https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9428

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **KAJIADO LAW COURTS** **CIVIL APPEAL NO. 28 OF 2020** **ST. ANNES KISAJU ACADEMY………................................APPELLANT** **-VERSUS-** **LEONARD MAGONA SHIKUKU AND EMILY SIANTO PERTET** **(Suing as the legal administrators of the estate of the late TLS (deceased)……………...............................1st and 2nd RESPONDENTS** **ROBERT GITIRA………………………………….………………..3rd RESPONDENT** **APPLIED INTERIORS COMPANY LIMITED……………………4TH RESPONDENT** **(Being an appeal from the judgment delivered on 13th July, 2020 in Kajiado CMCC NO 111 of 2018- Kahuya, PM)** **JUDGMENT** 1. This appeal emanates from the judgment delivered on 13th July, 2020 in **Kajiado CMCC No. 111 of 2018**. The suit was commenced by way of a plaint filed on 27th March, 2018 by the plaintiffs in the lower court, namely, **Leonard Magona Shikuku** and **Emily Sianto Pertet** (hereafter the 1st and 2nd Respondent/Respondents), suing as administrators of the estate of **TLS**, their late son. It was averred that **TLS** who was 8 years old died in a road traffic accident on 10.09.2015 that involved him and motor vehicle **KBU 991N** (hereafter the accident motor vehicle), allegedly owned by **Robert Gitira** (the 1st defendant in the lower court, hereafter the 3rd Respondent), and driven and or controlled by his agent or servant, **Applied Interiors Company Limited** (the 2nd defendant in the lower court, hereafter the 4th Respondent). 2. Also sued as the 3rd defendant was **St**. **Annes Kisaju Academy,** (hereafter the Appellant), the school in which the deceased minor was enrolled before his death**.** The claim was for damages under the Law Reform Act and the Fatal Accidents Act in respect of fatal injuries sustained by **TLS** in the road traffic accident. It was averred that the minor was knocked down by the accident motor vehicle while crossing the road, after being dropped by the Appellant’s school bus and signaled by the school bus driver to proceed to cross the road. Negligence was pleaded against all the named defendants, as particularized in the plaint. 3. The Appellant filed a statement of defence denying the key averments in the plaint and liability. They also pleaded contributory negligence against the Respondents. Both the 3rd and 4th Respondents also filed their statements of defence dated 26th March, 2019 and 8th January 2019 respectively, contrary to assertions made before this court on 23.07.2025 and in submissions . 4. By their respective defences, the 3rd and 4th Respondents equally denied the key averments in the plaint, negligence and liability. The suit proceeded to full hearing, during which three witnesses, namely, the 2nd Respondent, **Moses Kupere Kupai** and **John Bosco Kitonyi** testified on behalf of the 1st and 2nd Respondents, as **PW1, PW2 and PW3,** respectively**.** For the Appellant, **Eric Maina Nderitu** (**DW1**), a director of the school, was called as a witness. 5. At the close of the hearing, the parties filed their respective submissions. In a judgment delivered on 13th July 2020 the trial court found the 3rd and 4th Respondents on one hand, and the Appellant on the other, liable in the ratio of 80:20, respectively, and proceeded to award damages to the 1st and 2nd Respondents in the total sum of Kes. 850,000/- with costs. Aggrieved with the outcome, the Appellant preferred this appeal on 2nd September 2020 by lodging the memorandum of appeal of even date, pursuant to leave granted in **Kajiado HC Misc. Civ. Appln. No. 54 of 2020.** 6. It is pertinent to mention here, by way of background, that by a ruling delivered on 5th February 2026 this court had struck out the appeal based on the objection raised in the 1st and 2nd Respondents’ submissions on the appeal, and not addressed by the Appellant in theirs, that the appeal had been filed out of time, and without leave of the court. Subsequently however, the Appellant successfully moved the court vide their motion dated 9th February 2026, demonstrating that leave had indeed been granted in the separate miscellaneous cause but the fact had not been impleaded, as required, on the face of the memorandum of appeal herein. Upon the Respondents conceding the motion, the court reinstated the appeal on 23.02.2026 and a fresh judgment date was reserved, submissions having earlier been filed. 7. The grounds of appeal primarily challenged the trial court’s findings on liability and quantum of damages as follows: - **1. THAT the Learned trial Magistrate erred in law and fact by finding that the 1st and 2nd Respondents had proved their case on a balance of probability when there was no such proof.** **2. THAT the Learned trial Magistrate erred in law and fact by relying on the hearsay evidence adduced by the Respondent's witnesses who were not present at the time of the accident and did not witness the occurrence of the accident.** **3. THAT the Learned trial Magistrate erred in law and fact by considering issues that were not raised during hearing, pleaded or submitted by the 1st & 2nd Respondents against the Appellant.** **4. THAT the Learned trial Magistrate erred in law and fact by absolving the 1st & 2nd Respondent from any form of contributory negligence and disregarding the undisputed oral agreement to drop off the Deceased besides the road.** **5. THAT the Learned trial Magistrate erred in law and fact by failing to take into consideration that the 4th Respondent did not enter appearance and/or file a Defence.** **6. THAT the Learned trial Magistrate erred in law and fact by failing to find the 3rd and 4th Respondents absolutely liable, as they did not call any evidence to counteract the allegations of negligence levied against them by the 1st and 2nd Respondents and the Appellant.** **7. THAT the Learned trial Magistrate erred in law and fact by apportioning liability on the Appellant against the 3rd and 4th Defendants in the ratio of 80:20, which apportionment was not supported by the facts, weight of the evidence and authorities before the court.** **8. THAT the Learned trial Magistrate erred in law and fact by awarding damages which were inordinately excessive against the Appellant in the circumstances.** **9. THAT the learned trial Magistrate erred in law and fact by failing to appreciate and evaluate the evidence tendered by the Appellant as well as the Appellant's electronically filed submissions and case law and thereby arrived at a wrong decision.** 1. The appeal was canvassed by way of written submissions. The Appellant apparently abandoned ground 8 of the appeal as its submissions dated 19th October, 2023 did not address the issue of quantum of damages, and were riveted on the grounds attacking the trial court’s findings on liability. The Appellant’s submissions addressed two related issues, namely, who was to blame for the accident and whether the doctrine of res ipsa loquitor applied to the case. Counsel for the Appellant relied on Section 107(1) of the Evidence Act which places the onus of proof on the person who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts. 2. Counsel cited the statement in **Susan Njoki (suing as the administrator of the Estate of Francis Mwaniki Theuri) v Joseph Kiiru & another [2017] eKLR**, from **Halsbury’s Laws of England, 4th Edition pg. 662 paragraph 476** to the effect that the burden of proof in an action for damages for negligence rests primarily on the plaintiff, who must demonstrate that he was owed a duty by the defendant; that there was some breach of that duty, and; that he had suffered an injury as a direct result of the breach. 3. Counsel referred to the particulars of negligence alleged against the Appellant’s school bus driver and teachers, including unsafe stopping of the bus, failure to assist the deceased child in crossing the road, outdated hooting signals, and lack of reflector jackets. And stated that evidence from **PW1** and **DW1** showed that the mother of the deceased minor had instructed the school that the minor be dropped at Afya stage to save costs, and that the child crossed the road on his own volition. He dismissed as hearsay and unreliable the testimony suggesting hooting as a signal used by the school bus driver to direct the minor to cross the road. 4. Referring on the other hand, to evidence by **PW2** that the 3rd and 4th Respondent’s vehicle was speeding, and on the wrong side, counsel stated that the assertion was not rebutted, and therefore the said Respondents were culpable. Here relying on Sections 47(1) and 49(1) of the Traffic Act and the NTSA Highway Code, which emphasize care towards children and pedestrians. 5. Counsel also cited **Muksa v Singh and others [1969] EA 442 to** assert that the doctrine of *res ipsa loquitur* was concerned with the onus of proof and was not a substitute for proof of negligence, and would apply in cases where the plaintiff could rely on the mere fact that something happened, as prima facie evidence of negligence on the defendant’s part. Counsel submitted that the doctrine of *res ipsa loquitur* was inapplicable in the present case, here relying on dicta in **Msuri Muhiddin v Nazzor Bin Self Elkassaby and Another [1960] EA 207**. 6. The Appellant’s counsel emphasized that the Appellant had consistently dropped the deceased minor at his mother’s preferred drop-off point for over two years, and could not have foreseen the child’s impromptu decision to cross unassisted. Hence, the real negligence lay with the speeding lorry of the 3rd and 4th Respondents. In conclusion, counsel dismissed the 1st and 2nd Respondent’s evidence as hearsay and unreliable, and complained that liability was wrongly apportioned against the Appellant. He therefore urged the court to allow the appeal with costs. 7. In opposing the appeal, the 1st and 2nd Respondents by their submissions dated 8th November, 2023 addressed the twin issues of liability and quantum. On the foremost issue, the said Respondents relied on **Bahari Parents Academy v LBZ (Minor suing through his father and next friend) BNZ [2020] eKLR**, where the High Court examined negligence and vicarious liability. And cited **Muwonge v Attorney General of Uganda [1967] EA 17**, as approved in **Patel v Yafesi & Others [1972] EA 28** and **Canadian Pacific Railway v Lockhart [1942] All ER 464.** 8. Counsel contended that evidence adduced showed that the Appellant’s agents stopped the bus on the road, obstructing traffic and allowed children to alight when it was not safe to do so, and, without assistance. Which actions amounted to negligence. Counsel invoked dicta in **Christine Kalama v Jane Wanja Njeru & another [2021] eKLR,** where the court adopted the test in **Caparo Industries PLC v Dickman [1990] 1 All ER 568 and Chun Pui v Lee Chuen Tal [1988] RTR 298** as to the ingredients of the tort of negligence. 9. With regard to damages, counsel cited **Kigaragari v Aya [1985] eKLR and** **Butt v Khan [1982-88] KAR 1,** for the statement that an appellate court could only interfere with the trial court’s decision if it was shown that the sum awarded was demonstrably wrong or that the award was based on wrong principle, or was so manifestly excessive or inadequate, that a wrong principle may be inferred. It was his position that the damages awarded by the trial court were not excessive. 10. In supporting the award herein, counsel cited awards made in **Anthony Konde Fondo & another v RMC (Representative of FC (Deceased)) [2020] eKLR** (Ksh. 900,000/- for the death of a 7‑year‑old child), and **Daniel Mwangi Kimemi & 2 others v JGM & SMM (Civil Appeal No. 18 of 2014)** (Kshs. 1,000,000/- was awarded for the loss of a 9‑year‑old child). Counsel pointing out that the award herein ought to be adjusted upwards on account of inflation. 11. In submissions dated 23rd July, 2025, the 4th Respondent addressed the question of liability between the parties sued in the lower court and the ultimate holding that the Appellant was 80% liable for the accident. Reiterating that the Appellant’s driver stopped the bus beside a busy highway and signaled the deceased child to cross the road while unaccompanied, as teachers remained inside the bus, counsel contended that no evidence was adduced regarding the speed or negligence of the 4th Respondent’s driver. 12. Thus, counsel asserted that the proximate cause of the accident was the Appellant’s negligence, in failing to drop the child at home and allowing him to cross a busy highway unaided. Adding that the standard of care to be exercised by school authorities in providing supervision and protection of minor students to whom they are responsible is that of a careful and prudent parent. As held by the Supreme Court of Canada in **Myers v Peel County Board Education (1981) 2 SCR 21,** and **B.(A) v D.(C) {2011} BCJ No 1087, 2011 BCSC 775**. 13. Underlining the burden of proof under Section 107 of the Evidence Act, counsel contended that the Appellant and other Respondents had, despite allegations of negligence against the 4th Respondent, failed to tender evidence in proof. Thus, the case against the said Respondent was liable for dismissal for want of proof. 14. Supporting the finding of 80% liability against the Appellant for inter alia failing to assist the deceased minor to cross the road, stopping the bus on a busy highway, and not dropping the child near his home, counsel asserted that the Appellant’s driver owed a higher duty of care to the minor. And the Appellant was vicariously liable for his actions. Thus, the apportionment of 80% liability against the Appellant was justified. In summation, the 4th Respondent submitted that the appeal was without merit and should be dismissed with costs. **Analysis and Determination** 1. The court has considered the record of appeal and submissions on this appeal. In **Selle v Associated Motor Boat Co. [1968] EA 123** the Court of Appeal for East Africa spelt out the duty of the first appellate court as follows: - **“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.** **An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must 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.** **In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”** 1. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See **Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278.** 2. At the close of pleadings, the suit in the lower court proceeded to full hearing during which **PW1** testified that her 8 year old son who was a student at the Appellant’s school was on the material date knocked down by the accident motor vehicle while crossing the road, having been dropped by the Appellant’s school bus driver who signaled him to cross. She produced documents including a police abstract (**Exh 5),** death certificate, burial permit (**Exh 3 and 4**), and receipts showing funeral expenses of Kshs. 243,350/-. 3. The eyewitness was **PW2.** His testimony wasthat on the material date, he observed two pupils alight from the Appellant’s school bus that was stopped on the left side of the road at **Kisaju**, facing Kitengela direction; that one of the children attempted to cross the road to the right; that the accident motor vehicle then driving from **Isinya** towards Kitengela direction at high speed knocked down the deceased child; and that the vehicle then dragged him several meters from the scene. The witness blamed both the driver of the accident motor vehicle for not approaching the school bus with caution, and the school bus driver for failing to stop off the road and to assist the pupils to cross the road. He also asserted that the school owner thereafter instructed the bus driver to leave the accident scene before police arrived. 4. According to **PW3**, the then head teacher at the Appellant school, the school policy required drivers or teachers to assist pupils when alighting from the school bus and crossing the road where necessary. He blamed the school administration for negligence, as this procedure was not followed in this instance. Adding that the deceased was a bright pupil, he criticized the school for abandoning the accident scene. 5. Only the Appellant, of the three defendants in the lower court, adduced evidence at the trial. Through its director, **Eric Maina Nderitu** (**DW1**), the Appellant denied that the Appellant was responsible for the students once they had alighted from the school bus and asserted that guardians were responsible for assisting pupils after alighting. He therefore stated that the school was not liable, the accident having occurred outside the bus. He maintained that the pupil’s safety was the responsibility of the guardian once the pupil was outside the bus. 6. The court has considered the evidence and submissions. The basic facts were not in dispute. The deceased, **TLS**, was an 8-year-old pupil at the Appellant's school and used school transport to commute to and from school. On the material date, the deceased was on board the Appellant’s bus on the way home after school. The bus stopped on the left side of the road at **Kisaju** facing Kitengela direction and the deceased, together with another pupil, alighted. As the two attempted to cross the road to the right side, the deceased was knocked down by the accident motor vehicle, which appeared from **Isinya** direction headed towards Kitengela direction. The deceased sustained injuries and instantly died. There was no dispute that the school bus in which the minor was travelling was driven at the time by an employee of the Appellant and that two teachers were on board as escorts, and the Appellant potentially vicariously liable for their proven negligence. The disputed issue was primarily liability between the Appellant, on one hand, and the 3rd and 4th Respondents on the other. 7. As regards the burden of proof in civil cases, this is spelt out in Sections 107, 108 and 109 of the Evidence Act. The import of the said provisions and the standard of proof in civil liability claims in our jurisdiction, that is, on a balance of probabilities, was discussed by the Court of Appeal in **Mumbi M'Nabea v David M. Wachira [2016] eKLR** as follows**:** **“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:** **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.” The above provision provides for the legal burden of proof.** **However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:** **“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.”** **The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:** **“Whereas under Section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, Section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”** 1. Further, the same court in **Karugi & Another v Kabiya & 3 others [1987] KLR 347** observed that: **“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….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.”** 1. The suit against the Appellant was founded on common law negligence, and to some extent breach of implied terms of contract. The Court of Appeal in **SO & JM v Nathan M. Murugu, Lucy Muchiri, Bessie Byakika, Nairobi Hospital, AAR Health Services & Medical Practitioners and Dentist Board [2019] KECA 709 (KLR)** observed concerning the tort of negligence that; - **“Negligence is a specific tort whose origin can be traced from the common law jurisprudence. The case of Donoghue v Stevenson [1932] ALL ER 1 established the modern law of negligence, laying the foundations of the duty of care and the fault principle. The elements which constitute a negligent tort are: a person must owe a duty or service to the victim in question; the individual who owes the duty must violate the promise or obligation; an injury then must arise because of that specific violation; and the injury must have been reasonably foreseeable as a result of the person's negligent actions. See Kenya Breweries Ltd. V. Godfrey Odoyo Civil Appeal No. 127 of 2007.** 1. Thus, the onus of proving any breach of duty of care under common law, or breach of implied terms of contract lies with the party alleging the same. As stated in **Halsburys Laws of England** **4th Edition, Pg. 662**: ***“*The burden of proof in an action for damages fornegligence rests primarily on the plaintiff who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of duty a causal connection must be established.”** 1. Similarly, where breach of an implied term of contractual duty of care is pleaded, the onus is on the claimant to establish the same. Here, the1st and 2nd Respondent’sdirect evidence was the sole version of events surrounding the material accident in question. The test to be applied here was spelt out in the celebrated case of **Donoghue v Stevenson**(supra) concerning the ingredients of negligence and raises the following questions: - **i. Did the School owe a duty of care to the deceased?** **ii. Was there a violation of the said promise or obligation and or duty of care?** **iii. Whether an injury arose because of the Appellant’s specific violation of its promise, obligation and or duty of care.** **iv. Whether the injury was reasonably foreseeable.** 1. Regarding the duty of care owed by the Appellant to the deceased, it is common ground that at all material times relevant to the incident in question, the deceasedminor was enrolled as a student in the Appellant school. Additionally, there was admittedly what appeared a contractual arrangement between his parents and the school to provide transport for the deceased to and from school. Further, it is undisputed that on the date in question, the deceasedalongside other students boarded the school bus driven by the Appellant’s agent, under the escort of two teachers and was to be dropped at Kisaju. Here, the evidence by **PW3**, a former head teacher, was compelling: the school was responsible not only for dropping the pupils at the designated drop-off points but where necessary teachers escorting the bus, or bus driver, were responsible for assisting them to cross the road. 2. Attempts by **DW1** to cast the latter duty upon guardians appeared to ignore the fact that the pupils were for the most part minors who could not be left to alight from the bus without necessary assistance, or worse to cross a road by themselves upon alighting from the school bus. The deceased in this case was only 8 years old and had been dropped off by the bus on the busy **Isinya - Kitengela** road. In any event, **DW1** as a director of the Appellant school could have, but did not tender a copy of the transport or related agreement between the Appellant and the parents of the deceased minor to demonstrate his assertions. Nor did any of the employees performing bus escort duties testify. 3. In this regard, the court is persuaded by the holding of the Supreme Court of Canada in **Myers v Peel County Board of Education (1981) 2 SCR 21** and affirmed in **B.(A) v D.(C) [2011] BCSC 775** while addressing the duty and standard of care owed by schools to pupils, that the appropriate standard of care was one requiring schools to exercise the care of a careful and prudent parent. This standard is essentially consistent with common law principles applicable in this jurisdiction. 4. Thus, a school that provides a transport service for its minor pupils assumes a duty to ensure their safety not only within the bus, but also during disembarking from the bus at the drop-off points and crossing the road, where necessary. In this case, the evidence by **PW3** was that the Appellant school had established procedures to be followed by escorting staff which included assisting the minor students to disembark from the bus and to cross roads, where necessary. The duty of care was therefore clearly established. 5. Moving on to the question whether the duty of care was breached by the Appellant, the evidence adduced through **PW2**, an eyewitness, established that the deceased minor while he attempted to cross the busy road unassisted, was struck by the accident motor vehicle owned by the 3rd Respondent Company Limited, and controlled by the 4th Respondent. 6. The accounts by the 1st and 2nd Respondent’s witnesses relating to the occurrence of the accident were not controverted by any of the defendants in the lower court, including the Appellant which did not call any of the teachers aboard the school bus at the material time, or even the bus driver to give evidence. Through **DW1** however, the Appellant disputed liability for the accident, specifically the school’s responsibility to assist home-going pupils upon alighting from the school bus at their various drop-off points. And claiming that the responsibility lay with the respective guardians once the pupils alighted from the school bus. This, as the court has already found, is an untenable proposition. 7. The court finds, as the trial court did, that there was clear proof of breach on the part of the Appellant’s employees, of the duty of care owed to the deceased minor. The standard expected of a careful and prudent parent which was apparently adopted in the school’s own established safety policy per **PW3** required that the minor pupils not be left to cross a busy highway unassisted upon disembarking from the bus. Patently, the risk of injury was reasonably foreseeable in this case. 8. Asserting the principle of causation and proximate cause, the Appellant disavowed liability for the accident in which the deceased lost his life. The Court of Appeal in **Timsales Limited v Stanley Njihia Macharia [2016] eKLR** while discussing the principles of ‘causation’ cited with approval the decision by **Musinga J** (as he then was) in **South Nyanza Sugar Co. Ltd vs. Wilson Ongumo Nyakwemba [2008] eKLR** quoting **Statpack Industries Limited vs. James Mbithi Munyao HCCA No. 152 of 2003 (UR)** where it was held that:- **“It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone's negligence and his injury. The plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence.”** 1. In **Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR** the Courtof Appeal statedthat *“determination of liability in a road traffic case is not a scientific affair”* and proceeded to quote **Lord Reid**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 more as having jointly caused the accident. I doubt whether any test can be applied generally.”*** *(Emphasis added)* 1. Applying the foregoing to the facts of the case, it is evident, as the trial court found, that the accident occurred chiefly due to the negligence of the Appellant’s employees whose negligent acts the Appellant was vicariously liable. This what the trial court stated: **‘’By not assisting him to cross the road, the teachers had breached their duty of care and in turn placed the deceased in critical danger that resulted in his death . There was in my view no way an eight-year-old would have reasonably assessed the road situation before crossing…the situation was worsened by the fact that the school bus partially obstructed the deceased’s view of the vehicles(approaching) behind the said bus…...**’’ 1. Hence, the trial court apportioned liability at 80% against theAppellant and 20% against the 3rd and 4th Respondents jointly. 2. Regarding the 3rd and 4th Respondents, **PW2**'s uncontroverted evidence was that the accident motor vehicle approached the scene of the stopped bus at high speed and on the wrong side of the road. Sections 47(1) and 49(1) of the Traffic Act impose clear duties of care on drivers, particularly with respect to vulnerable road users such as children. The NTSA Highway Code similarly emphasizes the heightened duty of care owed by road users near school buses and children. 3. The 3rd and 4th Respondents, as the owner and driver/controller, respectively, of the accident motor vehicle that knocked down the deceased child, bear vicarious liability for the accident motor vehicle driver's negligence . Their arguments on this appeal that the evidence in the trial was insufficient are to no avail. The said Respondents did not call any evidence to challenge the evidence of the eyewitness, **PW2** in proof of the particulars of negligence pleaded against them. Nor did they file a cross-appeal to challenge the findings of liability for negligence made against them by the lower court. 4. Having reviewed the evidence tendered at the trial, this court formed the considered view that the trial court’s finding and apportionment of liability against the 3rd and 4th Respondents and the Appellant was correctly arrived at. In distinguishing the extent of liability between the tortfeasors before it, the trial court in its judgment stated as follows: **“In the premises, I do find the Defendants liable for the accident. Nonetheless, the extent of liability between them differs because the 1st & 2nd Defendants’ vehicle only happened to have been at the wrong place at the right time. However, there was some level of care the driver** (of the accident motor vehicle) **owed to other road users especially as he approached a stationary school bus. A reasonable driver would have driven cautiously in the event a pupil emerges from the blues; as was the present case. However, the greatest responsibility lay with the 3rd Defendant’s agents and thus I do apportion liability at 20:80 as between the 1st & 2nd Defendants on the one hand and the 3rd Defendant on the other ….’’**(sic) 1. This court cannot therefore fault the trial court’s findings; the primary and proximate cause of the accident and death of the deceased minor was the Appellant's negligence. The Appellant's driver created a dangerous situation by stopping the bus on a busy road, allowing the children to cross unassisted in front of the bus while their visibility to, and vision of oncoming traffic was obstructed. The driver and the teachers on the bus took no steps to ensure safe passage of the disembarking pupils across the busy road. At the same time, the accident motor vehicle was driven at a high speed while approaching the parked school bus and without the driver exercising the requisite care and attention. 2. A child does not possess the road sense of an adult. Hence, the consistent reluctance by courts in our jurisdiction to apportion contributory negligence against minors without proper proof of their road sense. See for instance, **Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] 1 KAR 5; Rahima Tayab & Ors v Mary Kinanu (1983) KLR 114 ; Nkudate vs Touring & Sporting Cars Ltd. & Anor. (1978) KLR 199 and ; Kariuki v EOO (Minor Suing Through his Next Friend and Father WO) [2023] KECA 845 (KLR).** 3. From these authorities, it is apparent that the law places strict liability on the motorist. Hence shifting the burden on the defendant in proving alleged contributory negligence by a minor involved in a road traffic accident, to demonstrate that the child was of such age and possessed the understanding and appreciation of the dangers associated with the use of a road, and to take precautions for his or her own safety. No such evidence was tendered by the Appellant in the lower court with regard to the deceased minor in support of allegations of negligence at paragraph 6 of the Appellant’ s defence. 4. Thus, the trial court was justified in finding that the 8-year-old deceased minor herein could not have been expected to make a proper assessment of the situation obtaining on the road in question and by himself, make a prudent decision to cross the road. The Court therefore upholds the trial court's apportionment of 80% liability against the Appellant. The 3rd and 4th Respondents bear 20% liability for their own proven negligence. 5. As the ground of appeal challenging quantum was abandoned, the court will not address itself to submissions on that score. In the result, the court has found that the appeal on liability is without merit. The appeal is hereby dismissed with costs to the 1st, 2nd and 4th Respondents. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 25TH DAY OF JUNE 2026.** **** **C.MEOLI** **JUDGE** **In the presence of** **For the Appellant: Ms. Wangari h/b for Ms. Waititu** **For the 1st and 2nd Respondents: Mr. Ochieng** **For the 3rd and 4th Respondents: Ms. Sagini** **C/A: Lepatei**