Sammy v Njagi & another (Civil Appeal E067 of 2024) [2026] KEHC 11379 (KLR) (23 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E067 OF 2024** **PETER MUGENDI SAMMY……………….………...…………..…………..APPELLANT** **VERSUS** **RICHARD MURIUKI NJAGI…………….………………………….1ST RESPONDENT** **BETH WAKARIA MWANGI………………...…………….………….2ND RESPONDENT** **(Being an Appeal from the Judgment of Honorable S.K Manyura (R.M) delivered on 12/6/2024 at Kerugoya Small Claims Court No. E029 of 2024)** **JUDGMENT** 1. By an undated statement of claim filed on 19/4/2024, the Appellant sued the Respondents seeking Ksh. 208,800 being assessment cost of repairs over motor vehicle registration number KCA 197 K, Ksh. 72,000 being loss of user of motor vehicle registration number KCA 197 K, cost of assessment report of Ksh. 5,800 and costs of the claim plus interest. The Appellant pleaded that on 5/11/2023 around 1200 hours or thereabouts, he was lawfully driving motor vehicle registration No. KCA 197 K, along Embu-Mwea road at Nyangati area, when the 2nd Respondent’s authorized driver and/or agent so negligently, carelessly and/or recklessly drove Motor Vehicle Registration No. KDK 607 F that it lost control, thereby occasioning the Appellant’s motor vehicle extensive material damage. 2. The Respondents filed their Response to the statement of claim dated 17/5/2024 denying the claim, and prayed for its dismissal. 3. Upon full hearing of the claim, the trial court apportioned liability at 50% and awarded the Appellant special damages of Ksh. 287,150 together with costs plus interest. **The appeal** 1. On appeal, the Appellant vide his memorandum of appeal dated 20/6/2024 set out 2 grounds as follows: 1. *The learned trial Adjudicator erred in law by exercising her discretion injudiciously by apportioning the Appellant 50% contributory negligence.* 2. *The learned trial Adjudicator erred in law by failing to give proper consideration to the Appellant’s Pleadings, Statements, and submissions presented pursuant to section 30 of the Small Claims Court Act, Cap 10 A.* **Duty of the Court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123**). 2. The matter proceeded pursuant to Section 30 of the Small Claims Court Act, and the documents were produced without calling the makers. **Submissions** 1. The Appellant faults the trial court for ignoring the entire evidence on record, especially the 2nd Respondent’s Witness Statement and that of the Appellant, and therefore erred in finding the Appellant 50% liable for causing the accident. He urges the court to find the Respondents 100% liable for causing the accident, and cites ***Multiple Hauliers (E.A) Ltd v Justus Mutua Malundu & 2 others [2017] eKLR***. 2. The Respondents urge that while a police abstract may serve as prima facie evidence that an accident occurred, it does not in itself establish negligence, and cite ***Helle Sejer Hansen & 2 Others v Julius Kakungi Mukavi [2020] eKLR***. According to them, the Appellant’s failure to demonstrate the 2nd Respondent’s speed or the conditions of the road, or to produce any independent witness, left gaps in his case. They rely on ***Christine Kalama v Jane Wanja Njeru & Another [2021] eKLR***, citing the principles in ***Caparo Industries PLC v Dickman [1990] 1 All ER 568 and Chun Pui v Lee Chuen Tat [1988] RTR 298***, that liability in negligence requires the existence of a duty of care, a breach of that duty, a causal connection to the damage, and that the damage be reasonably foreseeable. They urge that the Appellant owed a reciprocal duty of care to the Respondents and other motorists, and his alleged conduct of suddenly braking or failing to indicate a change in speed may have been a proximate cause of the accident. They urge that given that each party had a duty to exercise caution on the road, the trial court’s apportionment of liability at 50:50 was just, reasonable, and supported by the evidence adduced. **Analysis and determination** 1. From the grounds of appeal as framed, the sole issue for determination is whether the apportionment of liability equally between the parties was proper. 2. He who alleges must prove! See section 107-109 of the Evidence Act. 3. The Appellant recorded in his statement dated 8/4/2024, which was adopted as his evidence, that, ***“I was driving towards Mwea direction from Embu, while on my lawful lane. While at Nyangati area, I saw a motor vehicle registration number KDK 607 F, which was being driven behind me, and seemed to be driven at a very high speed because it was approaching me so fast. There was a bump ahead of me so I slowed down so that I could drive over the bump. All of a sudden my motor vehicle was hit at the rear by motor vehicle registration number KDK 607 F, which was being driven behind me. I immediately stopped my vehicle and walked to check on the extent of the damage, and realized that my car had sustained extensive damages, at the rear. We checked the same together with the driver to KDK 607 F, who was the 2nd Respondent. Fortunately, I did not sustain any bodily injuries.”*** 4. On her part, the 2nd Respondent recorded in her statement dated 21/5/2024 that, ***“I was driving from Embu to Nairobi along Mwea Nairobi road at a speed of about 10 kph. In front of me there was another vehicle (KCA 197 K) which was moving at a slow speed that accidentally got hit by my car (KDK 607 F) and this caused us a minor scratch on the layer bumper.”*** 5. The Appellant contended that he slowed down to drive over a bump ahead when the 2nd Respondent, who was allegedly driving at an excessive speed, rammed into him from behind. In rejoinder, the 2nd Respondent attributed the occurrence of the accident to the Appellant’s slow manner of driving and denied that she was speeding. 6. On the evidence, this court finds it more probable than not that the Appellant did in fact slow down to drive over the bump, and had the 2nd Respondent been driving at the purported speed of 10kph, she ought reasonably to have observed the Appellant slowing down ahead, exercised due care and applied brakes in good time to avert the accident. The mere fact that the Appellant sustained no bodily injuries does not, in itself, establish negligence on his part or absolve the 2nd Respondent from liability. 7. Sight must not be lost of the fact that the burden of proof on the Appellant was, at all times, on a balance of probabilities, and not higher. 8. Consequently, this court finds that the Respondents were 100% liable for the accident, and the trial court’s apportionment of liability at 50% was erroneous and unsupported by the evidence on record. Had the trial court evaluated the evidence led together with the submissions on record, with the thoroughness that was required of it, it would have probably arrived at a different conclusion. **ORDERS** 1. Accordingly, for the reasons set out above, the court finds the Appellant’s appeal is merited, and it is allowed in the following terms: 1. The trial court’s apportionment of liability at 50:50 is set aside and substituted with a finding that the Respondents shall bear 100% liability. 2. The Respondents shall pay the costs of the appeal to the appellant. *Order accordingly.* **DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. K. Ndolo for the Appellant. Mr. Kimani for the Respondent.