https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10220

Odero v Waruri (Civil Appeal E328 of 2024) [2026] KEHC 10220 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10220 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E328 of 2024 TW Ouya, J July 2, 2026 Between Philip Otieno Odero Appellant and James Wang’ombe Waruri Respondent (Being an appeal from the whole judgment of Hon. L.D. Ogombe (P.M.) in Thika CMCC No. E376 of 2023 delivered on 13{{^th}} day of November 2024) Judgment 1.The Appellant instituted proceedings in the subordinate court seeking compensation for personal injuries sustained in a road traffic accident on 1st April 2022. The accident involved Motor Cycle registration number KMFK 642R, ridden by the Appellant, and Motor Vehicle registration number KCQ 252Y, then under the control of the Respondent’s authorized driver. This appeal arises from the outcome of those proceedings. 2.By a plaint dated 14th August 2023, the Appellant filed suit at the Thika Chief Magistrates Court seeking damages for injuries sustained in a road traffic accident. He alleged that while riding along Juja Service Lane at Ndarugu entrance, the Respondent’s driver negligently managed Motor Vehicle KCQ 252Y, causing it to collide with his motorcycle. 3.The Appellant attributed negligence to the Respondent for failing to keep a proper lookout, failing to yield the right of way, driving without due care, and failing to control or slow the vehicle to avoid the accident. He suffered a fracture of the right proximal tibia and claimed special damages of KES 7,350, further contending that the injuries caused permanent incapacitation and diminished his earning capacity. 4.The Respondent filed a defence denying negligence and instead blamed the Appellant for disregarding other road users. At trial, the Appellant testified alongside a police officer from Juja Police Station, who produced a police abstract confirming the accident and, in oral evidence, blamed the Respondent’s driver. The Appellant maintained that the vehicle was being driven in the wrong direction when it struck him. 5.The Defence called the driver, Milcah Nyokabi Njuguna, who admitted being in control of Motor Vehicle KCQ 252Y but maintained that the Appellant entered the service lane at the exit point. She produced police abstract attributing fault to the Appellant, which, though not produced by its maker, was admitted into evidence by consent. 6.In her judgment, the trial magistrate observed that the parties had produced conflicting police abstracts. The Appellant’s abstract dated 20th April 2022 referred the matter to insurance, while the Defendant’s abstract dated 2nd April 2022 blamed the Appellant. The maker of both abstracts, PC Mwiti, was not called to testify, and the occurrence book entry relied upon by the Appellant was not produced in evidence. The magistrate noted that the abstract produced by the Appellant did not expressly attribute fault to the Respondent’s driver. 7.The court held that for a negligence claim to succeed, the Appellant was required to prove, on a balance of probabilities, that the Respondent owed him a duty of care, breached that duty, and caused his injuries. In the absence of definitive evidence establishing breach, the magistrate found that the Appellant had failed to discharge this burden. She concluded that the Respondent had sufficiently rebutted the allegations of negligence and accordingly dismissed the suit. 8.The Appellant, being dissatisfied with the judgment of Hon. L.D. Oyombe (PM) delivered on 13th November 2024 in Thika CMCC No. E376 of 2023, appealed to this Honourable Court against the said decision and sets forth the following grounds of appeal:i.The learned trial magistrate erred in law and fact by failing to judiciously analyze the appellant’s evidence, submissions on record, and the authorities cited, thereby erroneously finding that the appellant had not established his case on a balance of probabilities. This conclusion was manifestly unjust and tantamount to a miscarriage of justice.ii.The learned trial magistrate erred in law and fact by disregarding the appellant’s evidence on the manner of occurrence of the accident and solely relying on the respondent’s evidence, which was unsubstantiated, unmerited, and lacked credibility. This led to the dismissal of the appellant’s suit, a decision that was wholly erroneous and legally untenable.iii.The learned trial magistrate erred in law by failing to appreciate the standard of proof required of the appellant in a civil suit of this nature, and by failing to properly evaluate the overwhelming evidence adduced by the appellant proving liability on the part of the respondent. The resultant decision was manifestly unjust and occasioned a miscarriage of justice.iv.The learned trial magistrate erred in law and fact in dismissing the appellant’s suit on grounds that liability was not proved against the respondent, despite overwhelming evidence to the contrary. The magistrate further erred in failing to assess and determine that the appellant’s evidence competently rebutted the respondent’s evidence, thereby arriving at a prejudicial, manifestly erroneous, and legally untenable decision.v.The appellant shall, upon receipt of the typed proceedings, file a supplementary memorandum of appeal to include other grounds and reasons that may become apparent. 9.The Appellant seeks for the Court to grant the following orders:i.Set aside the judgment of the lower court delivered on 13th November 2024 dismissing the appellant’s suit.ii.Re-analyze the evidence and submissions on record and make a finding on liability in favor of the appellant.iii.Uphold the proposed award of the trial court on quantum.iv.Order the respondent to pay the costs of the lower court and of this appeal.v.Order the respondent to pay interest on the award from the date of judgment of the trial court until determination of this appeal and payment in full, and interest on special damages from the date of filing the primary suit until payment in full. 10.The matter was canvassed by way of written submissions pursuant to court directions issued on 12th September 2025. 11.Counsel for the appellant blamed the respondent for causing the said accident. In his testimony before the trial court, the appellant stated that the respondent was driving motor vehicle KCQ 252Y carelessly, at high speed, and in the wrong direction, when the said vehicle collided with him. 12.The appellant contends that the evidence of the police officer was neither challenged nor impeached during cross‑examination. Although the witness was not the investigating officer, his testimony was based on official records in his custody, namely the police abstract and the occurrence book, which, in the appellant’s view, lend credibility to his account of events. The appellant faults the trial magistrate for dismissing the evidence of the police officer simply on the grounds that the occurrence book excerpt was not produced. 13.The submissions challenge the trial court’s dismissal of the Appellant’s case, arguing that the magistrate erred by relying solely on conflicting police abstracts without properly analyzing the totality of the evidence. The Appellant emphasizes that the police officer (pw1) produced an abstract extracted from the occurrence book and testified credibly, yet the court disregarded this evidence simply because the occurrence book itself was not produced. They contend that mere admission of a document, such as the Respondent’s abstract, does not amount to proof, citing the case of Kenneth Nyaga Mwige v Austin Kiguta and 2 Others (2015) eKLR. 14.The Appellant further argues that the Respondent’s abstract was issued the day after the accident, based only on the Respondent’s statement, without the Appellant’s input or any investigation diary, sketch maps, or corroborating evidence. They submit that this abstract was one‑sided and lacked probative value. Reliance was placed upon authorities such as Muindu v Kinyanjui & Another (Civil Appeal E032 of 2022[2024] 1794 (KLR) and Stanley Oguti Attai v Peter Chege Mbugua (Civil Appeal 149 of 2016 [2019] KEHC 4940 (KLR) to show that courts have previously set aside dismissals where abstracts were relied upon without balanced investigation or scrutiny. 15.Additionally, the Appellant points out that the Respondent’s driver admitted to applying emergency brakes, which they argue indicates excessive speed under the circumstances. This, they submit, demonstrates negligence and breach of duty of care owed to other road users. 16.In conclusion, the Appellant urges the appellate court to re‑evaluate the evidence, set aside the dismissal, and hold the Respondent 100% liable for the accident, stressing that the trial court failed to properly weigh the probative value of the evidence and erred in relying on untested police abstracts. 17.The Respondent’s submissions support the trial court’s dismissal of the Appellant’s claim, arguing that negligence was not proven on a balance of probabilities. They emphasize that the Appellant failed to demonstrate that the Respondent’s driver breached any duty of care, and instead contend that the Appellant was to blame for the accident by joining the service lane at the wrong point, thereby obstructing traffic. The Respondent relies on both police abstracts and witness testimony to show that the Appellant’s actions were careless and created danger to other road users. 18.The submissions highlight that the trial magistrate correctly noted conflicting accounts of the accident and found insufficient evidence to hold the Respondent liable. They argue that the Appellant’s own testimony confirmed he was joining the service lane improperly, and that the Respondent’s driver was lawfully observing traffic rules. Authorities such as Techard Steam & Power Ltd v Mutio Muli & Mutua Ngao (2019) eKLR and Peter Kanithi Kimunya v Aden Guyo Haro (2014) eKLR are cited to reinforce that police abstracts alone are not conclusive proof of negligence, but the surrounding circumstances clearly pointed to the Appellant’s fault. 19.On quantum, the Respondent submits that the trial court’s award of general damages had liability been established, was excessive given the nature of the injuries - a fracture of the proximal tibia with no permanent disability. They propose a reduced award in the range of Kshs. 300,000, citing comparable cases where more severe injuries attracted similar or slightly higher awards. 20.In conclusion, the Respondent urges the appellate court to dismiss the appeal with costs, uphold the trial court’s findings on liability, and if damages are reconsidered, to substantially reduce the award to reflect the actual injuries sustained. 21.I have carefully considered this appeal together with the lower court record and submissions by counsel for the rival parties and isolated the following issues for determination:i.Whether this appeal is meritedii.Who should bear the costs of the appeal 22.This is a first appeal, and the duty of this court has been laid down in various decisions of this court and the court of appeal. The court of appeal in the case of Abok James Odera T/A A.J Odera & Associates -vs- Jon Patrick Machira T/A Machira & Company Advocates (Civil Appeal 161 of 1999) [2013] KECA 208 (KLR) the court stated that:“...this being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 23.The appeal centering on the issue that the trial magistrate found that the Appellant had proved the Respondent’s liability and that there is need to address the issue of the burden of proof in this matter. Generally, in civil cases the law on burden of proof flows directly from Section 107 of the Evidence Act (Cap. 80, Laws of Kenya), which provides that whoever desires a 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. 24.During the trial in the lower Court the Appellant gave evidence and lay blame on the Respondent’s driver making the Respondent vicariously liable for the accident. The Appellant called a police officer who though not the investigating officer and maker of the police abstract produced the police abstract which did not include a preliminary finding of fault on the driver of motor vehicle registration KCQ 252Y but referred the matter to the insurance. 25.The law is settled that documents must, as a general rule, be produced by their makers to ensure authenticity and to afford the opposing party an opportunity for cross‑examination. This principle is codified under Section 35 of the Evidence Act (Cap. 80, Laws of Kenya), which provides that statements contained in documents produced by persons who cannot be called as witnesses are admissible only under strict conditions. The provision underscores that documentary evidence ordinarily derives its probative value from the testimony of its author. However, the Act also recognizes exceptions, such as public documents, certified copies, and instances where parties consent to admission without calling the maker. Thus, while the default position is that the maker must produce the document, the statutory framework balances fairness with practicality by carving out limited circumstances where secondary or substituted production is permissible. 26.In the present case, PW1, a police officer from Juja Police Station, did not tender conclusive documentary evidence but, in his oral testimony, attributed blame to the Respondent for causing the accident. He stated that an earlier entry in the Occurrence Book supported that position. The learned trial magistrate, however, discounted this testimony on the basis that PW1 was not the investigating officer and had not produced the Occurrence Book extract to substantiate his averment. I agree with this position since the trial magistrate had to be satisfied that indeed the police from their investigation had a basis of laying blame on the respondent. 27.I will address the two issues simultaneously. When documentary evidence is not conclusive on liability, the court must resort to oral testimony and the credibility of witnesses. The Evidence Act recognizes that documents alone may not establish liability unless supported by direct testimony. Kenyan courts have repeatedly emphasized that documentary evidence, unless corroborated, cannot conclusively establish liability. In the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR, the Court of Appeal held that mere production of a document does not amount to proof; it must be tested through oral evidence and cross‑examination. 28.Where documentary evidence is inconclusive, the court must resort to oral testimony and credibility assessment to reach a finding on liability. In the present appeal, the appellant alleges that he was joining the service lane from the highway when the respondent, driving in the wrong direction at high speed, knocked him down. Conversely, the respondent’s witness testified that she was driving on the service lane intending to enter the highway when the appellant unlawfully joined the service lane at the exit point, thereby causing the accident. 29.The point of contention is the manner of entry and exit from the service lane. The police officer correctly stated that it is an offence to enter the service lane at the exit point. However, the respondent was never charged with obstruction. On the totality of the evidence, I am persuaded that the driver of motor vehicle KCQ 252Y was exiting the service lane at the correct point, while the appellant entered the service lane at an unauthorized exit point. Such conduct was not foreseeable to a reasonable driver. 30.Accordingly, I find that the respondent’s driver cannot be blamed for the accident. The appellant, by entering the service lane at an unauthorized point, was the author of his own misfortune. He ought to have known the consequences of such conduct. The trial court’s finding on liability is therefore upheld, and the appeal on this ground fails. 31.Having found that the Respondent was not liable for the accident after re-assessment and re-evaluation of the evidence on record, I find no need to delve on the issue of quantum. 32.The upshot of this appeal is that the same is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Keiru for RespondentMs. Mogaka for Mr. Nyantika for AppellantNyabuto – Court Assistant