https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8736

Musyimi v Muasya (Suing as the Legal Representative of the Estate of Patrick Musyoki Mutua) (Civil Appeal E330 of 2023) [2026] KEHC 8736 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8736 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E330 of 2023 BM Musyoki, J June 19, 2026 Between Richard Ndonga Musyimi Appellant and Kalondu Muasya (Suing as the Legal Representative of the Estate of Patrick Musyoki Mutua) Respondent (An appeal from judgment and decree in the Chief Magistrate’s Court at Kangundo (Hon. Ole Keiwua K.D. CM) civil case number E199 of 2021 dated 28-09-2023) Judgment 1.Patrick Musyoki Mutua (hereinafter referred to as ‘the deceased’) was on 7th December 2018 riding motor cycle registration number KMDY 123V along Tala-Kangundo road when an accident involving him and motor vehicle registration number KCN 335Z belonging to the appellant occurred as a result of which he sustained fatal injuries and died on the spot. It was pleaded that, the deceased was hit by an unidentified motor vehicle and while he was attempting to get himself and the motor cycle back on their feet and out of the road, the appellant’s motor vehicle crushed him. 2.The respondent and two others (Mary Muasya and Patrick Mutua Muasya) filed suit in the trial court on behalf of the estate of the deceased claiming compensation accusing the appellant of negligence. The appellant filed a defence and denied liability and pleaded contributory negligence against the deceased. After full hearing where the respondent called three witnesses and the appellant one, the trial court found the appellant 100 per cent liable and awarded the respondents and the other two plaintiffs Kshs 50,000.00 for pain and suffering, Kshs 100,000.00 for loss of expectation of life, Kshs 500,000.00 for loss of dependency and Kshs 22,860.00 for special damages. 3.Being aggrieved by the judgment, the appellant filed this appeal vide memorandum of appeal dated 9th November 2023 citing the following grounds;1.The learned Magistrate erred in fact and law in finding that the applicant was entitled to liability apportionment of 80 per cent.2.The learned Magistrate erred in fact and in law in finding that the respondent was entitled to liability apportionment that was too high in view of the evidence tendered. The same is not justified.3.The learned Magistrate erred in fact and in law in failing to consider the appellant’s evidence and submissions.4.The learned Magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature. 4.I do not understand why the appellant chose to leave out the other two plaintiffs out of this appeal. It is also not clear to me where the appellant got the position on liability he has claimed in this appeal since my reading of trial court’s judgment shows that liability was 100 per cent against the appellant and his co-defendant. Perhaps the proceedings suffered lack of keen drafting and undivided attention or they fell victim to some copy and paste because even the first ground does not make sense to me. 5.The appeal was ordered to be disposed of by way of written submissions. I have considered the submissions of the appellant dated 1st July 2025 and those of the respondent dated 24th November 2025. I have noted that the appellant has asked the court to reassess damages without making any proposals or stating the errors the trial court made. In effect the appellant has not made any meaningful submissions on quantum. 6.The above leads me to the conclusion that the appellant has not prosecuted his appeal on quantum. A party is expected to advance its arguments beyond the pleadings. It is not enough for the appellant to ask the court to reassess damages without pointing out what was wrong with the trial court’s assessment. The appeal belongs to the appellant and it was his duty to prosecute it. Throwing pleadings at the court and sit back to wait for a decision on them is a dereliction of duty and the court cannot come to the aid of such a party. 7.I have also noted from the respondent’s submissions that she has urged the court to consider that the awards were too low and goes on to propose Kshs 100,000.00 for pain and suffering, Kshs 300,000.00 for loss of expectation of life and adoption of Kshs 13,572.90 in calculating damages for loss of dependency. The respondent did not file a cross appeal on the issue of damages. The first time the respondent is seen complaining of the quantum of damages is in her submissions. 8.It is my position that an appeal cannot be commenced through submissions. A party who has not mounted pleadings on an issue he desires the court to decide on cannot ride on the pleadings of the other to articulate its issues. Issues must flow from the party’s pleadings and where none exists, they cannot be inferred from the opposing party’s pleadings. Honourable Justice R.E. Aburili emphasized this position in John Kibicho Thirima v Emmanuel Parsmei Mkoitiko [2016] KEHC 238 (KLR) when she held that;“From the above decisions, it is clear that unless an issue was pleaded or if not pleaded, became an issue and which issue was left to the court to decide, one party cannot raise a totally new issue and expect the court to consider that issue and decide it in its favour to the exclusion of evidence or submission by the adverse party. To do so would be tantamount to excluding the adverse party from being heard." 9.Based on the above, this court will not venture into the issue of quantum of damages. Consequently, it is my opinion that the only issue for determination herein is, who between the appellant’s driver and the deceased was to blame and to what extent. 10.Having said the above, I will engage in analyzing the evidence of the parties as much as they concern the issue of liability. This being a first appeal, I will re-evaluate the evidence afresh and come to my own independent conclusion but keep in mind that the trial court unlike me, had the advantage of taking the evidence first hand and observed the demeanour of the witnesses and give due allowance for that. 11.From the proceedings, none of the four witness was an eye witness to the accident. PC Antony Ekiru who was a police officer based in Kangundo police station and who testified on behalf of the respondent produced a police abstract dated 23-09-2021 and confirmed that he was not the investigating officer. He added that the accident was a case of hit and run and that the 2nd motor vehicle (the appellant’s) overrun the body of the deceased and was not to blame and that he could not tell if there were witnesses in the matter. 12.Mary Muasya who was the 2nd plaintiff and the deceased’s aunt told the court that she came to the scene thirty minutes after being informed of the accident and found motor vehicle registration number KCN 335Z at the scene. The deceased’s father who was the 3rd plaintiff testified that he was also called after the accident and found the body and the vehicle had been taken by the police. 13.The appellant’s sole witness was one PC Kimathi Jadiel also based at Kangundo police station performing traffic duties. He stated that the accident was a hit and run and alleged that the deceased was hit by an unknown vehicle which was coming from Kangundo towards Nairobi general direction and died on the spot and after the accident, motor vehicle registration number KCN 355Z ran over the body. The proceedings show that he produced a police abstract but the only abstract I have seen in the court file is the filed by the respondent. He confirmed that he was not the investigating officer. 14.As observed earlier, it is clear that the none of the witness could give direct evidence on how the accident occurred. None of those who visited the scene made any attempt to describe the circumstances or the situation of the scene. There was no sketch map produced neither was there anything that could help the court reconstruct the accident. The police abstract produced by the respondent did not blame any of the vehicles as it indicated that the case was pending under investigations. 15.In finding on liability, the trial court held that the two police officers did not assist much in the case and I do agree with him. If the accident was ever investigated, why didn’t the police require the owner of the motor vehicle to produce its driver? He should at least have been the one telling the court of a hit and run vehicle and how he ran over the body of the deceased. Since the police officers who testified in the matter did not have first-hand information on how the accident occurred, their testimonies remain hearsay. In the circumstances I hold the view like the trial court did that, the driver of the motor vehicle is the one who hit the deceased. Even if I took it that there was another vehicle which hit the deceased, the fatal blows came from the appellant’s vehicle hence he was liable for the accident. 16.I have noted from paragraph five appearing on page two of the judgment of the court that, it found the driver of KCN 335Z 100 per cent liable. As observed earlier in this judgment, I am at a loss where the appellant got the 80:20 liability ratio from. Be that as it may, I find the judgment of the trial court on liability to have been based on assumption which was not supported by facts or evidence. The court stated that the fact that 2nd motor vehicle ran over the deceased’s body, implied that, it must have been following the first motor vehicle closely and on higher speed and for that reason, he held the driver 100 per cent liable. In my view this was a wrong assumption. First there was no proof that there was a second vehicle and secondly, none of the witnesses spoke of the two vehicles following each other closely. 17.It is clear that the accident occurred and deceased died out of the injuries sustained in it. What is in contention is who was to blame for the accident and based on what was placed on record, it would be difficult for this court to assign blame on either of the two persons involved. The two persons who could tell the court how the accident occurred were not available as one died while the other chose to keep away from the court proceedings. From the narrations of the parties, although no description of the scene or sketch map, there is an indication that the accident occurred on the road. 18.In the circumstances, this court is inclined to find that the appropriate thing is for the deceased and driver of the motor vehicle to equally share the blame. Where an accident is proved to have occurred especially a collision and the court is starved of the circumstances surrounding the accident, it is always safe and justifiable for the court to apportion liability equally. It is obvious that one of them or both were to blame as accidents don’t just happen. Someone must have been bereft of care and look-out. I would go by the holding of Justice Patrick J.O. Otieno in Atira v Nyamungaba [2024] KEHC 1528 (KLR) where he stated that;“In coming to a determination, the Court must bear in mind that the standard of proof in Civil cases is on a balance of preponderance. When the Court cannot precisely assign the blame on causation, it is permissible that the Courts holds both equally to blame." 19.The conclusion of the above is that this appeal succeeds to the extent that the trial court’s finding on liability is hereby set aside and substituted for a finding that the appellant shall bear 50 per cent liability. The quantum of damages shall remain as awarded by the trial court. The appellant shall have half costs of this appeal. DATED SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.