https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7096

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NUMBER **E302** OF 2024 DANIEL MUTISYA…………………………………….........1ST APPELLANT STANLEY MAINA…………………………………………..2ND APPELLANT ROBERT KANORI KAREGI…………………………….…..3RD APPELLANT VERSUS WAMBUA MUSYOKA………………………………...…........RESPONDENT ***(An appeal from judgment and decree in the Senior Principal Magistrate’s Court at Kithimani (Hon. P. Wechuli PM) civil case E053 of 2021 dated 21-03-2024)*** **JUDGMENT** The respondent pleaded in his suit before the lower court that on 23-01-2021 at around 7.00 pm, he was travelling in a tuk tuk registration number KTWC 119C along Matuu-Thika road when at a place known as Kwa Majini, motor vehicle registration number KCP 785X was driven negligently and as a result collided with the tuk tuk in consequence of which he sustained injuries. He sued the appellants as the owners of the motor vehicle for compensation for the injuries he sustained for which the court awarded damages as follows after entering judgment on liability at 100 per cent; 1. General damages Kshs 250,000.00 2. Special damages Kshs 5,850.00 The appellants have approached this with memorandum of appeal dated 19th November 2024 court seeking to overturn the judgment of the trial court setting out 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 per cent 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 as a passenger 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 per cent 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. This appeal was disposed of by way of written submissions the appellants having filed their submissions dated 17th November 2025 while the respondent filed his dated 28th January 2026. I have noted from the submissions of the respondent that, he has raised issue with the appellants making submissions on quantum since the appeal did not challenge the quantum. Reading of the ground of appeal reproduced above, I agree with the respondent that the appellants are not allowed to submit on quantum because none of the 5 grounds have sought to upset the decision on quantum. The appellant has not sought the leave of this court to address it on grounds which are not covered in the memorandum of appeal neither have they made an attempt to amend it and as such the law does not give them the leeway of challenging the quantum of damages. Order 42 Rule 4 provides as follows; *‘The appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule:* *Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.’* In view of the above, this court cannot engage in analyzing the issue of quantum. I turn to the issue of liability, which this court finds astonishing. In their submissions on liability, the appellants have in two short paragraphs told this court that the respondent was obligated to prove his case on a balance of probabilities which he failed to do and proceeded to state that they reiterate their submissions on liability as made before the lower court. When I resorted to the appellants’ submissions dated 23rd February 2024 filed in the trial court, I noted that the appellants said as follows on the issue of liability; *‘When parties appeared before you on 1-02-2024, they recorded consent in the following terms;* 1. *The court’s finding on liability in the related Kithimani Cmcc E051, E052 and E055 of 2021 be adopted as the court’s finding on liability in this suit.* 2. *The documents filed by both parties be admitted in evidence without calling their respective makers.* 3. *Quantum on damages be canvassed by way of written submissions.* *The consent was adopted as an order of the court. By the terms of the consent the issue of liability is settled at 100 per cent against the defendants jointly and severally and what remains for determination is the issue of quantum which we now address you as hereunder.’* The proceedings of the trial court show that the above cited text is the correct position. When it came to the judgment, the court confirmed that judgment had been entered as per the consent and as per the judgment in the sister files PMCC 051 and 052 of 2021. The judgment on liability in this matter was therefore not only entered by consent but also the consent has not been challenged. By virtue of Section 67(2) of the Civil Procedure Act, the judgment on liability having been entered by consent is not appealable. Unless and until it is shown to me that the consent was set aside, I lack jurisdiction to determine the issue of liability. In view of the above, I do not see any need for further discussion in this matter. The appeal is incompetent, unmerited and an abuse of the court process. The same is dismissed with costs to the respondent. Dated signed and delivered at Nairobi this **22nd** day of **May** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of Miss Omari holding brief for Mr. Mulyungi for the appellant and Mr. Gichimu for the respondent.