https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8100

Masaranga v Ongeche & another (Civil Appeal E013 of 2025) [2026] KEHC 8100 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 8100 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E013 of 2025 AM Okutoyi, J June 4, 2026 Between Nyangate Wycliffe Masaranga Appellant and Edward Ajuoga Ongeche 1st Respondent Albert Chege 2nd Respondent (Being an appeal against the decree and Judgement delivered in the Principal Magistrate’s court in CMCC No. E631 of 2021 by Hon. P.K. Mutai delivered on 23rd of January 2025 in Kisii) Judgment Background of the appeal 1.This appeal emanates from a suit filed in the Chief Magistrate’s court regarding a road accident that occurred on 26th January 2021 involving a motor vehicle registration number KYM 407 driven by the respondent and a motor cycle registration number KMED 375 X in which the appellant was a pillion passenger. As a result of the accident, the appellant incurred injuries. 2.At the trial court, the appellant relied on two witnesses; PW1 the appellant who adopted their statement as evidence and PW2 Dr. Cyprus Okoth who testified as to the injuries sustained and produced medical reports and treatment notes that he relied from Marble Hospital. By consent, the police abstract and discharge summary were produced as evidence. 3.The respondent on their part had two witnesses; DW1 the respondent who adopted his statement as evidence and DW3 Erick Momanyi an administrator of Marble Hospital who denied the appellant having been treated at the facility. 4.The magistrate at the trial court delivered a judgement on 23rd January 2025 with the findings that the rider of the motor vehicle was to blame for the accident and that the appellant had sued the wrong party. As such the case was dismissed with costs. 5.Aggrieved with the decision of the Trial Magistrate court, the appellant filed this instant appeal on the following grounds;i.That the learned trial Magistrate erred in law and fact by finding that the Appellant had not proved his case against the respondent on a balance of probability.ii.That the learned trial Magistrate erred in law and fact by considering and addressing irrelevant issues that were not canvassed before the trial Court.iii.That the learned trial Magistrate erred in law and fact by using the wrong principles in deciding on liability hence arriving at an erroneous decision.ivThat the learned trial Magistrate erred in law and fact by not fully considering and/or appreciating all the fact before him.vThat the finding by the magistrate in liability and quantum was characterized with misapplication of the law and wrong exercise of discretion. 6.The appellant with the reasons whereof prayed that the judgment of the trial court in respect of liability and quantum be set aside and/or varied it. The appellant supported his appeal with written submissions highlighting the err in law and fact in arriving at liability and citing authorities on quantum to support an award for Kshs. 380,000/=. 7.The respondent on their side opposed the appeal and in their written submissions focused on liability, cited various authorities and argued that the appellant had failed to prove liability on the part of the 2nd respondent. Analysis and Determination 8.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 9.I have carefully analyzed the appeal and trial record in its entirety and the main issue for the determination of this court that first needs to be addressed is whether the appellant proved that the respondent caused the accident and whether the trial court considered all facts and evidence before dismissing the case. 10.From the record, there is no contention that an accident did occur on 26th January 2021 involving a motor vehicle KYM 407 driven by the respondent and a motor cycle KMED 375 X in which the appellant was a pillion passenger. 11.Section 107(1) of the Evidence Act, Cap 80 provides that:1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 12.In this case, PW1 the appellant/plaintiff testified that he was knocked down by the vehicle KYM407 from the front and blames the respondent who was driving. The police abstract indicated the matter was under investigation. DW1 the respondent/defendant who was the plaintiff in his testimony blames the rider of the motor cycle KMED 375 X. 13.Section 108 of the Evidence Act provides that:“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 14.In my re-evaluation of the trial record, I find that the appellant has not sufficiently placed cogent evidence demonstrating how the accident occurred or how the respondent was negligent. The evidence tendered confirms that an accident did occur but not who caused the accident. 15.In the case of Palace Investment Ltd. v Geoffrey Kariuki Mwenda & Another (2015) the courts while reiterating the standard of proof observed that the onus is always on the plaintiff to prove his case on the balance of probabilities. 16.The evidentiary threshold in this case is on a balance of probability as rightly highlighted by the Appellant who cited the case of Miller v Minister of Pensions (1947)2 ALL ER, 372“It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not,' the burden is discharged, but, if the probabilities are equal, it is not.” (emphasis added) 17.It is trite law that the mere occurrence of an accident does not automatically translate into liability. Negligence must be proved. Upon re-evaluating the evidence on record, this court is unable to discern any evidence that attributes the accident to the respondent. 18.The evidence adduced at the trial court therefore remains speculative and the appellant has failed to establish negligence on the part of the respondent. The law requires a balance of probability and this has not been attained. 19.I therefore find no basis upon which to interfere with the judgment of the trial court magistrate. 20.Having found that the appellant failed to prove liability against the respondents on a balance of probability, this court will nevertheless address the question of quantum should the superior court reach a different determination on liability. 21.To consider the quantum in this case, it is prudent to evaluate the injuries claimed to have been sustained by the appellant; Bruises on the right leg, Tenderness on the right leg, Recurrent pains on the right leg and Right leg is tender on palpation. There are however contradictions as to the medical history of the appellant where DW2 casts doubt on the treatment notes and discharge that were adduced as evidence. This court is therefore unable to make any determination on the award for general damages. Disposition 22.The appeal lacks merit and is hereby dismissed in its entirety with costs to the respondents.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026A. M. OKUTOYIJUDGEIn the presence of:Orina for the appellantN/A -respondentZainab Ghana- court assistant