account, while supported by a police abstract, was contradicted by two eyewitnesses called by the Respondent, and the Respondent's account was equally uncorroborated by any independent physical evidence displacing the abstract entirely. Where, applying **Kiema Mutuku** (supra), the existence of fault on the part of the Respondent's driver could not be conclusively established to the exclusion of fault on the Appellant's own driver, the correct legal consequence is not an outright dismissal of the claim, but a finding that both parties contributed to the occurrence of the accident. 24. As to the "gentleman's agreement" relied upon by the 2nd Respondent as a complete bar to the claim, no documentary or independently corroborated evidence was placed before the trial court establishing its existence or terms, beyond the Respondent's own assertion. An uncorroborated assertion of this nature, where it is relied upon to extinguish a party's cause of action entirely, falls short of the standard of proof required, and I find that it does not operate to bar the Appellant's claim. 1. **Whether the judgment of the trial court should be set aside** 25. Where two conflicting versions of how a road accident occurred are placed before a court, and neither party is able to establish the fault of the other to the exclusion of fault on their own part, liability is apportioned equally between the parties. This principle was applied by the Court of Appeal in **Barclay-Steward Limited & another v Waiyaki** **[1982-88] 1 KAR 1118**, where the Court held that as neither side could establish the fault of the opposite party, liability for the accident lay equally on both drivers, who were held equally to blame. 26. I am mindful that an apportionment of liability made by a trial court should not ordinarily be disturbed on appeal save where there is an error in principle or the apportionment is manifestly erroneous. In this instance, however, the trial court made no apportionment at all, it dismissed the suit in its entirety on a finding that the Appellant had failed to prove his case. As shown by the evidence before the trial court, it was not clear who was at fault. In my considered view both parties were to blame. 27. Having found that neither party established the other's fault to the exclusion of their own, I find that the trial court erred in dismissing the Appellant's claim outright, and that the proper course is to set aside that finding and substitute it with a finding of equal liability. 28. On quantum, the trial court, having dismissed the claim on liability, stated that had the claim been successful, it would have awarded Kshs. 313,792. I have no reason to depart from such assessment. **Disposition** 1. For the foregoing reasons, the Appeal is allowed in the following terms:- 1. The judgment and decree of the trial court delivered on 24th October 2024 dismissing the Claimant's claim is hereby set aside. 2. In its place, liability for the accident of 13th July 2021 is hereby apportioned equally at 50:50 between the Appellant and the 2nd Respondent. 3. The trial court’s assessment that it would have awarded 313,792 should the claim have succeeded is upheld and I so award. 4. The appeal having partially succeeded each party shall bear their costs in the appeal. Orders accordingly. **Judgement delivered, dated and signed at Chuka this 30th day of June, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Judgement delivered in the presence of Mr. Murimi for the Appellant, and no appearance for the Respondent; Muriuki (Court Assistant).**