https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7626

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E114 OF 2024** **DANIEL MUTISYA ………………………………….1ST APPELLANT** **STANLEY MAINA…………………………………...2ND APPELLANT** **ROBERT KANORI KAREGI ……………………... 3RD APPELLANT** ***VERSUS*** **LILIAN TAABU MUVITI …………………………….RESPONDENT** **(***Being an appeal from the judgment and decree of Hon. P. Wechuli (PM) in Kithimani PMCC No. E052 of 2021 delivered on 14th December 2023)* **JUDGMENT** 1. The Appellants herein were found liable to compensate the Respondent for injuries sustained while travelling as a lawful passenger in their motor vehicle Reg. No. KCP 785 X. The accident is said to have occurred along the Matuu – Thika Road, at Kwa Majini area on 23rd January 2021. The respondent attributed the accident to negligence on the part of the 1st appellant who was driving the motor vehicle at the time. 2. Being aggrieved, the appellants preferred this appeal on the following grounds: “(1) ***That the learned magistrate erred in fact and in law by finding that the respondent proved her case to the required standard and thus finding the appellants 100% jointly and severally liable for the accident.*** ***(2) That the learned magistrate erred in law and in fact by finding that the respondent was involved in an accident despite there being no evidence of involvement and thus awarding unwarranted damages.*** ***(3) That the learned magistrate erred in law and in fact by ignoring overwhelming evidence by the appellants that the respondent was not involved in an accident on the material date while travelling in motor vehicle registration No. KCP 785X.*** ***(4) That the learned trial magistrate erred in law and fact by relying on a police abstract whose contents and authenticity was heavily challenged by the appellants in reaching an erroneous finding that the appellants were 100% liable for the accident.*** ***(5) That the learned magistrate erred in law and fact by failing to appreciate the totality of the evidence before him and the submissions on record on liability and authorities filed on behalf of the appellants.”*** 1. At the hearing the respondent testified that she was travelling in motor vehicle Reg. No. KCP 785 X as a lawful fare paying passenger. She stated that as they approached the place where the accident occurred the vehicle wobbled and then crushed into a tuk tuk, registration number KTWC 119 C Paggio which was being driven in the same direction. She stated that as a result of the accident she sustained bodily inquiries. She produced a medical report and a P3 form evidencing the injuries. She also produced a police abstract as proof that the accident occurred. 2. The appellants did not adduce evidence at the hearing. In this appeal, they dispute that the respondent was involved in the accident. 3. The appeal was to be canvassed via written submissions but the appellants did not file theirs. 4. The issue for determination is whether the learned magistrate erred in finding that on 23rd January 2021, the respondent was involved in an accident and for awarding her damages. **Analysis and determination** 1. As a first appellate court, my duty is to subject the evidence in the court below to a fresh scrutiny 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 magistrate. See the case of **Selle & Another vs. Associated Motor Boat Company Ltd. & others [1968] EA 123.** I have also considered the submissions of the learned Counsel for the Respondent, the cases cited and the law. 2. Whereas, the Respondent testified and produced documentary evidence to prove that she was involved in the accident, it is recorded that the appellants did not adduce any evidence. In the premises, they neither proved the averments in the statement of defence nor did they rebut the respondent’s case. The evidence contained in the police abstract juxtaposed with the P3 form and medical report confirm that the accident indeed occurred and that the respondent was involved in it and sustained injuries as a result. 3. It is my finding that the mere exclusion of the respondent’s name from the police abstract cannot be used as proof that she was not involved in the accident without proof that that is indeed so. It was encumbent upon the Appellants to prove that to be so as they were the ones who stood to fail by not adducing the evidence to prove that allegation. See **Section 109 of the Evidence Act** which states: “[**109] Proof of particular fact.** ***The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*** 1. The respondent having proved on a balance of probabilities that she was involved in the accident and there being no evidence to rebut her evidence, I do find as did the learned magistrate, that the appellants were liable to her in negligence. This is upon making a finding that the driver of the vehicle was negligent in the manner he drove the vehicle hence causing it to collide with the tuk tuk. 2. In the premises, I am not persuaded that the learned magistrate misdirected herself. I find no merit in this appeal and it is dismissed. The judgment of the court below on liability and quantum of damages, is upheld. 3. Costs follow the event and as there are no special circumstances, as to warrant this court to depart from that general principle. The costs of the appeal are awarded to the Respondent. Orders accordingly. **Judgment signed, dated and delivered virtually via Microsoft teams on this 28th day of May, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Gichimu for the Respondent Ms Omari for Mulyungi for the Appellant Mary - Court Assistant/Interpreter