https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11108

Chemugo v Muyembe (Suing as the Administratrix of the Estate of the Late Benjamin Lumadi Nzaka) (Civil Appeal E225 of 2023) [2026] KEHC 11108 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 11108 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E225 of 2023 JRA Wananda, J May 22, 2026 Between Philip Kigen Chemugo Appellant and Maureen Musanga Muyembe (Suing as the Administratrix of the Estate of the Late Benjamin Lumadi Nzaka) Respondent (Appeal from the Judgment dated 19/10/2023 delivered in Eldoret CMCC No. E024 of 2022 by Hon. B. K. Kiptoo - Principal Magistrate) Judgment 1.This Appeal arises from the above suit in which the Respondent (as Plaintiff) sought compensation for the death of her 47 years old husband, which arose as a result of injuries suffered in a road accident that occurred on 16/01/2019. The Appeal challenges the trial Court’s findings and award both on liability and quantum. 2.As this was a case of a collision between two vehicles, the trial Court apportioned liability as between the Appellant (owner of one motor vehicle) and the Respondent’s husband (driver of the other motor vehicle) at 50:50, and thus entered Judgment in favour of the Respondent in the following terms, plus costs and interest: Loss of expectation of life Kshs 100,000/- Pain & suffering Kshs 100,000/- Loss of dependency Kshs 1,600,000/- Total Kshs 1,800,000/- Less 50% Kshs 900,000/- Plus special damages Kshs 924,000/- Grand total Kshs 1,824,500/- 3.The award for “loss of dependency” at Kshs 1,600,000/- (computed as Kshs 20,000/- for 12 months x 10 years x 2/3) was based on the following parameters: Multiplicand (monthly earning) Earning years (multiplier) Dependency ratio 20,000/- 10 2/3 4.The suit was instituted by way of the Plaint dated 13/01/2022, filed through Messrs G.K. Okara & Co. Advocates. Suing as the legal representative of the deceased, the Respondent pleaded that the Appellant was the owner of the motor vehicle registration number KAJ 333A (hereinafter referred to as “the lorry”), while the deceased was the driver of the motor vehicle registration number KBA 100H (hereinafter referred to as “the matatu”), that on 16/01/2019, the deceased was driving the matatu along the Kitale-Eldoret Road when near Jaribu Kokoto area, the Appellant’s driver so negligently, carelessly and/or recklessly drove, managed and/or controlled the lorry causing it to loose control and collide into the matatu occasioning the deceased fatal injuries, a result whereof the Respondent suffered loss and damage. 6 survivors of the deceased (Plaintiff and 5 children) were then named, and particulars of negligence against the Appellant and his driver were also listed. Special damages was also particularized and claimed at the sum of Kshs 950,450/-, together with general damages, costs of the suit, and interest. 5.In response, the Appellant, through Messrs A.K. Chepkonga & Co. Advocates, filed the Statement of Defence dated 31/01/2022 whereof the allegations of negligence were denied. Blame for the accident was also attributed to the deceased for, among others, carelessly and recklessly driving the matatu. 6.After determination of several interlocutory matters, including allowing of an Application seeking setting the aside of default Judgment entered earlier, the matter proceeded for trial in which the Respondent called 2 witnesses, while the Appellant called 4. Respondent’s (Plaintiff) Witness testimonies before the trial Court 7.PW1 was the Respondent, Maureen Musanga Muyembe. She adopted her Witness Statement and reiterated that she is the widow of the deceased. She testified that the accident occurred on 15/01/2019 while the deceased died on 11/07/2019, after remaining admitted in hospital throughout the intervening 7 months period until his death. She then produced her supporting documents, and stated that the deceased used to support the family and he used to earn a monthly income of Kshs 30,000/- as a driver although she did not have anything to prove so. She stated that she now depends on her own meagre salary of Kshs 13,000/- as a nursery school teacher. In re-examination, she stated that the deceased used to earn about Kshs 1,000/- Kshs 1,500/- per day. 8.PW2 introduced himself as Police Constable Simon Nyangeri from the Moi’s Bridge Police Station. He produced the Police Abstract confirming occurrence of the accident involving the lorry and the matatu at Jaribu Kokoto, while the matatu was being driven towards Kitale. He stated that the case, at the time he testified, was still pending in Court as an inquest. In cross-examination, he agreed that he was not the Investigating Officer but insisted that he was involved in the investigations. He then confirmed that he had the police file with him, and stated that from the sketch plan, the point of impact was on the left side as one heads towards Eldoret from Kitale, which was the Appellant’s (lorry’s) correct lane. According to him therefore, it is the deceased (matatu driver) who left his lane, and was thus to blame. Appellant’s Witnesses’ testimony before the trial Court 9.DW1 was the Appellant, Philip Kigen Chemugo. He, confirmed that he was the owner of the lorry and adopted his Statement. He blamed the deceased for the accident as he asserted that the lorry was moving uphill. He also testified that the case against his driver was dismissed. In cross-examination, he agreed that he was not at the scene. In re-examination, he stated that he visited the scene and observed that the collision occurred on the left side facing Eldoret. 10.DW2 was Fredrick Onchiri Ndada. He introduced himself as a transporter and testified that he was onboard the Appellant’s lorry on 16/01/2019 when as they were approaching Nangili, at Jaribu Kokoto, on a bend, the approaching matatu lost control, veered off to the lorry’s lane facing Eldoret, and crossed the yellow line. He then adopted his Witness Statement and he, too, blamed the deceased for causing the accident. In cross-examination, he agreed that he was not the driver of the lorry, and also that he has nothing to show that he was a passenger therein. He also agreed that he did not go the police station and he, too, stated that there was an ongoing inquest. He stated further that the accident was a head-on collision. In re-examination, he clarified that he was the turnboy. 11.DW3 was Keter Kiprop. He introduced himself as the driver of the Appellant’s lorry when it was involved in the accident, and that he was accompanied by his turnboy, Fred Ndeda (DW2). He testified that he was driving from Moi’s bridge and on reaching Jaribu Kokoto at a point with a sharp corner, he saw the descending matatu moving towards Kitale, the matatu veered from its lane and hit the lorry in a head-on collision. He adopted his Witness Statement and blamed the driver of the matatu (the deceased herein) for careless driving and driving on the wrong lane. In cross-examination, he confirmed that the lorry was owned by the Appellant. He, too, stated that there is an ongoing inquest in regard to the accident, and agreed that this meant that no one had been blamed, at that stage, for causing the accident. 12.DW4 was, again, strangely, the same Corporal Nyangeri, who had already testified as PW2. He reiterated that he was attached at the Moi’s Bridge Police Station handling traffic duties, and testified that when he was informed of the occurrence of the accident on 16/01/2022 at about 1325 hours, he rushed to the scene where he found the lorry and the matatu, that the matatu was being driven from Eldoret to Kitale when it lost lane and hit the lorry in a head-on collision, as the lorry was being driven on the opposite lane. He reiterated that the point of impact was on the right side facing Kitale, which was the lorry’s lane. He, as such, again blamed the matatu for being driven carelessly. He then produced copies of an extract from the Police Occurrence Book (OB), the covering letter, and post-accident Inspection Reports for the two vehicles, which were both found with no pre-accident defects. In cross-examination, he stated that he is currently retired and agreed that although there were many police officers at the scene, it is only him who has returned to testify. He also agreed that he had not produced any Police Abstract, that he had nothing to show that he visited the scene, and that the inquest was initiated because there was no clarity on who was to blame for causing the accident. He also agreed that he was not the author of the sketch plan. 13.At this point, a related file, Eldoret CM No. 522/19 was produced by consent as an exhibit. 14.As aforesaid, after the trial, the Court entered Judgment against the Appellant as aforesaid. However, aggrieved by the decision, the Appellant filed this Appeal on 8 grounds as follows:i.That the Learned Magistrate erred in law and fact in apportioning liability at 50:50 for negligence without taking into account the evidence on recordii.That the Learned Magistrate erred in law and fact in failing to appreciate the fact that the Respondents failed to prove their case against the Appellant as required in law and ought to have dismissed their caseiii.That the Learned Magistrate erred in law and fact in failing to take into account the evidence on record hence arriving at the wrong decision.iv.That the Learned Magistrate erred in law and fact in adopting the wrong principles in assessment of the damages payable to the Respondent thereby arriving at an erroneous decision.v.That the Learned Magistrate erred in law and fact in awarding damages which were excessive in the circumstances in view of the evidence adduced.vi.That the Learned Magistrate erred in law and fact in failing to properly discount the multiplicand.vii.That the Learned Magistrate erred in law and fact in over relying solely on the evidence of the Respondents hereinviii.That the Learned Magistrate erred in law and fact by disregarding the submissions and the authorities of the Appellant. 15.The Appeal was then canvassed by way of written Submissions. The Appellant’s Submissions is dated 24/10/2025, while the Respondent’s is dated 19/01/2026. Appellants’ Submissions 16.In his Submissions, though replete with unnecessary repetitions and duplications, on the issue of liability, Counsel for the Appellant basically contended that the Respondent failed to prove her case as required under Section 107 and 108 of the Evidence Act insofar as she did not shed any light on who was liable for the accident as she did not witness the accident. He also pointed out the traffic officer’s (PW2) testimony that the point of impact was on the left side of the road as one is heading towards Eldoret from Kitale, and submitted, as such, on the correct lane of the Appellant’s lorry, and that it is the deceased who left his lane, and thus to blame. He also pointed out that PW2 was the Respondent’s own witness but blamed the deceased, and exonerated the Appellant’s driver. He therefore faulted the trial Court for apportioning liability at 50:50 in the absence of any evidence to support such finding, and without giving any reasons thereof. He submitted that the Judgment, by not containing any reasons, failed to comply with the requirements of Order 21 Rule 4 of the Civil Procedure Rules. He also observed that the trial Magistrate stated, in his Judgment, that he had dealt with a related matter, Eldoret CMCC No. 522 of 2019, in which, according to Counsel, the trial Magistrate had found the driver of the matatu (the deceased herein) to have been 100% liable. Counsel thus submitted that the Magistrate was therefore estopped from turning around to apportion liability at 50:50 over the same accident. On the issue of quantum, Counsel faulted the trial Magistrate for adopting a multiplicand of Kshs 20,000/- on the basis that the “minimum wage” was too low. He observed that the Respondent having testified that she did not have any records of the salary or income that the deceased used to earn, the “multiplier” method was not suitable for calculating damages for “loss of dependency”, and the Court ought to have, in the circumstances, adopted the lump sum “global award” method. He submitted further that even if the “multiplier” method was to be applicable, the adoption of the multiplicand of Kshs 20,000/- was also not suitable since that figure was never pleaded, and was also not proved. He also faulted the trial Magistrate for adopting the 2/3 dependency ratio in the absence of any evidence to support it. In the end, he proposed a lumpsum global award of Kshs 450,000/-, if any is to be awarded. He cited several authorities in support of the various assertions he made hereinabove. Respondent’s Submissions 17.Counsel for the Respondent, on his part, observed that the Appellant’s driver (DW2) testified that before the collision, he saw the matatu being driven and even had the opportunity to discuss with his turnboy, and/or question, the manner in which the matatu was being driven. He also observed that the Appellant’s driver stated that the accident had been referred to an inquest which was still pending by then. Regarding the turnboy (DW3), Counsel submitted that there was nothing to ascertain that he was indeed a passenger in the lorry. Regarding the traffic officer (PW2/DW4), he pointed out his admission that he was not the Investigating Officer. He also submitted that the traffic officer did not have anything to prove that he visited the scene, and that although he admitted that there were many police officers at the scene, it is only he who had testified, twice, in the case. Counsel observed further that the traffic officer had not produced any single Witness Statement from an eye-witness, and that the Police Abstract did not attribute blame as the matter was indicated to be still under investigation. He also observed that the reference of the matter to an inquest was indication that the manner in which the accident occurred was unclear. He also pointed out that the sketch plan that was produced was a rough sketch plan, and that the traffic officer who testified is not the one who made the entries in the Occurrence Book, and was also not the author of the covering report. Counsel therefore termed the traffic officer’s testimony as mere hearsay. In the end, he submitted that from the testimony of the driver of the lorry, it is evident that he had the opportunity to avoid the accident but he did not do anything to do so, not even swerve. He thus defended the trial Court’s finding of 50:50 apportionment of liability. On the issue of quantum, he submitted that award of damages was at the discretion of the trial Magistrate, which the Magistrate exercised lawfully. He, too, cited several authorities in support of the various assertions he made hereinabove. Determination 18.As reiterated in a plethora of cases, this being a first appellate Court, its role is to evaluate, re-assess and re-analyze the evidence before the trial Court and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. (see the case of Kenya Ports Authority vs Kuston (Kenya) Ltd. [2009] 2 EA 212) 19.The issues that call for determination in this Appeal are evidently the following:i.Whether the apportionment of liability by the trial Court at 50:50 between the two drivers was justified.ii.Whether the trial Court’s award for “loss of dependency” were based on proper legal principles. 20.Regarding the extent of the powers of an Appellate Court, it is settled that an appellate Court will only interfere with the conclusions and findings of a trial Court if the same were not supported by evidence or were premised on wrong principles of law. This was the restated in the case of Mwangi V. Wambugu (1984) KLR 453, as follows:“A court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding and an appellate court is not bound to accept the trial Judge’s finding of fact if it appears either that he has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 21.The same principles had earlier been set out in the celebrated case of Peters v. Sunday Post [1958] E.A. 424, and also restated in the subsequent Kenyan Court of Appeal case of Kiruga v. Kiruga & Another [1988] KLR 348. 22.It is also trite law that “he who alleges must prove", which principle is anchored in Section 107 of the Law of Evidence Act. On this principle the Court of Appeal in the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] eKLR stated as follows:“… As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act Cap 80, which provides:“107. (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…” 23.The Court of Appeal, further in the case of Eastern Produce (K) Ltd V. Christopher Atiado Osiro [2006] eKLR, stated that the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. 24.The instant case was a head-on collision between the lorry and the matatu as a result whereof the driver of the matatu (Respondent’s husband) died 7 months later after remaining admitted in hospital throughout the intervening period. The only eye-witnesses who testified were therefore the driver of the lorry (DW2) and his turn-boy (DW3). Both blamed the deceased and testified that it is the deceased who, while negotiating a sharp corner, lost control and veered into the oncoming lorry’s lane thus causing the head-on collision. According to them, the lorry was being driven uphill towards Eldoret, while the matatu was descending towards Kitale. Not being independent witnesses, the testimonies of the driver of the lorry and his turnboy’s must be treated with caution since they had an interest in the outcome of the case, being the Appellant’s employees or agents, and also had an interest in “saving” themselves from any other ongoing proceedings, if any, or future claims to which they may be called upon to answer. Their testimonies have to therefore be treated with caution, and also be carefully weighed against the rest of the evidence adduced on record. 25.The traffic Officer from Moi’s Bridge Police Station, Police Constable Simon Nyangeri, testified twice, first, as PW2, upon being called by the Respondent, and again, as DW4, upon being called by the Appellant. On both occasions, he, too, blamed the deceased and testified that it is the deceased who, while negotiating a sharp corner, lost control and veered into the oncoming lorry’s lane causing the head-on collision. His testimony was therefore the same as that of the driver of the lorry (DW2) and the turnboy (DW3). He also produced the police file which contained the copies of the Occurrence Book (OB) extract, covering letter describing the manner in which the accident occurred, and sketch plan, among others, which all were to the effect that the collision occurred on the oncoming lorry’s correct lane. As correctly observed by Counsel for the Appellant, and as already stated, the traffic officer first testified as the Respondent’s own witness when he gave the above testimony and account. 26.On the part of the Respondent, she was not an eye-witness as she was nowhere near the scene of the accident when it occurred. Her testimony did not therefore relate to explaining how the accident occurred. This is obviously why she called the traffic officer (PW2) to come and testify. However, as observed above, the traffic officer’s evidence went against her as it’s effect was to exonerate the Defendant she had sued, since he, instead blamed the Respondent’s deceased husband, driver of the matatu for causing the accident. Considering the trajectory of the traffic officer’s testimony, one wonders whether the Respondent’s legal team had even made any effort to peruse the police records prior to making the suicidal step of calling the traffic officer as a witness to produce the same. 27.What is strange is that the Respondent (Plaintiff), although the case she brought to Court was that the Appellant’s driver negligently, recklessly, and/or carelessly drove the lorry and thus caused the collision with the matatu, no effort was made to demonstrate this position. Instead, the Respondent’s legal team resorted to simply grappling to find holes to poke in the accounts given by the Appellant’s witnesses, with no attempt whatsoever, made to advance her own case as the Plaintiff. Since this Court, as a first appellate Court, is obligated to evaluate, re-assess and re-analyze the evidence before the trial Court and draw its own conclusion, the Respondent’s team appears to have forgotten that she was the one who bore the burden of proof at the trial Court, and not the Appellant. 28.In attempting to poke holes at the Appellant’s case, Counsel for the Respondent observed that the Appellant’s driver (DW2) testified that before the collision, he saw the matatu being driven and even had the opportunity to discuss with his turnboy, and/or question, the manner in which the matatu was being driven. In his view therefore, the driver of the lorry had the opportunity to avoid the accident but he did not do anything to do so, not even swerve. I do not think the evidence on record is sufficient to make an assertion of that nature considering that noticing a carelessly driven vehicle approaching and the actual realization of an imminent actual collision with the carelessly driven vehicle so as to take a precipitate action such as swerving, is not necessarily a gradual process. It may involve a split-second decision-making. In any event, failure to swerve away from a carelessly driven vehicle, cannot, without further evidence of omission, by itself exonerate the careless driver from full blame. A determination on whether the driver of the lorry had ample opportunity to take precipitate action can therefore be only made on clear and cogent evidence, not on speculation and theoretical assumptions. 29.Counsel also submitted that the fact that the matter had been referred to an inquest, which was still pending, was indication that the explanation on the manner in which the accident occurred was not clear. First, being the Plaintiff, the Respondent could, with that knowledge, perhaps applied to stay the hearing of the trial Court case to await determination of the inquest. By deciding to prosecute her case to the end despite being aware of the existence of the inquest, the Respondent is presumed to have allowed the Court to make its own factual determination independent of the inquest. Secondly, no evidence of existence of the inquest was even produced, not even the inquest number, or the stage at which it had reached. The only instance where I cane across the issue of the inquest was mentioned is in the covering letter authored by the Investigating Officer, who, after blaming the deceased for causing the accident, still proceeded to recommended the initiation of an inquest. Whether this recommendation was actually accepted and/or acted on or whether the inquest was even commenced is not indicated. 30.Regarding the turnboy (DW3), Counsel for the Respondent submitted that there was nothing to ascertain that he was indeed onboard the lorry. On this, I would simply say that the turnboy testified in Court and was cross-examined. The Respondent’s legal team therefore had the opportunity to put him to test and if an impersonator, expose him as so. However, no controverting evidence was presented to indicate that the turnboy was not in the lorry at the time of the accident, and his testimony therefore remained unshaken. It is also not clear what nature of documentary evidence Counsel had in mind ought to have been produced by the turnboy to prove that he was aboard the lorry. 31.Regarding the traffic officer (PW2/DW4), Counsel pointed out his admission that he was not the Investigating Officer, that he did not have anything to prove that he visited the scene, and that although he admitted that there were many police officers at the scene, it is only he who had testified, twice. Counsel also contended that the traffic officer did not produce any single Statement from an eye-witness, and that the Police Abstract did not attribute blame as the matter was indicated to be still under investigations. He also pointed out that the sketch plan that was produced was a rough sketch plan, and that the traffic officer (PW2/DW2) is not the one who made the entries in the Occurrence Book, and was also not the author of the covering report. 32.My observation to these issues is that, as aforesaid, DW4 first testified as the Respondent’s own witness, PW2. Although the Respondent has resorted to poking holes in the traffic officer’s testimony, it is her who presented him as a witness in the first place. The Respondent’s legal team having not asked the trial Court to declare PW2 to be a hostile witness, cannot now turn around and disown its own witness’ testimony merely because the evidence he gave turned out to be against the Respondent. The Respondent’s legal team did not also raise any objection to the same traffic officer, having testified as their witness (PW2) again returning to testify as the Appellant’s witness (DW4). The police file, the Occurrence Book, the sketch plan, and the covering letter he produced were also not alleged not to have originated from the Moi’s Bridge Police Station, within whose jurisdiction the accident occurred, to which the accident was reported, and which then handled investigations and compiled the relevant documentation in regard to the accident. PW2/DW4 did not need to be the Investigating Officer to come and produce the police file. He may not have authored the documents contained in the police file, but what he produced was not demonstrated to have originated from elsewhere or that it was not the genuine police file. Perusing the lower Court file, I have also established that the traffic officer came to Court to testify pursuant to Witness Summons applied for by the parties themselves. He did not therefore come on a frolic of his own. His capacity to produce the police file was also never challenged. There would therefore be no reason at all why the contents of the police file he produced should be doubted or disbelieved in the absence of any contrary or contradictory evidence presented. 33.It is true that in road accident cases, where the Plaintiff, as herein, cannot establish clear blame on the Defendant he has sued, it would be easy to outrightly dismiss the suit on the ground that it is he (the Plaintiff) who bore the duty to prove his case on a balance of probabilities, which duty he has failed to discharge. The legal position in cases of this nature is however not that automatic. I say so because it is now generally agreed that where the evidence on record is not sufficient to attribute liability, both parties may, in some circumstances, bear equal liability. I cite, for instance, the Court of Appeal case of Hussein Omar Farah v Lento Agencies [2006] eKLR, in which it was held as follows:“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.” 34.There is also the other Court of Appeal case of Anne Wambui Ndiritu (Suing as Administrator of the Estate of George Ndiritu Kariamburi -Deceased) v Joseph Kiprono Ropkoi & Four by Four Safaris Company Ltd [2004] KECA 65 (KLR), in which the Court held that:“We have looked at the pleadings on the both sides in this matter. The plaintiff asserted that the accident was solely caused by the negligence of the defendant’s driver and gave particulars of such negligence which the defendants denied. The defendant also asserted that the accident was solely caused by the negligence of the motorcyclist and gave particulars of contributory negligence. Issues were subsequently joined on such pleadings. In the event each party was under a duty to prove their own assertions but they did not do a good job for it.We have considered the submissions of both counsel, the authorities cited before us and we are persuaded by Mr. Mwangi learned counsel for the appellant that we must interfere with the judgment of the superior court. There is no doubt that an accident occurred between the two vehicles on the Nyeri - Mweiga road at the time stated by the two witnesses. In our assessment of the scanty evidence on record however both the lorry driver and the motorcyclist failed to exercise the degree of care and skill reasonably to be expected of a person driving a vehicle on a public highway. They were in our view equally to blame. We therefore apportion liability for the accident at 50/50.” 35.Is the instant case one that falls into the 50:50 liability category contemplated above? I do not think so. In my view, there was sufficient evidence before the trial Court to demonstrate that it is the deceased, driving the matatu towards the Kitale direction, who failed to safely negotiate a sharp bend, lost control, and thus veered into the opposite lane along which the lorry approaching from the direction of Eldoret was being driven. As a result, the two vehicles collided into each other head-on. There is sufficient evidence that the point of impact was on the lorry’s correct lane. How then can the two drivers be held equally liable when the there is no evidence on record suggesting any negligence on the part of the lorry driver? 36.On the guidance of the case of Mwangi V. Wambugu (supra), I am satisfied that the trial Magistrate’s findings of 50:50 liability was based on no evidence, on a misapprehension of the evidence, and that he acted on wrong principles. 37.In this case, clearly, no proof of liability was established against the Respondent’s driver. It is indeed a painful verdict to reach even for myself considering that the family of the deceased lost a father and the breadwinner. They must still be in agony for that loss considering the suffering he underwent for 7 months while admitted in hospital before his demise. However, this is a Court of law, not a forum for offering sympathy. It follows therefore that this Court must base its decision on the basis of evidence placed before it, and not on extraneous facts. 38.The above is because liability for a road or motor vehicle accident is not automatically assumed simply because an accident occurred. It is not a case of strict liability. Instead, the injured party (Plaintiff) bears the burden of proving that the other party was negligent. It is a difficult decision for me read out but I have to do what is right and what is right in the circumstances of this case, is to appreciate that the Appellant and/or his driver cannot be penalized for an act or omission which they have not been demonstrated to have been guilty of. Doing so would be to abdicate my obligations as a Judicial officer who swore to uphold the law. 39.Having found as above, there is no longer any reason for me to deal with the issue of the assessment and award of damages, which now falls by the wayside. Final Orders 40.In the end, I rule and order as follows:i.The Judgment dated 19/10/2023 delivered in Eldoret CMCC No. 225 of 2023 apportioning liability as between the drivers of the two motor vehicles involved in the accident the subject thereof at the ratio of 50:50, is hereby set aside, and substituted with an order that the suit is dismissed with costs to the Appellant.ii.As costs follow the event, the Appellant is also awarded the costs of this Appeal. DELIVERED, DATED AND SIGNED AT ELDORET THIS 22ND DAY OF MAY 2026……………..……..WANANDA JOHN R. ANUROJUDGEDelivered in the Presence of:Mr. Chepkonga for the AppellantMs. Chebet h/b for Mr. Okara for the RespondentCourt Assistant: Rodgers Tshombe