https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11530

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E066 OF 2024** **SUSAN AKINYI OGOLA & ISAIAH NICODEMUS ODHIAMBO (*suing as the legal Representatives of* ISAIAH AGOLA OMORI-DECEASED)……………..APPELLANTS** **VERSUS** **NICHOLAS OKOTH ONYANGO…………………………………..…1ST RESPONDENT** **FUJI KING MOTORS LTD…………………………………………..…2ND RESPONDENT** **MONICA ADHIAMBO ONGOI……………………………………..3RD RESPONDENT** **(Being an Appeal from the Judgment and Decree at the Principal Magistrate’s Court in Rongo CMCC No. E002 o 2020 delivered by Hon. S.N MUTAVA, Resident Magistrate on 20th September 2023.)** **JUDGMENT** 1. By a Plaint dated 16/09/2020, the Appellants sued the Respondents in the trial court seeking General Damages under the [Law Reform Act](https://kenyalaw.org/akn/ke/act/1956/48) and the [Fatal Accidents Act](https://kenyalaw.org/akn/ke/act/1946/7), Special Damages, costs of the suit and interest at court rates for fatal injuries sustained in a road traffic accident that occurred on 20/08/2020, along the Migori -Rongo road near Sugarland Junction. 2. The 1st and 3rd Respondents filed their Statement of Defence dated 30/10/2020 and 23/11/2020 respectively, denying any liability for the accident. They denied that the respective Motor Vehicles were involved in any accident. In the alternative, the Respondents pleaded that the Appellants were solely to blame for the accident and that, therefore, deserved no compensation whatsoever. 3. The Learned Trial Magistrate heard and concluded the trial and entered judgment on 20/9/2023. 4. The Learned Trial Magistrate found that the Appellant had proved their case on a balance of probabilities and awarded a total compensation of Kshs. 575,000/=. She found the 2nd and 3rd Respondents 100% liable and apportioned them 50:50 liability. 5. The Appellant aggrieved by that decision has appealed to this Court through Memorandum of Appeal dated 22/10/2024 which the following as grounds of appeal; 1. **That the Learned Trial Magistrate misappropriated both facts and law by arriving at a decision which was against the weight of evidence.** 2. **That the Learned Trial Magistrate erred both in law and in fact in failing to find the 1st defendant liable whereas there was sufficient evidence (both oral) and documentary against the 1st Defendant warranting him to be held liable to compensate the Appellant.** 3. **That the Trial Court erred in both law and fact in absolving the 1st Respondent of liability that the driver of the subject vehicle and who had been found negligent by the sane court was agent of the 1sr respondent and motor vehicle was being driven for the beneficial interest.** 4. **That the learned Trial Magistrate erred both in law and in fact in failing to consider the Plaintiffs submissions and the judicial precedent which had she considered, she could have come to the conclusion that the 1st Defendant was liable for the accident.** **6. The Appellant thus sought the following orders** 1. **That the Appeal be allowed and the judgement and decree of the trial Magistrate court dated 20/9/2023 be set aside and/or varied and substituted with an order making all the three Respondents obliged and liable to compensate the Appellants.** 2. **That the cost of this Appeal and cost incurred in the subordinate court be borne by the Respondent.** 3. **THAT the amount awarded by trial court and costs of this appeal to attract interest from the date of judgement of this appeal at court rates.** 4. **Suh other relief as the court may deem necessary to grant be granted.** 7. The 3rd Respondent filed a cross Appeal dated 13/12/2024 faulting the Trial Magistrates findings, urging this court to find them not liable for the accident. **Plaintiffs case** 1. The Plaintiff lined 2 witnesses. PW1, Owino Clinton Oludo No. 97339 gave sworn evidence that the accident occurred on 20th May 2020 at around 12.30 hours at Sugarland junction. That the accident involved two motor vehicles KCX 961G Toyota Hiace Matatu, KCW 069V and a motor cycle KMCL 531C..That the motor vehicle KCX961G was being driven from Migori to Awendo, the motor cycle was moving towards Awendo and motor vehicle KCW 069V was coming from the opposite direction. 2. That motor vehicle KCX 961G branched at the junction for passengers to alight. When the driver joined the road, he did not indicate, and the motor cycle which was on the highway rammed on it. As a result, the rider was thrown into the opposite lane where he was run over by motor vehicle KCW 096V which was coming from the opposite direction, and he died on the spot. The drive was charged with the offence of causing death by dangerous driving in MCCR/E006/2021 which was still pending in court. 3. In cross examination, the Police Officer stated that he was not the investigating officer and that at the time the abstract was issued, the matter was still under investigation. That the point of impact was on the left side of the lane and the motor vehicle was hit on the right side behind the driver. That the rider of the motor cycle was wearing protective gears and the drive of motor vehicle KCX 961 G was to blame for the accident and charged. That the 3rd Defendant was not blamed. 4. PW2, Susan Akinyi Agula, a farmer from Sakwa testified that the deceased was her husband and together they had 8 children. She produced the copies of Identity card, Post mortem report, certificate of death, demand letter, copy of search, grant ad litem and Chief’s letter. She stated that at the time of her husband’s death, he wa 58 years old in good health, earning Kshs. 30,000/= per month of which Kshs. 20,000= was used for school fees. 5. On cross examination, she stated that she did not witness the accident and that the husband died on the spot. That her husband was a motor cycle rider and did not have a driving license. She stated that she had 8 children and produced their birth certificates. That she spent Kshs. 75,000/= on funeral expenses, which money was raised through contributions. **Defence case** 1. DW1, Dominic Bruno Sidalo a driver in his sworn evidence stated that on 20th May 2021, while heading to Kisumu from Migori, was hit by a motorcycle from behind at Sugarland. That rider was then run over by a tipper that was on the other side of the lane. That he reported the matter to Awendo Police Station and produced the motor vehicle inspection report as an exhibit. 2. On cross examination, he stated that he had not produced his driving license and that he had not stopped to drop some passengers and there were pot holes in the road. That he had been charged alone with causing death by dangerous driving. 3. DW2, Richard Onyango Odhiambo testified under oath that on 20/5/2021, he was driving from Kanga to Migori and while at Sugarland junction, a Nissan Matatu KCX 691G entered the stage to drop a passenger but then entered the road abruptly. As a result, the rider hit the Nissan from behind, causing the rider to fall on the road his vehicle Reg.KCW069V ran over him. 4. In cross examination, he confirmed that the motor vehicle he was driving ran over a rider who had fallen into the road after hitting a Nissan from behind. That even if he had not run over him, he would have died anyway and that he was not driving at high speed so was the rider. He blamed the driver of the Nissan for entering the road without indicating and keeping a good distance between him and the rider. He stated that he did not witness the matatu drop a passenger. 5. Appeal was canvassed by way of written submission. In their submissions dated 30th May, 2025, the Appellant argued that the trial court was at fault in absolving the 1st Respondent from liability yet he was properly identified as the co-owner of the motor vehicle registration KCX 961 G in the Police abstract that had been produced in evidence. It was the Appellants submission that although the copy of records had indicated the 2nd Respondent as the registered owner of the said motor vehicle, the police abstract linked the 1st Respondent to the ownership of the said motor vehicle and the same was not contested by the opposing counsel. It was thus their argument that the 1st Respondent ought to have been found vicariously liable for the negligen ce of DW1 whom the court found to have contributed to the accident. Reliance was placed in the case of **Nancy Ayemba Ngana v Abdi Ali (2010)eKLR and Joel Mugo Apila v East African Sea Food Limited, CA, 309/2010 (2023)eKLR.** 6. The 3rd Respondent/Cross Appellant in their submissions dated 29/10/2025 submitted that they were erroneously found liable and that the 50:50 liability as apportioned by the trial court should be set aside. They submitted that there was no evidence adduced by the parties pointing negligence on their part. They relied in the case of **Fred Ben Okoth vs** **Equator Bottles Limited (2015) eKLR and Kiema Mutuku Vs Kenya Hauliers Limited.** **ANALYSIS AND DETERMINATION** This being a first appeal the Court has a duty to reconsidered and re-evaluated the entire record and has made due allowance with respect to the fact that I have neither seen nor heard the witnesses. and in this regard, I take cognizance of the holding in **Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)** in which the Court of Appeal stated as follows:- **“This being a first appeal it is trite law, that this Courtis not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-** **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.....”** 1. I have carefully considered this appeal, the cross appeal, the record as well as rival submissions filed by the parties together with the authorities cited. I find the following to be the issues for determination: 2. **Whether the trial court properly apportioned liability for the accident.** 3. **Whether the cross-appeal by the 3rd respondent is merited.** 4. **Who bears the costs.** **Whether liability was properly apportioned** 1. There is no dispute that the accident occurred at Sugarland Junction and involved motor vehicle registration No. KCX 961G, motorcycle registration No. KMCL 531C and motor vehicle registration No. KCW 069V. Equally undisputed is the fact that the deceased sustained fatal injuries after colliding with motor vehicle KCX 961G and subsequently being run over by motor vehicle KCW 069V when he fell on its way. The question is, which of the drivers was negligent. 2. PW1, although not the investigating officer, testified that according to the police records, the driver of motor vehicle KCX 961G stopped to alight a passenger before rejoining the road without proper look out/ indicating, thereby obstructing the motorcycle which rammed into the rear of the vehicle. His testimony was consistent with that of DW2, the driver of motor vehicle KCW 069V, who confirmed that the matatu had entered the stage before abruptly rejoining the road, leaving the motorcyclist with insufficient time to avoid a collision. 3. DW2 further testified that after the rider struck the matatu, he fell into the lane of the 3rd respondent's motor vehicle, which ran over him. Significantly, DW2 attributed blame solely to the driver of motor vehicle KCX 961G for rejoining the highway without ensuring that it was safe to do so. It was also his testimony that the rider was not riding at high speed. 4. The testimony of DW2 was that of an independent participant in the accident and substantially corroborated the evidence of PW1. It also contradicted DW1's assertion that he had neither stopped to alight passengers nor abruptly joined the road. In addition, DW1 admitted during cross-examination that he had been charged with the offence of causing death by dangerous driving arising from the same accident. Although criminal proceedings are not conclusive proof of negligence in civil proceedings, the fact of the charge lends support to the evidence placing him at the centre of the occurrence. 5. The applicable standard of proof in civil proceedings is on a balance of probabilities. In *Kirugi & Another v Kabiya & 3 Others* [1987] KLR 347. Court of Appeal held that: "The burden was always on the plaintiff to prove his case on a balance of probabilities even if the case was heard by way of formal proof." 1. From the evidence on record, this Court is persuaded that the predominant cause of the accident was the negligent manner in which the driver of motor vehicle KCX 961G rejoined the highway without ensuring that it was safe to do so and without warning other road users. 2. The copy of records produced at trial identified the 2nd respondent as the registered owner of the motor vehicle. However, the police abstract identified both the 1st and 2nd Respondents as owners. No evidence was led by either Respondent to challenge the contents of the police abstract or explain the apparent discrepancy. 3. In ***Samuel Mukunya Kamunge v. John Mwangi Kamuru***, Nyeri H.C. Civ. Appeal No. 34 of 2002, it was held as follows: ***“It is true that a certificate of search from the Registrar of motor vehicles would have shown who was the registered owner of the motor vehicle according to the records……That however, is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is in recognition of the fact that often-times motor vehicles change hands but the records are not amended.*** ***“I find that the trial Magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicles could prove ownership of the motor vehicle. I find [that] a Police abstract report having been produced showing the respondent as the owner of motor vehicle No. KAH 264A, and evidence having been adduced that letters of demand sent to the respondent elicited no response from him denying ownership of the motor vehicle, and the respondent having offered no evidence to contradict the information on the Police Abstract report, the appellant had established on a balance of probability that motor vehicle No. KAH 264A was owned by the respondent”.*** 1. The respondents neither called evidence from the Registrar of Motor Vehicles nor produced any material demonstrating that the 1st Respondent had no proprietary or beneficial interest in the motor vehicle. In the absence of such rebuttal, this Court finds that the trial court erred in disregarding the police abstract altogether. Once ownership is established, liability follows where the negligent driver was acting as servant or agent of the owner. 2. The evidence before the trial court established that DW1 was driving the respondents' matatu in the ordinary course of its business. Consequently, both owners were properly answerable for his negligence, which this court now finds them to be. This Court therefore finds that the 1st Respondent ought to have been held jointly and severally liable together with the 2nd Respondent. **(ii) Whether the cross-appeal has merit** 1. The 3rd Respondent contends that there was no evidence establishing negligence on the part of her driver and that the trial court erred in finding her 50% liable. 2. The evidence of PW1 expressly stated that no blame was attributed to the driver of motor vehicle KCW 069V. That evidence was not shaken during cross-examination. More importantly, DW2 consistently testified that he was confronted with an emergency after the rider was projected into his lane following the collision with the matatu. There was no evidence that he was speeding, driving recklessly or could reasonably have avoided the impact. 3. The doctrine applicable in such circumstances is that a driver faced with a sudden emergency not of his own making is not negligent merely because, in hindsight, another course of action may have been possible. In *Eastern Produce (K) Ltd v Christopher Atiado Osiro* [2006] eKLR, “*It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid down in the case of****Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258,****where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence”.* 4. The record discloses no evidence demonstrating any negligent act or omission on the part of the 3rd Respondent's driver. The unfortunate fact that his vehicle ran over the deceased after the latter had already been thrown into his path is not enough proof of negligence. 5. Consequently, this Court finds that the trial court erred in apportioning liability against the 3rd Respondent. The cross-appeal on liability therefore succeeds. 6. The result is that liability shall rest **100% against the 1st and 2nd Respondents jointly and severally**, with **no liability attaching to the 3rd Respondent**. 7. Pursuant to Section 27 of the Civil Procedure Act, costs follow the event unless the court orders otherwise. The appeal has substantially succeeded against the 1st and 2nd Respondents, while the cross-appeal by the 3rd Respondent has also succeeded. Accordingly, the appellant shall have the costs of the lower court at court interest from the day of judgement as well as of the appeal as against the 1st and 2nd Respondents, the 3rd Respondent shall have the costs of the cross-appeal. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 23RD DAY OF JULY 2026** **ANNE ONGI’NJO** **JUDGE** **In the presence of:**