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Nandwa v Kenya Transmission Company Limited (Civil Appeal E175 of 2021) [2026] KECA 1484 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1484 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E175 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA July 24, 2026 Between Teresia Nandwa Appellant and Kenya Transmission Company Limited Respondent (An appeal from the judgment and decree of the High Court of Kenya at Eldoret (O. Sewe, J.) delivered on 5th December, 2019 in HCCA No. 13 of 2018) Judgment 1.This is a second appeal arising from a road traffic accident that occurred on 31st March 2017 along the Kitale-Eldoret road at Miti Moja Area. The appellant, Teresia Nandwa, was a pedestrian who sustained injuries after she was knocked down by Motor Vehicle Registration KBQ 651D, owned by the respondent, Kenya Transmission Company Limited. These are the only details on which the parties agree: that the accident occurred; that the appellant sustained injuries; and that the respondent owned the vehicle. At the hearing, it was clear that the dispute is largely on the question of liability, and the plea by the court to the parties to agree on that issue bore no fruit; it is now our duty to bring this long-running dispute to an end. 2.To put the appeal in context, we shall give a background to the dispute. On 31st March 2017, the appellant was walking along the Kitale-Eldoret road. The respondent’s vehicle was being driven along the said road by its driver (who was not joined as a party to the suit). The appellant was knocked down by the vehicle, and she sustained injuries. Consequently, the appellant filed suit in the Chief Magistrate's Court at Eldoret CMCC No. 537 of 2017 seeking general and special damages. 3.In a plaint dated 19th May 2017, the appellant stated that on 31st March 2017, she was lawfully walking as a pedestrian beside the road when the respondent's driver negligently drove Motor Vehicle KBQ 651D, causing it to veer off the road and knock her down. Particulars of negligence included; driving at an excessive speed, thereby losing control of the vehicle; failing to keep a proper lookout or sufficient regard for other road users, in particular the appellant; failing to swerve, brake or control the vehicle; and driving carelessly and recklessly as a result causing the accident. 4.The respondent filed a statement of defence dated 9th June 2017 denying the allegations and averring that if any accident occurred, it was due to the sole negligence of the appellant. The particulars of contributory negligence included; staggering into the path of the vehicle, darting across the road without ascertaining whether it was safe to do so, and failing to keep a proper lookout, in particular, for the Motor Vehicle KBQ 651D. 5.The appellant filed a reply to defence, joining issue with the respondent and reiterating the averments in the plaint. 6.The trial court (Hon. E. Kigen, RM), in a judgment delivered on 2nd February 2018, found that the appellant had discharged her burden of proof and that the accident was caused by the negligence of the respondent. The court stated:"I therefore find that the Plaintiff has discharged her burden of proof proving that the accident took place as result (sic) of the negligence on the part of the Defendant, who are (sic) also held vicariously liable. However, it is my finding that the Plaintiff as well ought to have been more careful while using the road and hence cannot escape blame as such I find that the Plaintiff should shoulder 10% of the blame. Liability is thus entered in the ratio of 90:10 in favour of the Plaintiff as against the Defendants." 7.On quantum, the trial court awarded Kshs. 1,000,000/= as general damages and Kshs. 6,000/= as special damages, less 10% contribution, resulting in a total award of Kshs. 905,400/=. 8.The respondent was aggrieved by the judgment, and it filed an appeal in Eldoret Civil Appeal No. 13 of 2018. 9.The High Court (Olga Sewe, J.), in a judgment delivered on 5th December 2019, allowed the respondent's appeal and set aside the lower court judgment. The first appellate court held that the evidence of the respondent's witness (PW1, a Police Officer) supported the driver's account that the appellant was knocked down while crossing the road. The court further noted that the P3 Form indicated that the appellant was crossing the road. The court found:“In my re-evaluation, there is more credence in the Appellant's account, not only because it is supported by the evidence of the Respondent's own witness (Pw1), but also by the P3 Form wherein the Respondent herein gave the brief details of the incident as 'she alleges that she was involved in a road accident at Mti Moja Area along Kitale- Eldoret Road while crossing the road.'" 10.On quantum, the court noted that given the serious injuries, it would not have disturbed the trial court's award, but since the suit was dismissed on liability, the question of quantum was rendered moot. 11.The appellant, being aggrieved by the High Court decision, filed a notice of appeal on 16th December 2019 and a memorandum of appeal dated 22nd September 2021, raising 4 grounds namely:i.That the learned trial judge erred in law and in fact in allowing the appeal.ii.That the learned trial judge erred in law and in fact in holding the Appellant wholly liable for the accident.iii.That the learned trial judge erred in law and in fact in dismissing the Appellant's case.iv.That the learned trial judge erred in law and in fact in failing to consider the Appellant's evidence on record together with that of her witnesses. 12.The appellant prays that the High Court decision be set aside and the issue of liability be reassessed and re-determined. 13.The appeal was heard virtually on 25th May 2026. Ms. Akweyu, holding brief for Mr. Mwinamo, appeared for the appellant and Ms Gati, holding brief for Mr. Onyinkwa, appeared for the respondent. The parties relied on their written submissions, which were briefly highlighted. 14.We have considered the record of appeal, the submissions by the parties and the relevant authorities. This being a second appeal, our jurisdiction is confined to matters of law only. On a second appeal, the Court confines itself to matters of law only, unless it can be shown that the courts below considered matters that they should not have considered or failed to consider matters that they should have considered, or looking at the decision, it is plainly wrong and no reasonable tribunal based on the facts can reach such a decision. (see Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR). 15.Having considered the record, the documents, and the parties’ submissions, main issue that arise for determination is whether the High Court erred in holding that the appellant was wholly liable for the accident. 16.The appellant submits that the accident occurred when she was lawfully walking as a pedestrian beside the road and that the respondent's vehicle veered off the road and knocked her down. She relies on her own testimony and the evidence of PW1, the Police Officer, who stated that the point of impact was off the road. 17.On its part, the respondent contends that the appellant was running while crossing the road, and that she dashed to the road so swiftly that there was no time to brake or avoid the accident. It relied on the evidence of its driver (DW1), who testified that he was on his correct lane when the incident occurred. 18.As already stated, the learned Judge in the first appeal agreed with the evidence of the respondent that the appellant was knocked down when crossing the road from right to left, and the P3 Form, which indicated that the appellant was crossing the road. 19.Negligence is both a question of fact and law. The law provides that if the driver of a vehicle is negligent, a person injured in the accident is entitled to damages. How an accident occurred is a question of fact. The parties have a duty to explain to the court what transpired before the accident. If one is a pedestrian, like the case before us, the pedestrian should give evidence on where they were walking or standing before the accident, the distance from the road, and, if crossing the road, what precautions they took before walking onto the road. On the part of the driver, he or she ought to explain the speed he or she was driving at, the conditions of the road, whether he or she was on the lookout for the sudden emergence of a person or an animal, that may cross the road, and what effort he or she made to avoid the accident. Accidents occur in many versions, and this list cannot be exhaustive. Circumstances of each will be different, and therefore the parties have a duty to give the facts as truthfully as they can, which can be supported by secondary evidence from the investigations by the police, who should impartially assess the point of impact and give an independent and honest opinion. 20.Sections 107 and 108 of the Evidence Act stipulate who bears the burden of proof in a civil case. It bears repeating that the appellant, being the plaintiff in this appeal bore the burden to prove her case on a balance of probabilities that the accident was caused as alleged through negligence of the respondent, and as a result, she suffered loss as per the various heads of damages that she claimed. In Charlesworth & Percy on Negligence, 9th Edition at pg. 387 it is stated that:“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, 1) whether on that evidence, negligence may be reasonably inferred and 2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.” 21.Since the facts are in dispute and the two courts below arrived at different findings, we must revisit the evidence. PW1, P.C Cheresek Kiptoo, only produced the extract of the Occurrence Book. She never visited the scene and in her own words, the matter was still pending investigations at the time she gave evidence. The appellant, in her brief evidence, stated that she was walking beside the road when she was hit. In cross-examination, she denied that she was crossing the road when she was hit. On his part, DW1, on behalf of the respondent, was equally brief. He said that the appellant was running while crossing the road and he had no time to avoid the accident. 22.That was the evidence that was before the trial court. The trial magistrate, who saw the witnesses, found the respondent 90% liable, but the reasons for that holding are brief. On her part, the learned Judge concluded that the appellant was 100% liable for the accident. 23.We have carefully considered the evidence presented by the parties. It is not denied that the accident occurred and that the appellant was injured. The appellant states that she was walking beside the road. The driver of the vehicle, on his part, states that the appellant was running across the road. The driver does not state the speed at which he was driving and what effort he made to avoid the accident. PW1 did not visit the scene and her evidence was that the matter was under investigation. We note that the learned Judge considered the fact that in the police abstract, it was indicated that the appellant was crossing the road. 24.The record shows that the respondent's driver (DW1) conceded that he saw the appellant and tried to swerve but was unsuccessful. This admission suggests that he may not have been driving at a speed that allowed him to stop or avoid the accident. In Mutubwa v Thermopak Limited & another [2024] KECA 1960 (KLR), this Court adopted the principle in Lakhamshi v Attorney General [1971] EA 118, where Spry, V.P. stated:"I accept that in many cases, as for example, where vehicles collide near the middle of a wide straight road, in conditions of good visibility, with no obstruction or other traffic affecting their courses, there is, in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the centre of the road, the other must have been negligent in failing to take evasive action. I think that it is usually possible although often extremely difficult to apportion the degree of blame between two drivers both guilty of negligence but I accept that where it is not possible, it is proper to divide the blame equally between them."[emphasis added] 25.In the appeal before us, it is clear that both parties failed to exercise the degree of care expected of a reasonable road user.The appellant, if she was crossing the road, had a duty to ensure it was safe to do so and to take precautions for her own safety. If she was beside the road as she alleges, she ought to have given evidence of the distance she was off the road. The respondent's driver, on the other hand, had a duty to keep a proper lookout and to drive at a speed that would allow him to stop or take evasive action if a pedestrian was on the road. The evidence of a driver who only states that a pedestrian was running across the road without stating the speed he was driving at or that he tried to brake, or take any other evasive action, cannot be used to entirely blame the pedestrian for the accident. A pedestrian cannot be entirely blamed for an accident simply because he or she was hit while crossing the road. Drivers are responsible for the safety of other road users including pedestrians. 26.In our analysis, this is a case where both parties should be held liable on equal basis. We are guided by the decision in Ndiritu v Ropkoi & another [2004] KECA 65 (KLR), where this Court, faced with conflicting evidence and scanty evidence on the point of impact, apportioned liability equally at 50:50. The Court stated:"In our assessment of the scanty evidence on record however both the lorry driver and the motorcyclist failed to exercise the degree of care and skill reasonably to be expected of a person driving a vehicle on a public highway. They were in our view equally to blame. We therefore apportion liability for the accident at 50/50." 27.We find that the evidence on record does not support a finding of 100% liability against either party. The evidence shows that both parties were negligent to some degree. The appellant has not proved that the respondent was solely to blame. The respondent has also not proved that the appellant was solely to blame or that he was blameless in the circumstances. At the risk of repetition, we say that we are particularly mindful that neither party called an independent eyewitness of the accident. The evidence on record is solely from the parties themselves, each advancing a version of events that suits their respective cases. The appellant contends that she was walking beside the road when the respondent's vehicle veered off and knocked her down, while the respondent's driver maintains that the appellant was running across the road and he was unable to avoid her. In the absence of independent corroboration, the Court is left with two conflicting accounts, neither of which is supported by independent evidence. 28.Furthermore, we note that the Police Officer who testified as PW1, was not the Investigating Officer. She conceded during cross-examination that she never visited the scene of the accident, did not conduct any investigations, and merely relied on the Occurrence Book entry. Her testimony, therefore, did not assist the Court in establishing the precise circumstances leading to the accident. As was observed in Evans Mogire Omwansa v Bernard Otieno Omolo & Another (2016) eKLR, a Police Officer who produces a Police Abstract but was not the Investigating Officer is of no assistance to the Court as to causation, save for the production of the abstract which confirms the occurrence of the accident. In the absence of a sketch plan, an investigation report, or evidence from the Investigating Officer, the Court is handicapped in determining with certainty the point of impact and the exact circumstances of the accident. In the circumstances, we find it just and equitable to apportion liability equally at 50:50 between the appellant and the respondent. 29.We therefore set aside the finding of the learned Judge that the appellant was wholly liable and substitute it with a finding of contributory negligence of 50% on the part of the appellant and 50% on the part of the respondent. 30.In the final analysis, we set aside the judgment and the subsequent decree and substitute it with a judgment in favour of the appellant as follows:i.The parties shall share liability on 50: 50 basis.ii.The appellant is awarded damages as follows as per the judgement of the trial court;a.General Damages: Kshs. 1,000,000/=b.Special Damages: Kshs. 6,000/=Less 50% contributory negligence: Kshs. 503,000/= Total: Kshs. 503,000/=. 31.We further hold that the appellant is entitled to interest on the general damages at court rates from the date of judgment in the lower court, 2nd February 2018, and on special damages from the date of filing suit, 19th May 2017. 32.Costs follow the event. The appellant shall have half of the costs of the suit in the lower court, High Court and costs of this appeal. 33.In conclusion and for avoidance of doubt, the appeal partially succeeds. The judgment of the High Court is set aside and substituted with a judgment for the appellant in the sum of Kshs. 503,000/= together with costs and interest as stated above. Orders accordingly. DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb........................................JUDGE OF APPEALW. KORIR.......................................JUDGE OF APPEALL. M. NDOLO.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar