Vajra Water Drilling Co. Ltd v Ongwenyi (Civil Appeal E047 of 2024) [2026] KEHC 13238 (KLR) (28 May 2026) (Judgment)

Vajra Water Drilling Co. Ltd v Ongwenyi (Civil Appeal E047 of 2024) [2026] KEHC 13238 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 13238 (KLR) Republic of Kenya In the High Court at Nyamira Civil Appeal E047 of 2024 TW Cherere, J May 28, 2026 Between Vajra Water Drilling Co. Limited Appellant and Benard Okindo Ongwenyi Respondent (Being an appeal from the Judgment and decree in Keroka MCCC E032 of 2022 by Hon. B.M. Kimtai (SPM) on 25th July 2023) Judgment 1.The Respondent instituted Keroka MCCC E032 of 2022 against the Appellant seeking general and special damages arising out of a road traffic accident alleged to have occurred on 06th September 2021 along the Keroka–Sotik Road near Metamaywa area involving motor vehicle registration number KBM 326H Isuzu lorry said to belong to the Appellant and an unknown motorcycle. The Respondent pleaded that he was a lawful pillion passenger aboard the unknown motorcycle when motor vehicle registration number KBM 326H allegedly rammed into the motorcycle from behind thereby occasioning him injuries. 2.The Appellant filed a Statement of Defence dated 31st May 2022 denying occurrence of the alleged accident and negligence. The Appellant further maintained that no evidence linked its motor vehicle to the alleged occurrence. 3.Upon hearing the matter, the subordinate court entered judgment in favour of the Respondent and awarded KES.500,000 as general damages and KES.97,520/= as special damages together with costs and interest. 4.Aggrieved by that decision, the Appellant filed the present appeal through the Memorandum of Appeal dated 07th December 2023. The Appellant faulted the subordinate court for finding liability proved despite the motorcycle never having been identified by registration number, despite absence of inspection reports, sketch maps and photographs from the scene and despite contradictions in the Respondent’s own evidence. 5.This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify as stated in Selle & Another v Associated Motor Boat Co. Ltd. [1968] EA 6.Having considered the Record of Appeal, the proceedings before the subordinate court, the judgment appealed from, the grounds of appeal, the submissions by counsel and the authorities relied upon, the following issues arise for determination:1.Whether the Respondent proved occurrence of the alleged accident involving motor vehicle registration number KBM 326H and the unknown motorcycle.2.Whether negligence against the Appellant was established on a balance of probabilities.3.Whether the judgment of the subordinate court should be interfered with. 7.On the first issue, the Respondent was required to establish that the alleged accident occurred in the manner pleaded and that motor vehicle registration number KBM 326H was involved. During cross-examination, he materially departed from his pleadings where he had described himself as a pillion passenger aboard the motorcycle and testified that he was in fact the rider and that he had carried two fare-paying passengers. 8.More significantly, despite claiming to have been the rider, the Respondent testified that he could not remember the registration number of the motorcycle he was allegedly operating, did not know where the motorcycle was and produced no ownership, licensing or documentary material relating to it. He merely stated that the motorcycle belonged to a person “called Nahashon.” 9.In the absence of any explanation for the failure to identify the alleged accident motorcycle by registration number or through other evidence, the Court finds the Respondent’s account difficult to accept. A rider carrying fare-paying passengers would ordinarily be expected to know the motorcycle’s registration particulars or provide other material evidence connecting it to the accident. The unexplained omission significantly undermined the credibility and reliability of the Respondent’s evidence concerning the occurrence of the accident and the alleged involvement of the Appellant’s motor vehicle. 10.Further, PW2 admitted that she neither witnessed nor investigated the accident, her evidence being confined to information extracted from the Occurrence Book records. No sketch map or motor vehicle inspection report was produced, and no evidence was tendered linking the Appellant’s motor vehicle to the alleged accident. Consequently, her testimony carried little probative value in establishing either the occurrence of the accident or the involvement of the Appellant’s motor vehicle. 11.In Statpack Industries v James Mbithi Munyao (2005) eKLR, the Court underscored that allegations of negligence must be proved by cogent evidence and cannot rest on mere assertions. Similarly, in Kenyatta University v Isaac Karumba Nyuthe (2014) eKLR, the Court observed that negligence must be demonstrated through credible and tangible evidence placed before the court. 12.Under Sections 107, 108 and 109 of the Evidence Act, the burden of proof rests upon the party asserting the existence of a fact. Accordingly, the Respondent bore the legal burden of establishing, on a balance of probabilities, that the alleged accident occurred in the manner pleaded and that motor vehicle registration number KBM 326H was involved. The Appellant, in its Statement of Defence, expressly denied both the occurrence of the accident and the involvement of its motor vehicle. The evidentiary burden therefore remained throughout upon the Respondent to prove his claim by credible, consistent and cogent evidence. 13.Upon re-evaluating the evidence on record, this Court is not persuaded that the Respondent proved the occurrence of the alleged accident, whether in the manner pleaded or at all. The inconsistencies in the Respondent’s own testimony especially the failure to properly identify the motorcycle allegedly involved, and the absence of corroborative investigative or independent evidence materially weakened the claim against the Appellant.Top of Form 14.On the second issue, the subordinate court held the Appellant’s driver wholly liable for the accident on the basis that the motor vehicle allegedly collided with the motorcycle from behind. 15.The finding on liability was founded principally on the testimony of the Respondent and PW2, despite PW2’s admission that she neither witnessed nor investigated the alleged accident, thereby leaving the Respondent’s version of events substantially uncorroborated. 16.The subordinate court appeared to attach significant weight to the Appellant’s failure to call the driver of motor vehicle registration number KBM 326H as a witness thereby effectively shifting the burden of proof before the Respondent had discharged the evidentiary burden imposed by law. 17.In Timsales Limited v Wilson Libuywa (2008) eKLR, the Court held that liability cannot be sustained where the evidence tendered is contradictory or insufficient. Similarly, in Eastern Produce (K) Ltd v Christopher Atiado Osiro (2006) eKLR, the Court observed that evidentiary inconsistencies and gaps ought to be resolved in favour of the defendant where doubt exists. 18.Having reconsidered the entire evidence on record together with the authorities cited, this Court is not satisfied that negligence and liability against the Appellant was proved on a balance of probabilities. 19.On the third issue, the principle that an appellate court may interfere with the findings of a trial court where such findings are unsupported by the evidence on record or where the trial court failed to properly evaluate material aspects of the evidence has been settled in cases among them Kemfro Africa Limited t/a “Meru Express Services” & Another v A. M. Lubia & Another [1982–1988] 1 KAR 727. 20.Having re-evaluated the evidence afresh, as required of a first appellate court, this Court, having found that the trial court erred on the issue of liability, also finds that the award on quantum, being consequential thereto, cannot be sustained. 21.Consequently, the appeal is hereby allowed. The judgment and decree in Keroka MCCC E032 of 2022 are hereby set aside in their entirety. In place thereof, the Respondent’s suit before the subordinate court is dismissed with costs. The Appellant shall also have the costs of this appeal. DELIVERED AT NYAMIRA THIS 28TH DAY OF MAY 2026WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - HildaFor Appellant - Mr. Nyangosi for T.O. Nyangosi & CompanyFor Respondent - Mr. Mutitu for Mutitu Thiongo & Co. Advocates