https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7714

Undisa v Debel (Civil Appeal E490 of 2025) [2026] KEHC 7714 (KLR) (Civ) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7714 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E490 of 2025 AN Ongeri, J June 2, 2026 Between Violet Undisa Appellant and Abdi Mohamed Debel Respondent (Being an appeal from the Judgment of Hon Z K Kiboss(RM) in Milimani (MCCC E2667/2022 delivered on 24th April 2025.) Judgment 1.The Appellant filed Milimani CMCC NO. E2667 of 2022 vide plaint dated 30/5/2022 seeking general damages under Fatal Accidents Act and the law Reforms Act and special damages of Ksh 432,627 on behalf of the Estate of Peter Musa Lisangari (deceased). 2.The Respondent did not enter appearance or file a defence and the case proceeded exparte. 3.The Appellant called two witnesses. The Appellant’s case was that the deceased who was her husband was a lawful pillion passenger along Lusaka Road when he was hit by motor vehicle number KCQ 237Z and he sustained fatal injuries. 4.One of the witnesses was PC Maura Consolata Mwaura from Industrial Area Police Station who said that the accident occurred at Nyayo Roundabout and further that the motorcycle was being driven on the wrong side of the road and was blamed for the accident. 5.The trial court dismissed the Appellants case for reasons that the Appellant did not prove liability. 6.The trial court said it would have awarded damages as follows had the Plaintiff proved her case;i.General damages for pain and suffering Ksh 100,000ii.Loss of expection of life 180,000iii.Loss of dependency 13,572 x 12x27x2/3 = 2,931746iv.Special damages Ksh 550v.Total 3,212,296.40 7.The Appellant has appealed against the said judgment on the following grounds:-i.That the learned trial Magistrate/Adjudicator erred in law by dismissing the Claimants claim against the Defendant therein.ii.That the learned trial Magistrate/Adjudicator erred in law by not properly, as expected and/or dutifully analyzing and/or considering and appreciating the pleadings and factual evidence.iii.That the learned trial Adjudicator erred in law by failing to find that the courts role after entering interlocutory judgment was only to assess damages.iv.That the learned trial Adjudicator erred in law by not finding that the Plaintiff’s case against the Defendant was unopposed and or uncontroverted.v.That the learned Magistrate erred in law and in fact in failing to consider the submissions and material placed on record by the Appellant. 8.The parties filed written submissions as follows; The appellant submitted that they are seeking to set aside the trial court’s judgment that dismissed a plaint filed by Violet Undisa, acting as the administrator of the estate of the deceased Peter Musa Lisangari. 9.The underlying lawsuit sought special and general damages from the respondent, Abdi Mohamed Dabel, following a road traffic accident on March 4, 2019, along Lusaka Road in Nairobi, where the deceased was riding as a pillion passenger on a motorcycle. 10.The appellant contends that the accident was caused by the negligence of the respondent, who owned and operated the motor vehicle involved. 11.Despite the respondent failing to enter an appearance, which led to the matter proceeding undefended after an interlocutory judgment was regularly entered on October 15, 2024, the trial court ultimately dismissed the entire suit with no order as to costs. 12.The main argument presented in the submissions is that the trial magistrate erred by revisiting and determining the question of liability during the formal proof hearing. 13.The appellant asserts that once an interlocutory judgment is regularly obtained, the issue of liability becomes a final and unassailable conclusion, resolving that specific element of the case entirely. 14.Consequently, the sole remaining mandate for the trial court was strictly to assess the quantum of damages. 15.To support this position, the submissions rely heavily on established jurisprudence, including David Maina Njoroge v. Ginyalili Farm Ltd, Felix Mathenge v. Kenya Power & Lighting Company Ltd, and Abdullah Ibrahim Ahmed v. Lem Lem, which collectively buttress the rule that a trial court cannot backtrack to impugn a regular interlocutory judgment or dismiss a suit for want of proof of liability during formal proof. 16.Additionally, the appellant argues that the trial magistrate misdirected herself by relying on a one-sided account from the police occurrence book and the testimony of a police officer who was not present at the scene of the accident. 17.The appellant points out that the occurrence book entry merely reflected a report made by the respondent while the deceased was hospitalized, and notes that a police report or abstract does not legally establish negligence on its own. 18.Furthermore, the appellant emphasizes that the deceased was a mere pillion passenger with no control over the motorcycle, meaning he could not bear liability for the collision. 19.The case was entirely unopposed and uncontroverted, and therefore the appellant maintains that the magistrate fell into a serious error by shifting the blame to a non-party and failing to consider the material evidence and legal submissions placed on the record. 20.In conclusion, the appellant requests that the high court allow the appeal, set aside the magistrate's dismissal, enter judgment in favor of the appellant on liability, and award quantum assessed at 3,182,296.40 Kenyan Shillings alongside the costs and interest of the proceedings. 21.The Respondent, Abdi Mohamed Dabel, opposed in its entirety the appeal brought by the Appellant, Violet Undisa. 22.He said that the appeal arises from a March 24, 2025 judgment in Chief Magistrate’s Civil Case No. E2667 of 2022, which dismissed the Appellant’s initial suit with no orders as to costs. 23.The Respondent submitted that underlying suit stems from a motor traffic accident on March 4, 2019 along Lusaka Road that resulted in the death of the Appellant's spouse. 24.Although the Respondent failed to enter an appearance or file a defence, leading to an interlocutory judgment on October 15, 2024, the trial court ultimately found at the formal proof hearing that the Appellant had failed to prove her case to the required standard. 25.The Appellant subsequently appealed on several grounds, primarily contending that the Trial Magistrate erred by dismissing the claim, failing to properly analyze the pleadings and evidence, and failing to recognize that the court’s sole role after an interlocutory judgment was to assess damages since the case was uncontroverted. 26.In response, the Respondent presents two primary issues for the High Court's determination: whether the Appellant still bore the duty to prove negligence and causation despite the entry of an interlocutory judgment, and which party should bear the costs of the proceedings. 27.On the first issue, the Respondent argues extensively that an interlocutory judgment does not relieve a plaintiff of the legal burden to prove negligence, liability, and causation on a balance of probabilities. 28.To support this, the submissions cite multiple judicial precedents, including the Court of Appeal decisions in Mbogo v Settlement Land Trustees and Karugi v Kabiya, which establish that the burden of proof is not lowered or lessened in an undefended suit heard by way of formal proof. 29.While an uncontested suit means the plaintiff's evidence remains unchallenged, the plaintiff must still present credible, reliable evidence to connect the defendant to the alleged liability. 30.The Respondent also references EMC (A minor) v James Irungu Nyanja and Kiema Mutuku v Kenya Cargo Hauling Services Ltd to emphasize that Kenya's legal system does not recognize liability without fault, meaning a plaintiff asserting negligence must demonstrate exactly how an accident occurred and the role the defendant played in it. 31.Applying these legal principles to the facts, the Respondent asserts that the Appellant failed to discharge her burden of proof. 32.The Respondent points out that the Appellant was not present at the scene, making her own account hearsay. 33.Furthermore, the Respondent highlights the trial evidence of the police witness, PC Consolata Mwaura, who testified that the deceased was a pillion passenger on a motorcycle riding on the wrong side of the road when it collided with the Respondent's vehicle. 34.According to the police records, the motorcycle rider was solely blamed for causing the accident and fled the scene immediately after. 35.The evidence explicitly faults the motorcycle rider rather than the Respondent, and because the Appellant failed to establish a causal link between the Respondent's conduct and the accident, the Respondent maintains that the trial court properly exercised its discretion in dismissing the suit. 36.The High Court is therefore urged to uphold the lower court’s judgment. 37.Regarding the second issue, the Respondent submits that costs should follow the event in accordance with Section 27 of the Civil Procedure Act. Citing the case of DGM v EWG, the Respondent notes that a successful party is legally entitled to costs unless there is evidence of misconduct or another compelling reason to deny them. 38.Having demonstrated that the Appellant's appeal lacks merit, the Respondent submitted that this Court should dismiss the appeal and award the general costs of the appeal to the Respondent. 39.The issues for determination in this appeal are as follows;i.Whether, after entering interlocutory judgment, the trial court was required to revisit the issue of liability.ii.Whether the trial court erred by dismissing the Appellant’s suit based on an assessment of liability and the police evidence. 40.The Appellant properly served the Respondent, who failed to enter appearance or file a defence. 41.An interlocutory judgment was duly and regularly entered on 15th October 2024. 42.Once an interlocutory judgment has been regularly obtained, it is final on liability and unassailable. 43.The sole remaining role of the court is to assess the quantum of damages. 44.The role of the court after entering the interlocutory judgment in such a case like this was only to assess damages. 45.Interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and the same was unassailable. 46.The trial court made a fundamental legal error. 47.Therefore, the trial magistrate erred by revisiting and dismissing the suit on liability grounds. 48.The appeal is meritorious and the same be and is hereby allowed. 49.On the issue of assessing quantum of damages, this court adopts the trial court’s own calculation, which was uncontested and remains valid. 50.The same were as follows;i.General damages for pain and suffering Ksh 100,000ii.Loss of expection of life 180,000iii.Loss of dependency 13,572 x 12x27x2/3 = 2,931,746iv.Special damages Ksh 550v.Total 3,212,296.40 51.Consequently, Judgment is entered in favor of the Appellant against the Respondent for Ksh 3,212,296.40 and costs of the suit in the lower court and costs of this appeal. 52.Interest on the above amount at court rates from the date of the lower court judgment until payment in full. 53.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofMiss Oduor holding brief for Mr Wangita for the AppellantMr Ondari for the RespondentChrispine - Court Assistant