https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7573

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E320 OF 2024** **SHAFA GARAD ABDULLAHI …………………………. APPELLANT** ***VERSUS*** **ABDIRASHID MOHAMED ABDI ………………....1ST RESPONDENT** **MEDINA BUS SERVICES LIMITED ……………...2ND RESPONDENT** **(***Being an appeal from the judgment/decree of Hon. B. Shikuku (SPM) in Kithimani PMCC No. 152 of 2019 delivered on 13th November 2024)* **JUDGMENT** 1. The Appellant herein was the 2nd Defendant in a personal injuries claim brought against him and the owner of a bus registration number KCM 912H Scania, in which the Plaintiff, now 1st Respondent, was travelling as a lawful fare paying passenger, along the Matuu – Thika Road. 2. The collision was not disputed. However, the manner of the occurrence of the accident was contested. According to the 1st Respondent, the accident occurred when the vehicle (bus) he was in rammed into the Appellant’s truck which was parked on the left side of the road, which was the same lane in which they were travelling. He contended that the driver of their vehicle was speeding. The 1st Respondent alleged that the Appellant’s motor vehicle had left no markings on the road to warn other road users that there was a stationary motor vehicle on the road. He therefore blamed both vehicles for the accident and for the injuries he had sustained. 3. For the Appellant, evidence was led, in the court below, to the effect that his motor vehicle was completely off the road and that the driver of the 2nd Respondent’s motor vehicle had as a matter of fact been charged for causing the accident, had pleaded guilty and been sentenced. 4. Nevertheless, the learned magistrate after considering the evidence and rival submissions of the parties found both vehicles equally to blame and found liability against them in the ration 50:50%. He then awarded the 1st Respondent general damages of Kshs.500,000/-; special damages of Kshs.98,000/-; costs of the suit and interest. 5. Being aggrieved the Appellant (2nd defendant in the court below), preferred this appeal and has urged this court to set aside the judgment against it in entirety. The grounds of appeal are: “**a**) ***The learned magistrate erred in fact and in law by disregarding the evidence put before him thus making a decision that cannot be supported by the evidence and the law.*** ***b) The learned magistrate erred in fact and in law by treating the Appellant’s evidence superficially and in failing to evaluate and make a determination to the effect that on a preponderance of evidence the 2nd Respondent was 100% liable for the accident.*** ***c) The learned magistrate erred in fact and in law by failing to make any analysis whatsoever of the evidence on liability and thus resulting in a whimsical and arbitrary apportionment of liability.*** ***d) The learned magistrate erred in fact and in law by awarding damages excessively.*** ***e) The learned magistrate erred in law and in fact by failing to give weight to, consider and fathom the Appellant’s written submissions and authorities before her.”*** 1. The appeal was canvassed by way of written submissions. The Appellant was represented by the firm of Macharia Burugu & Co, Advocates while the 1st Respondent was represented by Fred Mwihia & Co, Advocates. The 2nd Respondent did not participate in these proceedings although it had been duly notified. **Analysis and determination** 1. From the grounds in the memorandum of appeal and submissions, the issue that arises for determination is whether the learned magistrate erred in apportioning contributory negligence to the Appellant. 2. An appeal is in the nature of a retrial and hence this court is required to subject the evidence in the court below to a fresh scrutiny so as to arrive at its own independent conclusion albeit bearing in mind that it did not see or hear the witnesses – see the case of **Selle & Another vs. Associated Motor Boat Company Ltd. & Others [1968] EA 123**. I have also considered the rival submissions, the cases cited and the law. 3. From the onset, it is evident that the learned magistrate did not give any reasons for apportioning liability equally between the Appellant and the 2nd Respondent. His exact words were as follows: “**Determination** ***In summing up, upon careful perusal and consideration of the pleadings and submissions filed by the Plaintiff, nature of injuries he sustained and the case authority of comparable injuries supplied to court, evidence tendered on the record of court and circumstances of the case, the rate of inflation and the fact that no amount of money can adequately compensate the plaintiff for the injuries sustained, I proceed to enter judgment in favour of the plaintiff against the defendant in the following terms:*** ***Liability*** ***Liability is apportioned equally as between the 1st and 2nd Defendant……”*** 1. The learned magistrate failed to analyse the evidence and for that reason, he fell into error as there was evidence that absolved the Appellant’s motor vehicle from blame. The 1st Respondent having been a fare–paying passenger he could not be blamed for the accident at all. The driver of the Appellant’s motor vehicle testified in the court below on 7th August 2024. His evidence, which was not challenged at all, was that he had parked the vehicle off the road on the left side with the parking lights on. He also stated that he had just finished placing the life saver at the front side of the vehicle when the 2nd Respondent’s vehicle rammed the Appellant’s vehicle at the rear. This evidence was corroborated by the two witnesses called by the Appellant; one an investigator who confirmed the bus was off the main road and the other a police officer who likewise stated that the Appellant’s vehicle was completely out of the road. The 2nd Respondent did not adduce any evidence in the court below. The court was however told that its driver was charged with causing death by dangerous driving in connection to the accident; that he pleaded not guilty; was tried but subsequently changed plea to guilty; was convicted and then fined. These proceedings of the traffic case were produced as evidence in the court below. They were not challenged and/or contested. 2. It is my finding that the evidence adduced by the Appellant, at the hearing, which was not challenged either by the 1st or 2nd Respondents, fully absolved it from any liability. The Appellant’s motor vehicle was completely out of the road and the driver was in the process of placing the life savers when his truck was rammed at the rear by the 2nd Respondent’s motor vehicle which, according even to the 1st Respondent, was being driven at a high speed. The culpability of the 2nd Respondent’s driver is confirmed by the fact that he pleaded guilty to traffic charges arising from the accident. The driver having pleaded guilty and been convicted, meaning he admitted to being responsible for the collision, and there being no evidence of an appeal having been preferred, leaves no doubt in the mind of this court that the 2nd Respondent’s driver was driving at an excessive speed. This court is persuaded that but for his action the accident would not have occurred. This is not a case where the issue of who was to blame is not possible to determine and had the learned magistrate analyzed the evidence before him as I have, he would have come to the conclusion that the Appellant’s driver was not to blame for the accident. There is a principle in law that there can be no liability without fault and for that reason, I am persuaded that this appeal is merited. 3. The upshot is that the appeal is allowed. The judgment of the court below is in so far as it relates to the Appellant, set aside. That leaves the 2nd Respondent to shoulder liability for the accident at 100% and as the award for damages was in my view reasonable, to bear that as well. 4. Costs follow the event which means that as the Appellant has succeeded, the costs of the appeal would be borne by both Respondents. The 1st Respondent was however at no fault at all and shall be exempted from the costs of the appeal. The 2nd Respondent shall bear the costs for both the Appellant and the 1st Respondent. Orders accordingly. **Judgment signed, dated and delivered virtually via Microsoft teams on this 28th day of May, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Kyalo for Respondent Mr. Kagoli for Appellant Mary- Court Assistant/Interpreter