https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9064

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E1170 OF 2024** **SHIRLEY NDUNGE APPELLANT** *(Suing as the legal representative of the Estate of Judy Munyiva Muthiani – Deceased)* VERSUS **DAVID MUTHAMA MALONZA RESPONDENT** *(Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Nairobi (Milimani Commercial Courts) (Hon. J. M. Gacheru) delivered on 12th September 2024 in MCCC No. E554 of 2021)* **JUDGMENT** **A. BACKGROUND** 1. This appeal arises from the judgment of the Chief Magistrate’s Court at Nairobi delivered on 12th September 2024 in MCCC No. E554 of 2021. The Appellant, Shirley Ndunge, sued the Respondent, David Muthama Malonza, in her capacity as the legal representative of the estate of the late Judy Munyiva Muthiani (“the deceased”), who was her mother. 2. By a plaint dated 22nd January 2021, the Appellant pleaded that on 23rd February 2019, while the deceased was riding as a pillion passenger on motorcycle registration number KMDW 305W along Kangundo Road at Ruai, the Respondent so negligently managed and controlled motor vehicle registration number KAV 093X that he caused it to collide with the motorcycle, occasioning the deceased fatal injuries from which she died on 4th March 2019. The Appellant sought general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs and interest. 3. The Respondent denied liability by a statement of defence dated 22nd May 2023, contending that any accident was caused by the negligence of the rider of the motorcycle and/or the deceased, and that his motor vehicle was stationary when the motorcycle, in attempting to avoid an oncoming vehicle, lost control and ran into it. 4. The Respondent also took out third-party proceedings against Polycap Nyakwaye Nyangau, the registered owner of the motorcycle, seeking indemnity and/or contribution; interlocutory judgment was entered against the third party in default of appearance. 5. At the trial, the Appellant called three witnesses (PW1, the appellant; PW2, Peter Mukuha; and PW3, David Kihuha) and the defence called two (DW1, the Respondent; and DW2, Police Constable Velma Amondi). The learned trial magistrate dismissed the suit, holding that the Appellant had not proved her case on a balance of probabilities and declining to apportion any liability against the Respondent, though the court proceeded to assess quantum for completeness. 6. Aggrieved, the Appellant preferred this appeal on seven grounds which, in substance, fault the trial court’s evaluation of the evidence, its finding on liability, its failure to address the third-party proceedings, and its refusal to award damages. **B. THE APPELLANT’S SUBMISSIONS** 1. Through written submissions dated 11th June 2025 filed by M/s Odhiambo Oronga & Company Advocates, the Appellant contended that the learned trial magistrate treated the evidence superficially and arrived at a finding that was against the weight of the evidence. It was submitted that the magistrate engaged in selective scrutiny discrediting the Appellant’s eyewitnesses (PW2 and PW3) over immaterial discrepancies such as the colour of the vehicle and its precise distance from the junction, while overlooking inconsistencies in the defence case, particularly the evidence of DW2. 2. Relying on *Peters v Sunday Post Ltd [1958] EA 424* and *Butt v Khan (1977) 1 KAR*, the Appellant urged that the determination of liability in a running-down cause is not a scientific affair but a matter of applying common sense to the facts (*Stapley v Gypsum Mines Ltd (1953) AC 663*), and that the Respondent, having admitted that he was exiting a car wash to join a major road, was under a duty to yield and was accordingly negligent. 3. On the third-party proceedings, the Appellant submitted that the most egregious error was the trial court’s complete failure to address the role of the third party, against whom default judgment had been entered. Invoking Order 1 Rules 15 and 17 of the Civil Procedure Rules, she argued that a third party who fails to enter appearance is deemed to admit the validity of the decree and his own liability to contribute or indemnify to the extent claimed in the third-party notice, and that the omission to apportion contribution rendered the judgment incomplete and incapable of enforcement. 4. Finally, the Appellant contended that the trial court wrongly declined to assess and award damages, the deceased having survived some ten days in pain and having been a chief librarian earning a net monthly salary of Kshs 169,740 and leaving two dependants. She prayed that the appeal be allowed, the finding on liability be set aside, judgment be entered as prayed, or, in the alternative, that the matter be remitted for proper adjudication of the third-party proceedings, with costs. **C. THE RESPONDENT’S SUBMISSIONS** 1. In opposition, through written submissions filed by M/s Howard & Kenneth Advocates, the Respondent contended that the appeal was wholly devoid of merit. It was submitted that the burden lay on the Appellant to prove negligence, and that an accident does not of itself give rise to liability (*Statpack Industries v James Mbithi Munyao [2005] eKLR*; *Kirugi & Another v Kabiya & 3 Others [1987] KLR 347*). 2. The Respondent emphasised that PW1 had conceded she was not at the scene, rendering her account hearsay under section 63 of the Evidence Act, and that PW2 and PW3 contradicted each other on material particulars such as the colour of the vehicle (black as against silver), its position relative to the junction, and the direction of travel of the motorcycle, contradictions which, far from being minor, went to the very core of identification and causation (*Kiarie v Republic [1984] KLR 739*). 3. He submitted that the motor vehicle inspection report, the occurrence book extract and the independent evidence of DW2, a traffic police officer present at the scene, all supported the conclusion that his vehicle was stationary and that the motorcycle veered into it. 4. On the third-party proceedings, the Respondent submitted that the Appellant had misconceived the law: third-party liability is contingent upon the liability of the defendant and is determined *inter se* between the defendant and the third party, and does not create an independent cause of action for the plaintiff (*Kenya Bus Services Ltd v Humphrey [2003] eKLR*; Order 1 Rule 22 of the Civil Procedure Rules). 5. Since the Respondent had been found not liable, the question of contribution did not arise, and the Appellant, having deliberately elected not to sue the rider or owner of the uninsured motorcycle, could not shift that burden to the court. 6. As damages flow from liability, and liability had not been established, no damages were payable; in any event, the trial court had assessed quantum for completeness. The Respondent prayed that the appeal be dismissed with costs and the trial court’s judgment upheld. **D. ISSUES FOR DETERMINATION** 1. I have considered the record of appeal, the grounds of appeal, the rival submissions and the authorities cited. Although the Appellant framed seven grounds, they collapse into two issues for determination: 1. ***Whether the learned trial magistrate erred in finding that the appellant had not proved, on a balance of probabilities, that the respondent was liable for the accident; and*** 2. ***Whether the trial court’s failure to determine the third-party proceedings, and its refusal to award damages, occasioned a miscarriage of justice warranting the interference of this court.*** 2. **E. ANALYSIS AND DETERMINATION** 3. This being a first appeal, the duty of this court is well settled. In ***Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123***, the predecessor Court of Appeal held that a first appeal is in the nature of a retrial, and that the appellate court must reconsider the evidence, evaluate it and draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses and must make due allowance in that respect. 4. That re-evaluation is, however, not at large. As the Court of Appeal observed in ***Mwanasokoni v Kenya Bus Services Ltd (1982–88) 1 KAR 278***, and as reiterated in ***Peters v Sunday Post Ltd [1958] EA 424***, an appellate court will not lightly interfere with findings of fact, and particularly with findings that turn upon the credibility and demeanour of witnesses, unless they are shown to rest on no evidence, on a misapprehension of the evidence, or on a demonstrably wrong application of principle. See also ***Mbogo v Shah [1968] EA 93*)**. It is against this measured standard and not on the footing that this court might itself have reached a different view that the Appellant’s complaints fall to be tested. 5. The Appellant’s claim sounded in negligence. The governing principle, anchored in section 107(1) of the Evidence Act, is that he who asserts must prove; the burden lay on the Appellant to establish, on a balance of probabilities, both that the Respondent was at fault and that his fault caused the accident. 6. The mere occurrence of an accident, or the unfortunate fact of the deceased’s death, does not of itself fix the Respondent with liability. As the High Court put it in ***Statpack Industries v James Mbithi Munyao [2005] eKLR***, where it was held that: *“Coming now to the more important issue of “causation”, it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same.”* 1. The Court of Appeal expressed the same idea in ***Kiema Mutuku v Kenya Cargo Hauling Services Ltd (1991) 2 KAR 258***, holding that *there is no liability without fault and that a plaintiff must prove some negligence against the defendant.* The question, therefore, is whether the evidence tendered by the appellant met that threshold. 2. PW1, the Appellant, candidly conceded that she was not present when the accident occurred; her account of the collision was necessarily second-hand and, as the trial court rightly held, of little probative value on the question of how the accident happened. The Appellant’s case on liability therefore stood or fell on the evidence of PW2 and PW3, who claimed to be eyewitnesses. 3. On a re-reading of the record, their accounts diverged on more than peripheral detail. They could not agree on the colour of the Respondent’s vehicle, one describing it as black and the other as silver, a vehicle they each claimed to have approached closely enough to help carry the deceased into it. More significantly, they gave materially different accounts of the position of the Respondent’s vehicle relative to the Githunguri junction with PW2 placing the car wash some twenty metres ahead of the junction, PW3 placing the vehicle directly opposite it, and their evidence on the direction from which the motorcycle was travelling was at variance both with paragraph 6 of the plaint and with the investigation diary. 4. The Appellant characterises these as immaterial inconsistencies unfairly seized upon. But where the very issue is the identification of the offending vehicle and the mechanics of the collision, discrepancies of this kind do not lie at the margins; they go to the reliability of the witnesses on the central question of causation. The trial court’s impression that these witnesses were not truthful is precisely the species of credibility assessment that an appellate court, working only from the printed record, is slow to displace. 5. Set against the Appellant’s evidence was the testimony of DW2, a police constable on traffic duty at or near the scene, whose presence both PW2 and PW3 confirmed. She was, as the trial court found, an independent witness with no interest in the outcome, and her account, that the motorcycle, faced with an oncoming vehicle, veered off the road and struck the Respondent’s stationary vehicle as it waited to join Kangundo Road, was consistent with that of the respondent (DW1). 6. That account was, in turn, supported by the physical evidence: the motor vehicle inspection report disclosed only a scratch to the front and rear bumpers, consistent with a vehicle struck while stationary rather than one that had itself driven into the motorcycle, while the occurrence book extract recorded that no one had been blamed and that investigations remained pending. 7. The Appellant’s reliance on ***Stapley v Gypsum Mines Ltd (1953) AC 663*** that liability is to be determined by applying common sense to the facts does not, on this record, assist her; for applying common sense to this body of evidence, a stationary vehicle that is run into by a motorcycle which has lost control is not, without more, the author of the accident. Nor does the failure to yield argument advance matters, since it presupposes that the Respondent’s vehicle was moving into the path of the motorcycle, a premise the trial court rejected on the evidence. 8. Had the cause of the accident been left genuinely uncertain as between two road users, the principles on apportionment in ***Hussein Omar Farah v Lento Agencies [2006] eKLR* and *Lakhamshi v Attorney General (1971) EA 118*** might have come into play but those principles are engaged only where some fault on the part of the defendant is first established, which, on this record, it was not. 9. Weighing the whole of the evidence afresh, I am unable to say that the trial court’s finding rested on no evidence, on a misapprehension of the evidence, or on a wrong principle. To the contrary, the conclusion that the Appellant failed to discharge the burden of proving fault on the part of the Respondent was amply supported by the record. The related complaint that the magistrate covertly applied a criminal standard of proof is not borne out by the judgment, which expressly invoked the balance of probabilities and section 107 of the Evidence Act. A finding that a plaintiff has failed to prove her case does not, of itself, signify that a higher standard was demanded of her. The first issue must therefore be resolved against the appellant. 10. The Appellant’s most strenuous complaint is that the trial court ignored the third party altogether. The premise is that, default judgment having been entered against the third party, Order 1 Rule 17 of the Civil Procedure Rules deemed the third party to have admitted liability to contribute or indemnify, such that the court was bound to apportion liability against him. However, the deeming under Rule 17 operates only in respect of *“the validity of the decree obtained against such defendant … and his own liability to contribute or indemnify … to the extent claimed in the third party notice.”* 11. It is predicated upon there being a decree against the defendant who issued the notice. The third party’s liability is contingent and derivative: it arises, if at all, only after, and to the extent that, the defendant is himself found liable to the plaintiff, and it falls to be determined *inter se* between the defendant and the third party. **See: *Kenya Commercial Bank Ltd v Suntra Investment Bank Ltd [2015] eKLR***, where the court held that liability between the defendant and the third party is determined as between them, once the court is satisfied that there is a proper question to be tried under Order 1 Rule 22). Where, as here, the defendant is found not liable and the suit is dismissed, no decree passes against him, nothing falls to be indemnified, and the question of contribution simply does not arise. 12. Two further matters dispose of this ground. First, Order 1 Rule 15(3) expressly provides that the third-party procedure shall not be construed so as to prejudice the rights of the plaintiff against any defendant; the corollary is that third-party proceedings, taken out at the instance of a defendant for his own protection, do not enure to create or enlarge any cause of action by the plaintiff against the third party. 13. The Appellant elected, for reasons the respondent attributes to the fact that the motorcycle was uninsured and its rider unlicensed, not to sue the rider or the owner of the motorcycle. She cannot, through the back door of the Respondent’s third-party notice, secure against the third party the judgment she did not seek directly. 14. Secondly, and as a consequence, the alternative prayer that the matter be remitted for adjudication of the third-party proceedings is misconceived, for there is nothing left to adjudicate once liability against the Respondent has failed. This issue, too, is resolved against the Appellant. 15. That leaves the complaint that the trial court failed to assess and award damages. The complaint is not borne out by the record. The learned magistrate did assess quantum, Kshs 100,000 for pain and suffering, Kshs 100,000 for loss of expectation of life, Kshs 4,320,000 for loss of dependency under the Fatal Accidents Act, and Kshs 84,370 in special damages, expressly doing so for completeness, against the contingency that liability had been established. 16. That is the course commended by good practice, precisely so that an appellate court is spared the need to remit the matter on quantum. But an award of damages is consequential upon a finding of liability; damages flow from, and cannot stand independently of, liability. 17. Having upheld the finding that liability was not established, there is no foundation upon which any award can rest, and the assessment undertaken below remains, as it was intended to be, hypothetical. I need say no more on quantum, save to observe that the divergence between the net monthly figure pleaded by the Appellant (Kshs 169,740) and that adopted by the trial court (Kshs 60,000) would, had the issue arisen, have called for closer scrutiny of the payslip, a matter now academic. **F. DISPOSITION AND ORDERS** 1. In the result, and having re-evaluated the evidence and considered the applicable law, I find that the appeal lacks merit. Each of the grounds advanced fails. Accordingly, the following orders commend themselves and are hereby made: (a) The appeal is dismissed in its entirety. (b) The judgment of the Chief Magistrate’s Court at Nairobi (Milimani Commercial Courts) in MCCC No. E554 of 2021, delivered on 12th September 2024, is upheld. (c) The Appellant shall bear the costs of the appeal. It is so ordered. **Dated and Delivered at Nairobi this 25th day of June 2026.** **BENARD WAFULA MURUNGA** **JUDGE** ***Delivered on a virtual platform in the presence of:*** ***Oronga for Appellants*** ***N/A for Respondents*** ***Kevin Babu - Court Assistant***