Mwangi v Muriithi (Civil Appeal E094 of 2024) [2026] KEHC 10084 (KLR) (9 July 2026) (Judgment)

Mwangi v Muriithi (Civil Appeal E094 of 2024) [2026] KEHC 10084 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10084 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E094 of 2024 EM Muriithi, J July 9, 2026 Between Samuel Mugira Mwangi Appellant and Ian Njine Muriithi Respondent (Being an Appeal from the Judgment of Honorable S. K Manyura (R.M) delivered on 18/7/2024 at Kerugoya Small Claims Court Case No. E045 of 2024) Judgment 1.By an undated Statement of Claim filed on 28/5/2024, the Appellant sued the Respondent, seeking judgment in the sum of Ksh. 608,000, compensation to be assessed by the court and costs of the claim. He pleaded that on or about 24/12/2023, at Murumbaru area along Embu-Mwea road, his motor vehicle registration number KAK 444 M was being lawfully and carefully driven, when the Respondent’s authorized driver, agent, servant and/or employee so negligently, carelessly and/or recklessly drove motor vehicle registration number KDD 089 T that it hit his motor vehicle, thereby causing extensive damage. 2.The Respondent denied the claim vide his response dated 10/7/2024 and prayed for its dismissal. 3.Upon full hearing, the trial court apportioned liability at 50% and awarded special damages of Ksh. 328,800 together with costs and interest. The appeal 4.On appeal, the Appellant vide his memorandum of appeal on 16/8/2024 set out 3 grounds as follows:1.The Learned Trial Magistrate erred in law and fact in apportioning 50:50% on liability against the appellant without any basis and failing to properly take into account the evidence tendered in support of the Appellant's claim therefore arriving at a wrong conclusion.2.The learned Trial Magistrate erred in law and fact by finding that the appellant contributed to the occasion of the accident by failing to conduct a proper analysis of the facts, documentary evidence, written submissions and the binding authorities made on behalf of the appellant thus leading to a miscarriage of justice.3.The learned Trial Magistrate erred in law and fact by applying wrong and inapplicable principles of law which did not form part of any basis to warrant her determination on liability. Duty of the Court 5.This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). Oral Evidence 6.CW1 Bernard Thuku, produced the report dated 23/12/2023 and the photo of the motor vehicle as exhibits. He testified that, “I am a mechanical engineer and specifically a motor vehicle assessor. I was given instructions by Mr. Samuel Mugane to assess his car where I went to Wanguru police station. Doing assessment vehicle had extensive internal damages as per the report. In my opinion I declared the motor vehicle write off because cost of repair is above commercial cost of vehicle. The vehicle has a bent chasis and once motor vehicle has bent chasis no repairer can repair motor vehicle to pre-accident conditions. I came up with the report based on second hand cost of spares. I have been an assessor for 35 years.” 7.On cross examination, he stated that, “I am mechanical engineer from JKUAT. I graduated in 1993.” Submissions 8.The Appellant faults the trial court for apportioning liability at 50% against the weight of the evidence that the Respondent was wholly liable, and cites Miller v Minister of Pensions [1947] 2 ALL. ER 372, Mbaka Nguru & Anor. v James George Rakwar [1998] eKLR, Benson 1SI Dulo v Joseph Waire Njoroge [2022] eKLR, Trust Bank Ltd v Paramount Bank Limited & 2 Others (2009) eKLR, Peter Ngigi & Another (suing as legal representative of the Estate of Jean Wambui Ngigi) v Thomas Ondiki Oduor & Another 2019 eKLR, Donoghue v Stevenson [1932] A.C. 562 Nandwa v Kenya Kazi Ltd [1988] KLR 488, Regina Wangechi v Eldoret Express Co. Ltd [2008] eKLR and William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLE 526. 9.The Respondent lauds the trial court for apportioning liability equally since there was no independent evidence to shift blame one way or the other, and cites Peter Gichuki King'ara v IEBC &2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA) of 13.02.2014, Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024), Springboard Capital Limited v Njenga & another (CivilAppeal14 of 2024) [2024] KEHC 7013 (KLR) (14 June 2024) (Judgment), Crown Petroleum Kenya Ltd & 3 others vs Anderson Sumata Saoli and 7 others (2019) eKLR, Wangongu v Kithinji & 2 others (Civil Appeal 293 of 2023) [2024] KEHC 6272 (KLR), United Millers Limited v TOM Maina Sarara [2020] KEHC 1105 (KLR), Rose Nafula Wanyama v Nusra Nasambu Chibanga & Another [2020] eKLR, Changa v Satari (Civil Appeal E018 of 2022)[2023] KEHC 19129 (KLR) (27 June 2023) (Judgment) to fortify his position. Analysis and determination 10.From the grounds of appeal as framed, the singular issue for determination is whether the apportionment of liability was proper. 11.The established principle is that the Plaintiff must present credible evidence that can stand on its own, even without rebuttal from the defence. In Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR), the Court of Appeal held that:“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3 Others (supra) is totally different from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintiff to judgement, irrespective of the quality and credibility of the evidence that the plaintiff has presented. In our view the latter proposition has no sound legal basis.” 12.Similarly in Makanda v Osita (Civil Appeal E213 of 2023) [2025] KEHC 8510 (KLR) (Civ) (17 June 2025) (Judgment), the court (W.M Musyoka J), observed that:“The notion that a witness ought not testify because he has not filed a witness statement has little foundation in law, for as long as the sworn oral statement of the witness overrides his unsworn written statement, which statement is itself extracted from the same witness. Why not hear from the horse’s mouth directly, instead of relying on some written statement extracted from him.” 13.The burden of proof was always on the Appellant to prove his case on a balance of probabilities. The motor vehicle assessor was the only witness who testified for the Appellant’s case, and his testimony was solely confined on the damage to the motor vehicle. There was no evidence whatsoever on how the accident had occurred as the Appellant did not take the stand, and the court was left to speculate. The calling of CW1 could not substitute the Appellant’s own testimony, especially on matters uniquely within his personal knowledge. On his part, the Respondent did not lead any evidence and his response to the claim remained bare. 14.The Court finds that the Appellant’s failure to lead any evidence as to the causation of the accident justified the apportionment of liability equally between the parties. This court finds on the state of evidence before it that both the Appellant and the Respondent were equally at fault, and the trial court’s apportionment of liability at 50% cannot be faulted. Orders 15.Accordingly, for the reasons set out above, the Court finds the Appellant’s appeal is without merit and it is dismissed. 16.The appellant shall pay the costs of the appeal to the Respondent.Order accordingly. DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Mugane for the Appellant.Ms. Ouma for Mr. Lesaigor for the Respondent.