https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11299

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS COUNTY COURT NAME: MACHAKOS HIGH COURT CASE NUMBER: HCCA/E212/2025 MARTIN OKOTH OUMA ALIAS MARTIN OUMA VS MASAI (K) LTD JUDGMENT BACKGROUND 1. The Appellant herein, who was the plaintiff in the subordinate court, sued the Respondent seeking damages arising from a road traffic accident which occurred on 27th April 2024 along the Nairobi–Mombasa Road near Gateway Mall involving motor vehicle registration number KYU 509, pleaded to belong to the Respondent, and motorcycle registration number KMGM 120S on which the Appellant was a pillion passenger. 2. The Respondent denied negligence and pleaded that the accident was caused and or materially contributed to by the rider of the motorcycle and by the Appellant. 3. The suit was heard and determined by Hon. S. Kandie (Resident Magistrate) who delivered judgment on 4th August 2025 dismissing the suit on liability. The trial court nonetheless assessed damages in the alternative. 4. Aggrieved by the whole judgment, the Appellant lodged the present appeal by a memorandum dated 1st September 2025. The appeal was canvassed by way of written submissions by both parties. The memorandum of appeal 1. The Appellant’s memorandum of appeal dated the 1st day of September, 2025 set out the following grounds which I reproduce hereunder; 2. The learned magistrate erred in law and fact in finding that the Appellant failed to prove negligence, against the Respondent was caused by the Respondent’s motor vehicle. 3. The learned magistrate failed to properly evaluate the evidence on record by disregarding the Respondent’s driver’s testimony, which confirmed involvement in the accident, and by relying on the investigating officer’s conclusion blaming the motorcycle rider without any supporting documentation, including a sketch plan or motor vehicle inspection report to definitively show the point of impact. 4. The learned magistrate misdirected himself by holding that the Appellant ought to have enjoined the motorcycle rider as a third party when, in law, a plaintiff is entitled to sue any tortfeasor whose negligence caused or contributed to the accident, and the burden of joining a third party lay on the Respondent who pleaded contributory negligence. 5. The learned magistrate erred in fact and in law by applying wrong principles in finding that the Appellant failed to prove negligence against the Respondent, and by making a finding that despite there being no evidence on record to support such a finding, the Respondent is 100% liable for the accident effectively rendered the Appellant, an innocent pillion passenger, 100% liable for the accident. 6. The Learned Trial Magistrate greatly misdirected himself by ignoring and treating the Appellant’s evidence and submissions on both liability and quantum of damages very superficially, thereby arriving at an erroneous conclusion on liability and wrongly dismissing and or under-assessing the pleaded heads of damages. 7. The Learned Trial Magistrate in dismissing the suit without properly appreciating and considering the evidence of the appellant and other corroborative evidence, thereby occasioning a miscarriage of justice. 8. The learned Trial Magistrate erred in law and in fact by not considering the evidence and submissions presented before him on liability by the Appellant consequently apportioning an erroneous assessment on liability against the Appellant. 9. The Learned Trial Magistrate’s judgement is against the weight of evidence and law placed before him consequently he proceeded on wrong principles and failed to apportion any liability to the Respondent. 1. The learned magistrate failed to consider comparable authorities cited by the Appellant and therefore failed to exercise judicial discretion to assess and award just and reasonable compensation. 2. The judgment was against the weight of evidence and the law, as the trial court failed to properly analyze the pleadings, witness testimonies, and submissions, thereby arriving at a conclusion that occasioned a miscarriage of justice. 3. The Learned Trial Magistrate failed to analyze the entire evidence as presented to him, misapprehended the evidence, relied on extraneous matters and therefore came to a conclusion that was against the weight of the evidence presented before him. Parties’ submissions 1. The Appellant filed written submissions dated 1st April 2026. In those submissions the Appellant grouped the grounds of appeal and argued that the trial court failed to properly evaluate the evidence on liability, misdirected itself on third party liability and burden of proof, and failed to consider submissions and authorities on both liability and quantum. 2. On liability, the Appellant’s submissions were that he was an innocent pillion passenger, that the evidence of the Appellant and the rider was consistent that the Respondent’s driver was overtaking recklessly and rammed into the motorcycle, and that the Respondent did not produce objective evidence such as a sketch plan or inspection report. The Appellant urged the Court to find that he discharged the burden of proof under sections 107 to 109 of the Evidence Act and that the evidential burden shifted to the Respondent. 3. On third party procedure, the Appellant relied on Order 1 Rule 15 of the Civil Procedure Rules and argued that the duty to bring third party proceedings lay on the Respondent, hence the Appellant could not be faulted for not enjoining the rider. 4. On quantum, the Appellant invited the Court to prefer the medical report of Dr. Wellington Kiamba dated 14th August 2024, produced through the doctor at the trial, and urged that the Respondent’s medical report by Dr. Wambugu dated 2nd April 2025 should be accorded reduced weight. The Appellant proposed, inter alia, general damages of Kshs. 4,000,000; special damages of Kshs. 2,655,197; loss of income at Kshs. 30,000 per month from the date of accident to judgment; loss of earning capacity calculated using a minimum wage approach; and future medical expenses of Kshs. 500,000 as per Dr. Kiamba’s opinion. 1. The Respondent filed written submissions opposing the appeal. The Respondent’s position was that the trial court correctly found that negligence was not proved against the Respondent; that the testimony of the investigating officer was the only independent account and supported the finding that the motorcycle hit the Respondent’s vehicle from behind; and that the Appellant’s allegations of reckless overtaking were unsubstantiated by objective evidence. The Respondent further submitted that third party procedure does not create liability and that failure to enjoin the rider cannot transfer liability to the Respondent. On quantum, and in the alternative, the Respondent contested strict proof of special damages and proposed a lower figure for future medical expenses than that proposed by the Appellant. Duty of the first appellate court 1. This being a first appeal, this Court must re-evaluate and reconsider the evidence on record and arrive at its own independent conclusion, bearing in mind that it did not see or hear the witnesses testify as was aptly held in Kefa Omanyala Ingura v Ibrahim Omerikit Papai [2015] KECA 207 (KLR). ISSUES FOR DETERMINATION 1. Having considered the record and the rival submissions, I find that the issues that arise for determination are;- 2. Whether the learned trial magistrate erred in law and fact in dismissing the Appellant’s suit for failure to prove liability against the Respondent. 3. Whether the Respondent’s failure to institute third-party proceedings against the motorcycle rider had any legal effect on the determination of liability. 4. Whether the learned trial magistrate’s alternative assessment of damages was based on wrong principles, a misapprehension of the evidence, or was otherwise so inordinately low or high as to warrant appellate interference. ANALYSIS AND DETERMINATION Whether negligence against the Respondent was proved 1. The accident occurred on 27th April 2024. The Appellant’s case on liability, as pleaded and advanced in submissions dated 1st April 2026, was that the Respondent’s driver negligently overtook and rammed into the motorcycle. 2. The evidence on the circumstances leading to the collision was not uniform. The Appellant testified that the motorcycle was hit from behind by the Respondent’s motor vehicle. The rider testified that the Respondent’s vehicle swerved and hit the motorcycle on the side. The investigating officer, who was not an eye witness but testified as the investigator, stated that the motorcycle hit the Respondent’s vehicle from behind and blamed the rider for failure to keep a safe following distance. The Respondent’s driver also stated that he was hit from behind. 3. The Appellant criticised the investigating officer’s conclusion for want of a sketch plan or inspection report. I agree that such documents are often useful in resolving disputed point of impact. However, the absence of a sketch plan or inspection report does not, by itself, prove the Appellant’s pleaded version or shift the legal burden away from the Appellant. 4. The Court of Appeal has repeatedly emphasised that negligence in road traffic claims must be proved by evidence and that the mere occurrence of an accident, or involvement of a defendant’s motor vehicle, is not by itself proof of negligence. In Wayo & another (Suing on Behalf of the Estate of Benjamin Wayo Sailoki - Deceased) v Bwire [2025] KECA 866 (KLR), the Court of Appeal upheld the dismissal of a road traffic claim where the evidence did not sufficiently establish negligence; the Court noted, among other things, the absence of an eyewitness, lack of a sketch map, and lack of credible circumstantial evidence connecting the respondent to blameworthiness. Similarly, in Keziah & another (Personal Representatives of the Late Isaac Macharia Mutunga) v Lochab Transport Limited [2022] KECA 477 (KLR), the Court of Appeal held that where there is no direct evidence on how the accident occurred and the police evidence is inconclusive, the mere fact that the respondent’s vehicle was involved does not establish liability. 5. I have considered that authority alongside the parties’ rival positions. The present case is not one where both sides produced coherent, competing objective indicators and the court is left only with equal probabilities. Here, the Appellant’s own evidence on the circumstances leading to the accident was inconsistent between the Appellant and the rider, while the investigating officer’s account supported the Respondent’s contention of a rear impact by the motorcycle. That contradiction on the point of impact is not minor. It goes to the heart of whether the Respondent’s driver caused the collision in the manner pleaded. 1. The Appellant also argued that the Respondent’s driver confirmed involvement and that the trial court disregarded that testimony. On my consideration the fact of involvement was not the decisive question; the decisive question was who, on the totality of evidence, was more probably negligent. A driver admitting that a collision occurred does not, without more, amount to an admission of negligence. In Mumbi M’Nabea v David M. Wachira [2016] KECA 773 (KLR), the Court of Appeal held that where both parties blame each other and there is no independent evidence capable of tilting the balance, the party bearing the legal burden fails if the evidence remains evenly balanced. 2. I therefore find that the Appellant did not prove, on a balance of probabilities, that negligence on the part of the Respondent’s driver caused the accident. In reaching that conclusion I expressly depart from the Appellant’s submission that the evidential burden shifted merely because the Respondent did not produce a sketch plan or inspection report. The Appellant still had to place before the court credible, consistent evidence on the mechanics sufficient to satisfy sections 107 to 109 of the Evidence Act. That threshold was not met. am fortified in that conclusion by Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR), where the Court of Appeal reaffirmed that a party alleging negligence bears the burden of proof, and that a rear collision may, depending on the evidence, point to failure by the rear vehicle to keep a safe distance unless that inference is displaced by credible evidence. Whether failure to join the rider as a third party affected the result 1. The Appellant’s submissions placed heavy emphasis on third party procedure and the proposition that a pillion passenger, being “innocent”, should not bear liability, and that the Respondent ought to have joined the rider if it intended to shift blame. 2. I accept, as a general proposition in passenger claims, that a pillion passenger usually has no control over the motorcycle and, absent proof of contributory negligence, should not be apportioned liability merely because of the rider’s fault. However, that principle does not relieve a claimant from proving negligence against the defendant sued. In Geoffrey Mureithi Juma v Robert Kariuki & 5 others [2011] KECA 16 (KLR), the Court of Appeal recognised that a passenger may rely on the circumstances of an accident to establish negligence where the facts properly raise an inference of fault against the vehicles involved and the defendants fail to rebut that inference. The principle, however, presupposes that the evidence before the court establishes a sufficient factual basis for attributing negligence to the defendant or defendants before the court. 1. I have considered that line of reasoning carefully because the Appellant urged this Court to treat him as an innocent passenger and to place responsibility upon the Respondent as the only sued tortfeasor. 2. However, I must be clear on the point where I depart from the Appellant’s approach. The innocent passenger principle is not a substitute for proving negligence against the defendant sued. It becomes material where negligence by at least one sued party is established and the court is asked to apportion blame to a passenger without evidence of the passenger’s fault, or where the defendant seeks to attribute fault to a non-party and thereby reduce its share. 3. The Court of Appeal’s decision in Sammy Ngigi Mwaura v John Mbugua Kagai & another [2006] KECA 377 (KLR) is instructive. The Court held that third party proceedings are ordinarily concerned with indemnity or contribution and do not create liability against the defendant where the plaintiff has failed to prove negligence against that defendant. The Court further made clear that a third party can only be liable over to the defendant if liability is first established against the defendant sued by the plaintiff. Likewise, in Keziah & another v Lochab Transport Limited [2022] KECA 477 (KLR), the Court of Appeal rejected liability where the appellants failed to prove negligence against the respondent, notwithstanding the possible involvement or fault of another vehicle or party. 4. Accordingly, even if I accept that the Appellant, as a pillion passenger, should not be apportioned liability absent proof of his contribution, that proposition does not assist him unless he first proves negligence against the Respondent. I therefore find no reversible error on the third party point that would change the outcome on liability. Quantum and the dates of the medical reports 1. The Appellant urged this Court to prefer the medical report of Dr. Wellington Kiamba dated 14th August 2024 and produced at trial, over the Respondent’s medical report by Dr. Wambugu dated 2nd April 2025. 2. I have considered those dates and I agree with the Appellant to this extent. A contemporaneous report prepared closer to the accident date, whose maker testifies and is cross-examined, is generally of higher probative value on injuries and early prognosis than a later report whose maker does not testify. The Court of Appeal has recognised the importance of contemporaneous medical evidence in personal injury claims. In BB (A minor suing through his next friend and father GON) v Ragae Kamau Kanja [2019] KECA 1002 (KLR), the Court of Appeal faulted the first appellate court for failing to give due consideration to a contemporaneous P3 form which formed part of the evidence of the injuries sustained. Conversely, in Mary Wairimu Njuguna v Kenya Power & Lighting Company Limited [2018] KECA 770 (KLR), the Court of Appeal accepted that a later medical report may be accorded less weight where the injuries alleged in it are not sufficiently linked to the accident or are inconsistent with earlier treatment documents. I therefore accept that, had liability been established, Dr. Kiamba’s report would likely carry more weight on the injury profile, permanent incapacity assessment and future care needs. 1. On appellate interference with quantum, the Court of Appeal has consistently stated that an appellate court will not interfere with an award of damages unless the trial court acted on wrong principles, took into account irrelevant matters, failed to take into account relevant matters, or made an award so inordinately high or low as to represent an entirely erroneous estimate. This principle was aptly restated in Imbezi v Fairmile School Limited & another [2024] KECA 486 (KLR) and similarly in the case of Onunga v Jonathan [2024] KECA 46 (KLR) and Kireria v Kithinji [2025] KECA 178 (KLR). The Court of Appeal has also emphasised that comparable injuries should, as far as possible, attract comparable awards, while recognising that each case must be decided on its own facts. 2. In this matter, since I have upheld the dismissal on liability, damages do not fall for determination in the strict sense. I have nonetheless considered the Appellant’s complaint that the trial court did not meaningfully address quantum. From the record placed before me, the trial court assessed damages in the alternative. That approach is generally prudent in personal injury claims. I therefore do not find a basis to interfere with the alternative assessment in a manner that would benefit the Appellant, particularly because the suit fails on liability. DISPOSITION 1. For the reasons set out above, I find that the appeal is without merit. 2. The appeal is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 16TH DAY OF JULY 2026 IN THE PRESENCE OF: NO PARTY PRESENT BEFORE HON JOYCE GANDANI JUDGE COURT ASSISTANT BEN SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE JOYCE MKAMBE GANDANI** Machakos High Court High Court Div Date: 2026-07-16 11:55:17