Makenzi v Thiga (Civil Appeal E027 of 2025) [2026] KEHC 7627 (KLR) (28 May 2026) (Judgment)

Makenzi v Thiga (Civil Appeal E027 of 2025) [2026] KEHC 7627 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7627 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E027 of 2025 EN Maina, J May 28, 2026 Between Mercy Muthei Makenzi Appellant and David Wainaina Thiga Respondent (Being an appeal against the judgment and decree of Hon. Silas Kemei Kandie (RM) at Mavoko Chief Magistrate’s Court in CMCC No.E390 of 2022 delivered on 12th February 2024) Judgment 1.The Appellant herein was the Plaintiff in the court below. Her claim was for compensation for personal injuries sustained following a collision between a motor vehicle Reg. No. KBT 276J belonging to the respondent and a motor cycle Reg. No. KMFM 636 M in which she was lawfully travelling as a fare paying passenger. In the course of the proceedings, the respondent took out third party proceedings against the rider of the motor cycle. The rider/owner of the motor cycle did not enter appearance and after hearing and considering the evidence the learned magistrate in the court below, found the third party wholly to blame for the accident and awarded damages to the appellant as against the third party. 2.Being aggrieved, the appellant preferred this appeal on the following grounds:“(1)That the learned trial magistrate erred in law and in fact by giving more credence to the evidence of the respondent and wholly misapprehending the evidence of the appellant when reaching the impugned decision on liability.(2)That the learned trial magistrate erred in law and in fact by not appreciating that failure by the respondent to take directions as expressly provided under the Civil Procedure Rules, 2010 deems him to have abandoned his claim against the said 3rd party.(3)That the learned trial magistrate erred in law and in fact by apportioning liability against the 3rd party at 100% without satisfying itself that there was a proper question to be tried on liability of the 3rd party to the defendant as no summons for directions were ever taken by the defendant(4)That the learned trial magistrate erred in law and in fact in failing to apply the legal principles applicable hence making an erroneous finding concerning the third party.(5)That the learned trial magistrate erred in law and in fact by failing to determine the real issues before him.(6)That the learned trial magistrate erred in law and in fact by applying wrong principles of the law and thus arrived at a wrong conclusion on the issue of liability.” 3.The parties both testified and called witnesses in the court below. The appellant testified that she was riding the motor cycle as a passenger when it was hit by the motor vehicle at the rear causing her to suffer injuries. She called a police officer who produced a police abstract which confirmed the accident occurred at the time and place and involving the said motor vehicle and the motor cycle. She was however not the investigating officer and was not in a position to give further details. 4.The driver of the motor vehicle one James Muigai, testified that he was the driver of motor vehicle Reg. No. KBT 276 J; that he was driving on the inner lane when he was rammed at the rear by the motor cycle, causing the rider and the pillion passenger to be thrown off. He blamed the rider of the motor cycle for the accident. He called a police officer who testified that the accident occurred at about 6 p.m; that the motor vehicle and the motor cycle were headed in the same direction but that at the point of the accident the rider failed to keep his distance and hence rammed the motor vehicle at the rear. 5.The owner of the motor cycle did not testify and did not participate in this appeal. 6.Whereas this court gave direction that this appeal would be canvassed by way of written submissions, and both sides were duly notified, only the Appellant’s submissions were received. She is represented by the firm of Waiganjo Wachira & Co, Advocates. Analysis and determination 7.From the grounds of the appeal and submissions on record, the issue that arises for determination is whether the learned magistrate erred in finding the third party liable hence entering judgment for the appellant against the third party instead of the defendant against who the claim was made. 8.My role as the first appellate court is to reconsider and evaluate the evidence in the court below so as to arrive at my own independent conclusion while keeping in mind that I did not see or hear the witnesses as did the learned magistrate and make provision for that (see the case of Selle & Another vs. Associated Motor Boat Company Ltd. & others [1968] EA 123. 9.From the evidence in the court below, there were two conflicting accounts of how the accident occurred. The first one was by the appellant and was to the effect that it is the motor vehicle which hit the motor cycle at the rear. The Respondent however called a witness who blamed the motor cycle for ramming the vehicle at the rear. There was no independent witness because the two officers who were called by either side were neither eye witnesses nor did they investigate the accident. None claimed to have visited the scene of the accident. This court cannot therefore attach more probative value to their evidence save to find that it confirmed the fact that the accident occurred. The respondent did however adduce photographs which proved that the vehicle was damaged on the right tail lamp hence lending credence to his evidence that the motor cycle rammed the motor vehicle at the rear. In the absence of any evidence to rebut that contained in those photographs, the only logical conclusion is that the rider of the motor cycle was negligent. I do not agree with learned counsel for the appellant, that negligence was proved as against the driver of the motor vehicle. The fact that the police abstract produced by the appellant indicated the accident was still under investigation and so did not blame the rider does not absolve the rider from blame. As I have stated the police abstracts, other than confirming that the accident occurred on the day, time and place and that it was reported to that police station, can never be used to apportion liability. Blame worthiness or liability is a matter of evidence. This conclusion finds support in the case of Kenney Nyangoya v Bash Hauliers [2016] KEHC 2616 (KLR) where the court stated:“Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it. Another shortcoming in the appellant's case was the unexplained failure to call the Driver who was driving the matatu at the time of the accident. The said Driver could have shed light on how the accident happened, thus assist the Court in determining who was liable for the said accident.” 10.As earlier stated, the respondent adduced evidence by way of photographs which prove on a balance of probabilities that the motor cycle rider was to blame. The Appellant did not adduce evidence to rebut the evidence in those photographs. I am not therefore persuaded that the learned magistrate misdirected himself in arriving at the conclusion that the motor cycle rider was negligent but that there was no evidence to attribute negligence to the respondent. In such a scenario the motor cycle was wholly liable despite that he did not enter appearance as a third party. There is no decree that can be entered against the respondent as the maxim that “there can be no liability without proof” rings very true in this case. The only course open to the court is to dismiss the case against the defendant and leave the plaintiff to pursue the third party to satisfy the decree. To hold the respondent liable for an accident he did not cause or contribute to would be unjust. It is also unjust for a party to pursue the owner of the motor vehicle rather than of the motor cycle which was at fault, simply because the owner of the motor vehicle is a in a better position to compensate them. 11.The upshot is that this appeal has no merit and the same is dismissed with costs to the respondent.Orders accordingly. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 28TH DAY OF MAY, 2026.E. N. MAINAJUDGEIn the presence of:Ms Wachira for RespondentMr. Kiptanui for Waiganjo for AppellantMary - Court Assistant/Interpreter