https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11535

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT KISUMU*** ***CIVIL APPEAL NO. E004 OF 2025*** ***SIMBA PLATINUM…………………………….…………1ST APPELANT*** ***SIMBA COACH LIMITED………………………..……2ND APPELLANT*** ***-VERSUS-*** ***EVANS ONDU ONGONGA.………………………….…..RESPONDENT*** ***(Being an Appeal from the Judgment of Hon. Ogal (PM) delivered on the 20th December, 2024 in Winam PMCC No. 195 of 2019)*** ***JUDGMENT*** # INTRODUCTION 1. This is an Appeal from Judgment of Hon. Ogal delivered on 20th December 2024 in Winam PMCC No.195 of 2019. In the said Judgment, the trial court found the Appellants herein 100% liable for the injuries suffered by the Respondents. 2. The suit related to a Road Traffic Accident that occurred on the 20th December, 2019 along Kisumu-Ahero road at Koyuga area, involving motor cycle Reg No. KMEP 451G in which the Respondent was a pillion passenger and motor vehicle Reg No KBN 982N owned by the Appellant herein. 3. Dissatisfied with the Trial Magistrate’s Judgment, the Appellant has filed the instant Appeal seeking to set aside the orders of the court on both liability and quantum, arguing that the Respondent had not discharged the burden of proof to establish the culpability on the part of the Appellant. 4. According to the Appellant, there was no collision between the motor vehicle owned by the Appellant and the motor cycle in which the Respondent was a pillion passenger and therefore no liability could be attributed to the Appellant on the principle that there is no liability without fault. **Trial Court Evidence** 1. The Respondent told court that he was a pillion passage in motor cycle Reg. No. KMEP 451G which was being cycled by Daudi Okoth Obutho (Deceased). That they were heading towards Ahero while the Appellant’s Motor vehicle Reg. No KBN 982N was being driven on the opposite direction, towards Kisumu. That when they got to Koyuga area, the driver of the motor vehicle was overtaking a third party motor vehicle. 2. That he lost control and went to the lane of the cyclist, and before the collision, the Respondent herein jumped off the motor cycle to rescue himself. There was a collision and the cyclist died on the spot. The Respondent sustained injuries and was treated. 3. The Appellant had called two witnesses at the trial, being the police officer and the driver of the motor vehicle. The police officer produced the police abstract in court. The witness blamed the bus driver for the accident. 4. DW2 was the driver of the Appellant. He confirmed the occurrence of the accident. He confirmed that the bus collided with the motor cycle but claims that by the time of the collision, the Respondent herein had already jumped off the motor cycle and therefore, he was not to blame for his injuries. 1. After the hearing, the trial Magistrate entered judgement for the Respondent as against the Appellant. Aggrieved by that finding, the Appellant filed this appeal and sought to set aside the judgment of the trial court on both liability and Quantum. **Submissions by the Appellant** 1. According to the Appellant, the trial court had erred in law and fact by finding the Appellant 100% liable for the accident. The Appellant submitted that there was no collision between the motor vehicle and the motor cycle and therefore liability cannot attach. That lack of collision negates negligence because negligence requires a duty of care. 2. That the Respondent admitted that the rider lost control and that is when the Respondent jumped off and this was confirmed by the police officer and the police abstract that was produced in court. Counsel submitted that there was no causation link and therefore liability should not have attached to the Appellant or to the very least, apportion liability between the Respondent and he cyclist. **Submissions by the Respondent** 1. The Respondent submitted that they had proved their case as is required in law. They drew the attention of the court to the provisions of Section 107 and 109 of the evidence Act, stating that the Respondent had discharged its burden of proof and it was upon the Appellant to discharge the evidential burden. 2. According to the Respondent, the Appellant’s motor vehicle veered as it overtook and went to the lane of the cyclist and collided with it, causing fatal injuries to the cyclist. The Respondent herein, jumped off the motor cycle to avoid the accident. 3. The Respodents submitted that the trial court did not err in finding the Appellant 100% liable for the accident because had the Appellant’s driver not attempted to overtake, the accident would not have occurred. That had the Appellant’s driver not encroached on the cyclist’s lane while overtaking, the accident would not have taken place. 4. The Respondent submitted on the speed of the motor vehicle Registration number KBN 982N, which the Appellant had stated was 30KPH and stated that the speed of 30KPH is too minimal to cause a fatal impact. Counsel for the Respondent urged the court to find that the Appellant was driving at a high speed and that is why he was not able to control the motor vehicle and prevent the accident. **Analysis and Determination** 1. This being the first appellate court, its duty is as summarized by the Court of Appeal in**Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123***:* which is "… to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’ 1. Having considered the Record of Appeal and the rival submissions, I frame the following single issue: - 2. ***Whether the trial court erred in apportioning liability at 100% against the Appellant.*** 3. As correctly submitted by the Respondents it is settled law that he who alleges must prove. Section 107 of the Evidence Act states as much. Section 108 of the Evidence Act, also provides that the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side and further section 109 of the Act declares that, 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 that fact shall lie on any particular person. 4. Further to the above sections of the law, in the Court of Appeal decision in ***Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2004] eKLR*)** the court held that it was the duty of the Appellant to present evidence before the trial court to prove her case. 5. The submission by the Appellant herein is that there was no contact between the motor cycle Reg No. KMEP 451G in which the Claimant was a pillion passenger and motor vehicle Reg No KBN 982N owned by the Appellant. However, the Appellant’s own witness DW2 confirmed that there was a collision, although this happened after the Respondent herein had already jumped off the motor cycle to rescue himself. 6. The testimony of the Respondent herein and the police officer was that the Appellant’s driver was to blame for veering to the lane of the motor cycle and causing the bus to collide with the motor cycle. 7. Although evidence on record is that by the time of the collision the Respondent had jumped off to rescue himself, and in the process suffered some injuries, I do agree with the submission by the Respondent that the cause of the injuries was the manner in which the Appellant’s driver had controlled the motor vehicle Registration number KBN 982N. Had the vehicle not veered to the lane of the motor cycle, the Respondent would not have suffered the injuries that are subject of this Appeal. 8. The Appellant has argued that there is no liability without fault. This is trite law, that liability does not attach without fault and there must be a causal link between a person’s negligence and the injuries. Indeed, in the case of ***Statpack Industries vs. James Mbithi Munyao - Nbi HCCA No. 152 of 2003***, the court held that there must be a causal link between a person’s negligence and the injuries occasioned. As stated herein above, the negligent manner in which the Appellant’s driver controlled the vehicle was the cause of the accident and the cause of the Respondent herein jumping off to safety. Had the Respondent not jumped off to mitigate the losses, he would have sustained far more serious injuries, just as the cyclist. 9. The Appellant has urged the court to find that the Respondent and the cyclist were to blame for the accident. For the court to interfere with the finding of the lower court on liability, the Appellant needed to adduce credible evidence which can stand in the absence of rebuttal evidence by the Respondent. There was no such evidence adduced in court. 10. My finding is that the Respondent’s evidence alongside that of the police officer indicated that the Appellant was to blame for the accident and the Respondents had therefore discharged the legal burden on liability. It was now upon the Appellant to discharge the evidential burden if it desired the court to find in its favor. The Appellant did not avail any evidence to indicate that the rider was to blame for the accident and my finding is that the evidence adduced by the Appellant did not meet the threshold of rebutting the evidence of the Respondents. ***In Machakos HCCA 64 of 2017, Susan Kanini Mwangani vs Patrick Mbithi (2019) eKLR*,** the court held that: - *“it is not sufficient for the defendant to deny the claim, shift blame or rely on their submissions to sustain their defense and that the defense has a positive duty to prove their allegations contained in the defense.* 11. In the instant Appeal the Respondent and the police officer placed the blame on the Appellant and convinced the court on how the accident occurred. It was upon the Appellant to negate this evidence which the trial magistrate found had not been done. 12. Finally, the Court of Appeal in ***Peters v Sunday Post Ltd [1958] EA 424*** held that: - *“an appellate court will not interfere with findings of fact by the trial court unless they are based on no evidence, or the court misapprehended the evidence, or the findings are plainly wrong”.* I find no reason for interfering with the finding of the trial court in both liability and quantum. 13. I have considered the evidence on record and the submissions by the parties. There is no challenge on the quantum of damages awarded by the trial court. 1. **The upshot of the matter is that the Appeal lacks merit and the same is dismissed with costs to the Respondent.** 2. **Orders Accordingly.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **24th** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** Leadys– Court Assistant No appearancefor the Appellant. No appearancefor the Respondent.