https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10025

Maina v Kangaroo Shuttle Services Ltd (Civil Appeal E029 of 2025) [2026] KEHC 10025 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10025 (KLR) Republic of Kenya In the High Court at Kitale Civil Appeal E029 of 2025 RK Limo, J July 9, 2026 Between Peter Njuguna Maina Appellant and Kangaroo Shuttle Services Ltd Respondent Judgment 1.This is an appeal against the judgment of Hon Samuel .M. Mokua Chief Magistrate delivered on 20-5-2025 vide Kitale CMCC NO.E320 of 2025. 2.In that case the appellant had sued the respondent for negligence arising from a road traffic accident reported to have occurred on 7-8-2023 at 7pm along Sibanga-Moi’s Bridge. The appellant in his pleadings averred that he was a pedestrian walking along the said road when the accident occurred. He blamed the defendant’s driver for veering off his lane and knocking the appellant on the opposite side of the road. 3.The respondent on the other hand denied that an accident occurred involving its motor vehicle. The trial court upon evaluation of evidence tendered found that the appellant’s case had not been proved owing to the unexplained inconsistencies on the date of the alleged accident and the date the appellant sought treatment for the injuries sustained. 4.Aggrieved the appellant filed this appeal and the following are the grounds raised;i.That the learned trial magistrate erred both in law and fact by overlooking the overwhelming evidence adduced by the appellant.ii.That the learned magistrate erred by holding that the appellant had not proved his case to the required standard.iii.That the learned trial magistrate failed to take into account relevant and material facts on the causation of the accident and as a result reached a wrong decision of dismissing the suit.iv.That the trial magistrate erred by failing to consider authorities filed.v.That judgment on liability and quantum was unfair. 5.In his written submission dated 1-12-2025 done through learned counsel M/s D. Kisaka & Associates the appellant contends that he proved his case that an accident occurred to the required standard in civil cases and relies on the case of Ignatius Makau Mutisya –vs- Reuben Musyoki Muli (2015)eKLR where the court clarified that in civil cases the prove required is on a balance of probabilities unlike in criminal cases where the standard is higher that is beyond reasonable doubt. 6.He faults the trial court for applying a standard higher than what was required of him to prove his case. 7.He contends that he gave inconsistent dates in his evidence because of memory lapse but maintains that he testified that the accident occurred and he reported the occurrence to the police. That the police testified and tendered sketch map and Police Abstract. That eye witness PW5 (Agevi Kai) also testified that the accident occurred and he witnessed it. 8.He faults the trial court for finding that the eye witness ought to have remembered the registration number of the motor vehicle involved in the accident. He submits that Kangaroo Shuttles have distinct trademarks and invites this court to take judicial notice of the fact. That it is easy for any person to recognize the vehicles belonging to the defendant because of their distinct and unique colours. He faults the trial court for finding that it was fatal that the appellant could not remember the registration number of the accident vehicle. The appellant contends that the trial court applied too high a standard in evaluating the appellant’s case by applying the standard of beyond reasonable doubt instead of on a balance of probabilities. 9.He submits that he established a prima facie case that an accident occurred and that the burden shifted to the respondent to prove that the accident never happened. 10.He further faults the trial court for holding that failure by the eye witness to recall registration number of accident vehicle was fatal and that the respondent merely denied that the accident occurred and that the driver’s insistence that the motor vehicle was fitted with CCTV was not proved because no evidence in terms of CCTV footage was tendered. 11.He submits that the evidence of PW3, PW4 and PW5 established that the accident occurred. That the Police Abstract tendered by PW3 was in his view sufficient proof that an accident occurred. 12.He contends that the evidence he tendered at the trial in his view proved that the accident occurred and that the respondent’s driver was to blame. He relies on Nandwa –vs- Kenya Nazi Ltd (1988)eKLR. 13.He submits that the sketch maps exhibited as PExhibit 9(a) and 9)b) indicated that the point of impact was outside the road which in his view corroborates the evidence of PW5 who stated that respondent’s driver was overtaking at the time and negligently so. 14.On quantum the appellant submits that the injuries suffered, to wit fracture of left lateral malleolus and degloving left ankle, is an indication that an award in the region of Kshs.700,000/- would be fair. He relies on Sunny Hauliers Ltd –vs- Wambua (2024) KEHC 1705 (KLR) where an award of Kshs.600,000/- was given. 15.He submits that he proved special damages totaling Kshs.29,760/- with production of assorted receipts and that he pleaded for Kshs.50,000/- for future treatment going by the Doctor Sokobe’s recommendation. 16.The respondent has opposed this appeal through written submissions done by learned counsel J.M.Kimani & Co Advocate dated 8-5-2026. 17.The respondent has given a background of the case by restating the evidence adduced during trial. 18.The respondent hinges his opposition to this appeal on the material findings by the trial court. That the plaintiff did not give explanation on the disparity on the date of the accident(7-8-2023) and when he went for treatment (17-8-2023). That the eye witness did not explain how and when the accident occurred or give the details of the registration number of the motor vehicle involved. 19.It contends that the evidence tendered supports the findings of the trial court and that the decision was informed by the evidence tendered. That the trial magistrate in his judgment observed that the appellant and PW5 were not categorical on how the accident occurred. It submits that the versions given by the appellant and his witness were contradictory and not convincing. 20.It submits that its driver testified that he was not involved in an accident on the material day. That the CCTV footage was only stored for 7 days and since the claim was brought after 10 days the footage could not be availed. 21.It contends that the appellant’s reliance on evidence of PW3, the police officer who tendered Police Abstract was mistaken because Police Abstract is not conclusive proof of negligence but that it only shows that the accident occurred. It relies on the following authorities;i.Margaret Wambui Thidigwa –vs- Eliud Sidigu Otiato (2021) KEHC 8765 (KLR).ii.Z.O.S & C.A.O (Suing as legal representatives in the estate of S.A.O (dcd) –vs- Amollo Stephen (2019) KEHC 9268 (KLR).iii.Statpack Industries –vs- James Mbithi Munyao (2005) eKLR. 22.According to the respondents PW3 never conducted any investigations of his own and only relied on a report made at the station. That the witness only tendered copies of OB extract and Police Abstract which to him did not prove how the accident occurred and who was to blame. 23.This court has set out the appellant’s and respondent’s case. This is an appeal mainly on liability because the appellant faults the trial court for its finding that his case was not proved to the required standard. The main issue in this appeal therefore is whether or not the trial court’s finding was incorrect in light of the weight of the evidence tendered. 24.The role of this court as a first appellate court is to re-evaluate or re-assess the evidence tendered and reach own conclusion having in mind that unlike the trial court, this court did not get the advantage of seeing first-hand the demeanor of witnesses as they testified. 25.This court has considered the evidence tendered by the appellant in detail. He says that the respondent’s motor vehicle Reg No. KDL 188M Toyota matatu hit him when he was completely off the road along Sibanga-Moi’s Bridge Road on the left side. According to him the respondent’s motor vehicle was being driven from the opposite direction. 26.He further stated that it was on 7-8-2023 at around 7pm and that as a result of the accident he sustained serious injuries and was rushed by Good Samaritans to Kitale County Hospital for treatment. 27.The appellant’s evidence with regard to being knocked down was corroborated by Victor Agevi Kai (PW5) who stated that on 7-8-2023 at around 7pm he was a pedestrian along the scene of the accident and saw the respondent’s motor vehicle overtaking an unknown motor vehicle from the opposite direction. He stated that he saw the motor vehicle veer off the road and knocked down a pedestrian. He stated that he rushed to the scene and helped the victim and that he exchanged contacts with the father of the victim as the victim was taken to Kitale County Hospital for treatment. He stated that the motor vehicle did not stop after the accident. He stated that the side mirror hit the appellant. The appellant stated that he tried to jump but the motor vehicle violently hit him and he fell down as the motor vehicle ran over his leg. 28.The appellant’s case regarding the date of the accident and when he was taken to hospital was contradicted by evidence tendered by John Koima (PW1) who stated that he was a clinical officer at Kitale County Hospital. According to him the appellant was taken to hospital on 17-8-2023 and admitted for treatment. He stated that he was discharged on 21-8-2023. He tendered Discharge Summary as PExhibit 1. He stated that the Discharge Summary did not indicate the date the appellant was involved in the accident. 29.The appellant and his witnesses in their evidence were categorical that the accident occurred on 7-8-2023. The question that the appellant failed to offer any explanation is the disparity of the 2 dates. If it is true that he was seriously injured on 7-8-2023 then where was he until 10 days later when he was taken to Kitale County Hospital and admitted? The trial court found that the appellant had offered no explanation and realistically he cannot be faulted. Here was someone who was seriously injured after being knocked down by a motor vehicle. Ordinarily one would expect the person to be rushed to hospital and he says he was indeed rushed but the problem is the actual date he was taken to hospital. 30.The inconsistency on the date is significant in light of the denial by the respondent that he was not involved in an accident on 7-8-2023. 31.This court finds more significance on the date by the evidence tendered by Sgt Robert Biganda who tendered a copy of Police Abstract and copy of OB extract. The respondent’s counsel in his submissions raised an issue on why the police officer tendered copies rather than originals of both the Police Abstract (PExhibit 6) and OB extract (PExhibit 7) but that is belated because if the counsel had any issue with copies he should have raised it at the trial and not at this appellate stage. 32.However that notwithstanding, this court has noted from the copies of both the OB extract and Police Abstract that the OB reference number is simply stated as “OB 26”. That reference in my considered view appears incomplete because ordinarily an OB reference should contain the full particulars in terms of the date, month, year and the chronological number of the case as reported. The issue appears to have been missed by both the respondent’s counsel and the trial court but it is significant in my view given the denial of the occurrence of the accident on 7-8-2023. The P3 Form (PExhibit 5) also shows the same reference number as just OB 26. Furthermore the OB extract (PExhibit 7) does not indicate the date of the accident and without a date, the probative value of the said document is zero. It does not prove that the accident occurred. 33.The other piece of evidence presented is the inspection report (PExhibit 8). The report does not show any sign that the respondent’s motor vehicle was involved in an accident. Apart from showing that the respondent’s motor vehicle had no pre-accident defects there is nothing to support the appellant’s case with respect to causation of the accident. This was a case of hit and run and in such situations courts should treat evidence implicating a specific motorist with caution because of possibility of a mistake or mistaken identity. 34.I have also taken a look at the assorted receipts indicating that the appellant purchased drugs in some chemists shop. All the receipts do indicate that drugs were mostly purchased from 17th August 2023. None of the receipts show drugs being purchased on 7-8-2023 or even 8-8-2023. This court only noted one indicating 10-8-2023. Again there was no explanation forthcoming from the appellant who bore the burden of proof. 35.The above anomaly was not explained by the appellant. The police also did not explain why they did not prefer charges against the respondent’s driver for failing to report the occurrence of the accident if the respondent was indeed involved in an accident. 36.The trial court in light of the above cannot be faulted for reaching the conclusion he reached that the appellant’s case had not been proved. 37.The appellant was required to prove his case to the required standard which is on a balance of probabilities. In the light of the significant inconsistencies with regard to when the accident occurred visa viz when the appellant was taken or rushed to hospital, there was no prima facie case established against the respondent. The gaps noted with regard to OB reference and the absence of explanation on why the respondent’s driver was not charged for failing to report an accident on 7-8-2023 dented the appellant’s case against the respondent. The trial court reached the correct conclusion in light of the evidence tendered.In the premises this court finds that this appeal on liability lacks on merit. I do not find any necessity to go into the issue of quantum. The appeal therefore fails and is dismissed with costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 9TH DAY OF JULY , 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTJudgment delivered in open courtIn the presence ofNafula holding brief for Kisaka for the appellantIlabonga holding brief for Muhoro for the respondentDuke/Chemosop- court assistants