https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8697

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CIVIL APPEAL NO. E245 OF 2024 SAMSON OMPERE & EMMELY SANYA ALUMA (Suing as legal administrators & personal representatives of the estate of SULEIMAN MANASE ALUMA – DECEASED) …………………...……….. APPELLANT - VERSUS - NANCY GRACE OUKO ………………………………………. RESPONDENT (Being an Appeal from the judgment of Hon. F.M. Rashid (PM) at Kisumu made on 24/9/2024 in Ksm CMCC No. 250 of 2020) 1. The appellants filed suit against the respondent vide a plaint dated 18/8/2020 J U D G M E N T wherein they sought general and special damages as well as costs of the suit with interest for fatal injuries sustained by the deceased on the 28/9/2018. 2. The respondent entered appearance and filed an amended statement of defence dated 30/9/2020 in which she denied the appellants’ claim and pleaded contributory negligence on their part. 3. The matter proceeded to trial and by a judgment delivered on 24/9/2024, the trial court decreed: - Page 1 of 13 a) Liability Apportioned at 70:30 in favour of the plaintiff b) Loss of dependency – Kshs. 827,299/- c) Loss of expectation of life – Kshs. 100,000/- d) Special damages – Kshs. 109,698/- e) Pain & suffering – Kshs. 100,000/- f) Total – Kshs. 1,136,997/- g) Less 30% - Kshs. 341,099/- h) Amount payable – Kshs. 795,898/- 4. Being dissatisfied with the said judgment/decree, the appellants lodged this appeal vide the Memorandum of Appeal dated 15/11/2024 raising six (6) grounds of appeal as follows: - a) That the learned trial magistrate erred in law and in fact in finding the plaintiffs/appellants 30% liable for the accident whereas the appellant did not contribute to the accident at all. b) That the learned trial magistrate erred in law and in fact by failing to exonerate the appellant from any negligence in view of the evidenced actions of the respondent. Page 2 of 13 c) That the learned trial magistrate misdirected herself and based her findings on liability as against the appellants on wrong considerations. d) That the learned trial magistrate failed to consider the appellant’s evidence and submissions on liability thereby arriving at a wrong decision. e) That the learned trial magistrate erred in law and in fact in predicating her judgment on liability upon theories and hypothesis that were not supported by any evidence. f) That the learned trial magistrate misdirected herself in fact and in law in making the finding of 30% contributory negligence against the said appellants contrary to evidence adduced by them. 5. The appeal was disposed of by way of written submissions which I have duly considered. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. 6. Before the trial court, Emmely Sanya Aluma testified as Pw1. She adopted her statement dated 19/8/2020 as her evidence in chief and testified that the Page 3 of 13 deceased was her husband and that they had 5 children. That she was informed of the deceased’s accident on the 25/9/2018 and that the deceased died 3 days later on the 28/9/2018. That the deceased was a motorbike rider and would earn Kshs. 1,000/- per day as his main clients were market vendors. In cross-examination, she told the court that she did not witness the accident but was informed about it by one Joel. 7. Pw2, Moses Onyango Okoth adopted his statement dated 5/10/2022 as his evidence in chief. He testified that he was a hawker within Siaya County. That on the 29/9/2018, he was standing under a tree along the Bondo – Usenge road, on the left side of the road next to Kobil Petrol Station, waiting to board a vehicle to Madiany market. 8. That he saw a motorcyclist on the road carrying a pillion passenger riding at low speed on the left lane facing Kisumu indicating his intention to turn on the right but suddenly a motor vehicle registration number KCP 651B emerged from behind the bike and without slowing down, hit the motorbike rider throwing both the rider and his passenger off the road to a thicket besides the road. 9. That the rider had a helmet and yellow reflector jacket. That the front windows of the motor vehicle were down and he was able to see the driver Page 4 of 13 on his phone on his right ears. That the phone was black. That the driver of the vehicle failed to stop but that the deceased and his passengers were rescued by good Samaritans and taken to hospital. That as he was familiar with the rider, he called his wife and informed her of the accident. 10. In cross-examination, he reiterated his testimony and stated that the motorbike was damaged from behind. That it was early in the morning and there was a bit of light. That the vehicle that hit the deceased was of Probox make. 11. Pw3, No. 235864 Inspector Maloba testified that the accident occurred at 6.30am when motor vehicle KCR 661B, a Probox coming from Usenge to Bondo hit the motorbike which was joining a petrol station to its right as it was overtaking the bike. That the driver of the motor vehicle was to blame for the accident as he was not attentive on the road and overtook without care to other road users. 12. In cross-examination, Inspector Maloba testified that Pw2 was not a witness in the police file and that he was not the investigating officer but took over the file after the transfer of the investigating officer one Corporal Munyika. That he concluded the investigations based on the witness statements and sketch plan that showed the point of impact. Page 5 of 13 13. On her part, the respondent called Elisha Onyango Odoyo as Dw1. He adopted the statement dated 10/11/2020 as his evidence in chief. It was his testimony that he was the driver of the vehicle on the material day, That the deceased was to blame for the accident as he was almost overtaking him when the rider abruptly turned and hit the left side of his vehicle. That he tried to swerve to avoid the accident to no avail. That the investigating officer blamed the rider for the accident. 14. In cross-examination, he told the court that he was approaching the motorcycle from behind and that there was no vehicle between him and the motorbike. That he did not have any evidence of his claim that the investigating officer had blamed the rider of the bike for the accident. That he did not have any evidence to show that his vehicle was hit on the right. In re-examination, he re-stated that both he and the rider of the bike caused the accident. 15. From the foregoing, it is evident that this appeal relates to liability only. section 107 (1) of the Evidence Act provides that: “Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” Page 6 of 13 16. This refers to the legal burden of proof. There is, however, an evidential burden of proof which is captured in sections 109 and 112 of the Evidence Act as follows: “109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person. 112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.” 17. The two provisions were dealt with in the decision of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which this Court held as follows: - “As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Page 7 of 13 court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 18. It follows that, the general rule is that the initial burden of proof lies on the plaintiff, and the appellant in this appeal, but the same may shift to the respondent depending on the circumstances of the case. In the persuasive case of Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that: - “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 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of … that proof of that fact shall lie on any particular person… The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.” Page 8 of 13 19. However, as held in Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR: “The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows: ‘To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or Page 9 of 13 more as having jointly caused the accident. I doubt whether any test can be applied generally…’” 20. The issue herein is however whether the appellants ought to have been found 30% liable or the respondent 100% liable. In this case, this Court is being called upon to interfere with the trial court’s finding on liability. In Khambi and Another v Mahithi and Another [1968] EA 70, it was held that: “It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.” 21. In this case, it was not disputed that the deceased was hit from behind. Pw2, who witnessed the accident and whose testimony was not controverted by the respondent testified that the deceased had indicated his intention to turn right, that the respondent’s driver was over speeding while on the phone. When Dw1 testified, he did not deny those assertions. Pw3 on his part testified that he concluded the investigation and concluded that the driver was to blame for causing the accident. Page 10 of 13 22. Juxtaposed against this was the testimony of the Dw1, in which he initially blamed the deceased for causing the accident but when re-examined stated that both he and the deceased were to be blamed for causing the accident. Dw1 could not estimate the distance between himself and the motorbike despite testifying that there was no vehicle between them. 23. In apportioning liability to the deceased, the trial magistrate based the same on the fact that the testimony of Pw2 who testified to have witnessed the accident was unascertainable as he was not listed as a witness in the police abstract. Further, that the covering report, sketch maps and occurrence book were not produced in support of the appellants’ case. 24. With due respect, it was not necessary that Pw2 should have been a witness listed on the Police Abstract for his testimony to hold. He testified on oath and greatly cross-examined but he remained firm. His testimony remained unshaken in all material particulars. The trial court did not state that it did not believe him and if so, why. It was upon the trial court to do so. 25. This Court notes that, the purpose of a police abstract is to support the fact that an accident was reported. The making of a report at a Police Station and OB, and therefore issuance of a police abstract, is not necessarily proof of occurrence of an accident. See Techard Steam & Power Limited v Mutio Page 11 of 13 Muli & Mutua Ngao [2019] eKLR. A plaintiff must prove the occurrence of the accident and the negligence on the part of a defendant independently of what the police abstract may have indicated. This is so because, proof of negligence and the police abstract are not dependent on each other. 26. Further to the above, the respondent did not object to the testimony of Pw2 during the trial. Neither was she able to displace his testimony under intense cross-examination. Cross-examination is the basis of testing the veracity of a witness’ testimony. 27. In my view, it was a grave error for the trial court to hold that since Pw2 was not listed as a witness in the police abstract, it should be the basis for apportioning liability. 28. The totality of the evidence on record point towards the respondent’s driver being fully liable for causing the accident. It is also not lost to this Court that the driver knocked the rider from behind. He had a higher duty of care than the rider who was in front of him. In the circumstances, it is this Court’s view that the trial court manifestly erred in apportioning liability. 29. Accordingly, I set aside the apportionment of liability in the ratio 70:30 by the trial court and replace it with one apportioning liability fully as against the respondent. Page 12 of 13 30. The upshot of the above is that the appeal is meritorious and the same is allowed. That part of the trial court’s judgment apportioning liability at 70:30 is set aside and replaced with 100% liability as against the respondent. The appellants will have the costs of the appeal. It is so decreed. DATED and DELIVERED at Kisumu this 19th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 13 of 13