https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9035

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO. E140 OF 2024** VIRGINIA NYAGA ............................................................................ APPELLANT VERSUS SUPER VENTURE LIMITED ............................................................. RESPONDENT **(Being an Appeal from the Judgment and Decree of the Small Claims Court at Murang'a (Hon. D.C Soy RM/Adjudicator) in Murang'a MCCC No. E151 of 2024 delivered on 27th November 2024)** **JUDGMENT** **Introduction** 1. This is a first appeal from the judgment and decree of the Small Claims Court at Murang’a delivered on 27th November 2024. The Appellant, Virginia Nyaga, was the Claimant in the lower court, where she sought damages arising from a road traffic accident involving her motor vehicle registration number KCW 503L and the Respondent’s motor vehicle registration number KBS 604D. By that judgment, the learned Magistrate dismissed the Appellant's claim in its entirety with costs to the Respondent. **Background** 1. The Appellant’s case before the trial court was that on or about the material date, she was the registered owner of motor vehicle KCW 503L and was driving along Kenol-Sagana road when her vehicle was hit from the rear by motor vehicle registration number KBS 604D, owned by the Respondent. She testified that the driver of the Respondent’s vehicle rammed into her vehicle from the rear while she was slowing down due to traffic congestion. She stated that she spoke to the driver, smelled alcohol on his breath, and that the driver took off immediately after the accident. The matter was reported to the police, and a police abstract was issued indicating that the Respondent’s vehicle was to blame for the accident. 2. The Appellant produced an assessment report, repair invoices, a re-inspection report, a car hire contract, and a tracing report to prove her claim for damages amounting to Kshs. 203,278/-. The Appellant’s testimony was corroborated by the evidence of a police officer who produced the police abstract, though he did not visit the scene of the accident. 3. The Respondent’s case was that its motor vehicle KBS 604D was at a construction site in Maragi area within Murang’a town at the time of the alleged accident and could not have been involved in the accident. The Respondent’s witness, Mr. Lameck K. Mangi (RW1), testified that his vehicle was not white in color, but upon cross-examination and perusal of the logbook and NTSA search, the vehicle’s color was confirmed as white. The Respondent also confirmed that his vehicle was blamed for the accident in the police abstract. **The Appeal** 1. The Appellant being dissatisfied with the said judgment lodged a Memorandum of Appeal dated 13th December 2024 raising the following grounds: 2. The learned Magistrate erred in law by disregarding the evidence of the Appellant and giving undue weight to the evidence of the Respondent. 3. The learned Magistrate erred in law in treating the evidence of the Appellant superficially and in failing to evaluate and make a determination to the effect that the testimony of the Appellant was corroborated by the evidence of the police officer and the assessor and was more credible. 4. The learned Magistrate erred in law by finding that the Appellant did not prove that there was an accident between the Appellant’s motor vehicle KCW 503L and the Respondent’s motor vehicle KBS 604D on the date, place and time alleged by the Appellant. 5. The learned Magistrate erred in law by finding that there was no proof showing that the Respondent was liable for the accident in question. 6. The learned Magistrate erred in law by failing to give weight to, consider and fathom the Appellant’s written submissions and authorities before 7. The learned Magistrate erred in law in awarding costs of the suit and interest to the Respondent. 8. The Appellant prays that the Appeal be allowed, the judgment of the lower court be set aside, and the claim be allowed as prayed in the lower court with costs **Respondents Submissions** 1. The parties filed written submissions in support of their respective positions. The Respondent submitted that the Appellant failed to discharge the burden of proof to the required standard, citing the principles in **Peter Kanithi Kimunya vs. Aden Guyo Haro [2014] eKLR** that a police abstract is not proof of the occurrence of an accident but proof that an accident was reported. The Respondent argued that the Appellant failed to call crucial witnesses, such as the passenger in her vehicle, and that the investigating officer did not visit the scene. The Respondent also argued that submissions cannot take the place of evidence, relying on **Daniel Toroitich Arap Moi v Mwangi Stephen Murithi & Another [2014] eKLR.** **Appellant’s Submissions** 1. The Appellant, on the other hand, submitted that the trial court erred in finding that she did not file submissions, yet the record shows that her submissions were filed on the same day as the Respondent’s submissions. The Appellant argued that her testimony as an eye witness, corroborated by the police abstract and the assessment report, was sufficient to prove her case on a balance of probabilities. The Appellant relied on **Section 143 of the Evidence Act**, which provides that no particular number of witnesses is required for the proof of any fact. **Analysis and Determination** 1. It is trite law that on a first appeal, this Court has a duty to re-evaluate, reassess, and re-analyze the entire record of evidence, including testimonies and exhibits, and arrive at its own independent conclusions. While exercising this mandate, the Court must respect the trial court's advantage of seeing and hearing the witnesses, but it is not bound by findings of fact if they are inconsistent with the evidence on record. 2. In the seminal case of **Peters v Sunday Post Limited [1958]** , the Court of Appeal for Eastern Africa stated:” This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions." 3. This principle was more recently restated by this Court in **Abdul v Mokua (Civil Appeal E077 of 2023) [2025] KEHC 4105 (eKLR)**, where it was held:” This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand." 4. Similarly, in **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] ,** the Court held that: “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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..." 5. I have considered the grounds of appeal, the evidence adduced in the lower court, and the rival submissions of parties. I find the main issues for determination to be ; 6. Whether the learned Magistrate erred in law by disregarding the Appellant's evidence and giving undue weight to the Respondent's evidence; 7. Whether the learned Magistrate erred in law in failing to evaluate and make a determination that the Appellant's testimony was corroborated by the evidence of the police officer and the assessor and was more credible 8. Whether the Appellant proved on a balance of probabilities that an accident occurred between motor vehicle KCW 503L and motor vehicle KBS 604D on the date, place, and time alleged; 9. Whether the Appellant proved that the Respondent was liable for the accident in question; 10. Whether the learned Magistrate erred in law by failing to consider the Appellant's written submissions; and 11. Whether the learned Magistrate erred in law in awarding costs of the suit and interest to the Respondent. **Whether the Learned Magistrate Erred by Disregarding the Appellant's Evidence** 1. The Appellant contends that the learned Magistrate erred in law by disregarding her evidence and giving undue weight to the Respondent's evidence. I have perused the record of appeal and the judgment of the lower court. The Appellant testified as CW1 and adopted her witness statement dated 27th August 2024. She testified that on the material day, she was driving her motor vehicle KCW 503L along Kenol-Sagana Road headed towards the Nairobi direction. She stated that there was a traffic snarl-up as she approached the dual carriage road near Kenol, and she therefore slowed down gradually. She testified that it was at that time when motor vehicle KBS 604D rammed into her vehicle from the rear. 2. The Appellant further testified that at cross-examination, she spoke to the driver of KBS 604D after the accident, could smell alcohol from his breath, and that he took off immediately after the accident. At re-examination, she confirmed that although the driver took off, she was able to get the registration number of the vehicle. 3. The learned Magistrate, in her judgment, appears to have discounted the Appellant's testimony on the basis that she did not call her cousin, who was allegedly a passenger in her vehicle at the time of the accident, to testify as a witness. The Magistrate took issue with the fact that the Appellant confirmed at cross-examination that she was with a passenger who was her cousin and that the said passenger did not testify as a witness. 4. I find that the learned Magistrate misdirected herself in this regard. Section 143 of the Evidence Act, Cap 80 Laws of Kenya, provides as follows: "No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact." 1. This provision was recently applied by this Court in **Atiti v Republic (Criminal Appeal E054 of 2022) [2024](eKLR)**, where it was held: “A court cannot therefore dictate or compel the Prosecution on the number of witnesses it should avail as long as the Prosecution proves its case through the witnesses it presents. 2. The fact that the Appellant's cousin did not testify does not negate the Appellant's own testimony as an eye witness to the accident. The Appellant was present at the scene, observed the accident, interacted with the driver of the offending vehicle, and reported the matter to the police. Her testimony, standing alone, is capable of proving the occurrence of the accident. The requirement for corroboration does not mean that every potential witness must be called. What matters is whether the evidence adduced is sufficient to discharge the burden of proof on a balance of probabilities. 3. In **Mohammed v Mungai & another (Civil Appeal E109 of 2024) [2025](eKLR)**, this Court recently held: “It is important to note that as a matter of significance, with the clarification, the evidence of PW3 then reverted to his initial testimony in chief which then corroborated the evidence of the Appellant on the material particular on how the accident occurred. This is an aspect of the evidence in support of the Appellant's case that ought not to have been overlooked by the Learned Magistrate." 4. I therefore find that the learned Magistrate erred in law by disregarding the Appellant's evidence on the basis that she did not call her cousin as a witness. The Appellant's testimony as an eye witness was sufficient to establish the occurrence of the accident, and the Magistrate ought to have accorded it due weight. **Whether the Appellant's Testimony Was Corroborated** 1. The Appellant contends that the learned Magistrate erred in failing to evaluate and make a determination that her testimony was corroborated by the evidence of the police officer and the assessor and was more credible. I have carefully examined the record of appeal in this regard. 2. The Appellant's testimony was corroborated by several pieces of evidence: **Police Records:** The police abstract produced by the Appellant confirmed that an accident was reported involving motor vehicle KCW 503L and motor vehicle KBS 604D. The police records further confirmed that the details of the offending motor vehicle matched those of the Respondent's motor vehicle. **Assessment Report:** The assessor's report confirmed that the damage on the Appellant's vehicle was at the rear, consistent with the Appellant's testimony that she was hit from behind. The report is contained at pages 21 to 26 of the record of appeal **The Appellant's Own Testimony:** The Appellant testified that she was driving her vehicle when KBS 604D rammed into her from the rear. She was able to identify the registration number of the offending vehicle. 1. In **Ngure v Maina (Civil Appeal E166 of 2024) [2025](eKLR)**, the High Court at Nairobi, while clarifying the limited probative value of police abstracts, nonetheless acknowledged that: “A police abstract is prima facie evidence of facts reported to the police, and in the absence of contrary evidence, it can be relied upon." 2. In the present case, the police abstract was not standing alone. It was supported by the Appellant's direct testimony as an eye witness and the assessor's report confirming rear-end damage.. 3. The principle that one eye witness is sufficient so long as their testimony is corroborated by other evidence is well established. In **Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] (eKLR)**, the Court of Appeal recently reiterated the duty of care owed by drivers, stating:” Every driver on a public road is duty bound to be on the lookout at all times to avoid possible injury and loss to other road users. Where a collision occurs between two motor vehicles, it is in many a situation possible to establish, with evidence of eyewitnesses, who between the two contributed to what extent to the collision." 4. I therefore find that the Appellant's testimony was indeed corroborated by the police records and the assessor's report, and the learned Magistrate erred in failing to so find. **Whether the Appellant Proved the Occurrence of the Accident** 1. The Appellant contends that the learned Magistrate erred in finding that she did not prove that there was an accident between her motor vehicle KCW 503L and the Respondent's motor vehicle KBS 604D on the date, place, and time alleged. I have re-evaluated the evidence on this issue. 2. The evidence adduced by the Appellant established the following: **(a)** The Appellant testified as an eye witness that she was driving along Kenol-Sagana Road when her vehicle was hit from the rear by KBS 604D; **(b)** She reported the accident to the police, and a police abstract was produced confirming the occurrence of the accident and the involvement of both vehicles; **(c)** The assessor's report confirmed damage to the rear of her vehicle, consistent with a rear-end collision; **(d)** She identified the registration number of the offending vehicle as KBS 604D; **(e)** The driver of KBS 604D fled the scene, but she was able to obtain his vehicle's registration details. 1. The Respondent's witness, Mr. Lameck K Mangi (RW1), testified that his vehicle KBS 604D was at a construction site in Murang'a Town in Maragi near Murang'a University at the time of the alleged accident. However, under cross-examination, he confirmed that he did not have the contract supporting this alibi . Furthermore, RW1 stated in his witness statement that his vehicle could not have caused the accident as his car was not white. However, upon perusal of the log book and the NTSA Search of the record, the color of the Respondent's vehicle is indicated as white. During oral testimony upon re-exam by his counsel, he confirmed that his motor vehicle was white thus demonstrating a lack of candor in his testimony. 2. The Respondent's defence was therefore riddled with inconsistencies and a lack of credible evidence. The Respondent failed to produce any documentary evidence to support the claim that the vehicle was at a construction site. No contract was produced. The Respondent's witness was evasive and contradictory on a material fact , the color of the vehicle. 3. On Evidentiary burden. Section 107 of the Evidence Act provides that ; “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 exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person” 4. Section 108 provides that;” the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 112 of the Evidence Act that ; In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 5. While the legal burden stays with the plaintiff, the evidential burden can shift to the defendant once the plaintiff establishes a *prima facie* case. After the plaintiff presents sufficient evidence, the evidential burden shifts to the defendant to rebut or explain it. If the defendant fails to do so, the plaintiff may succeed. 6. In the case of **Midland Hotel v Kioko (Civil Appeal 183 of 2022) [2024](eKLR)**; The High court relied on the case of **Raila Amolo Odinga & Another V IEBC & 2 Others [2017] eKLR**that:-“Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the Plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.It follows therefore that once the Court is satisfied that the Petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the Respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the Petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behoves the Respondent to adduce evidence to prove compliance with the law.” 7. In **Kerongo v Wambogo & 2 others (Civil Appeal E187 of 2023) [2024](eKLR)**, this Court held: “Ordinarily, under section 107 of the Evidence Act, the standard of proof in civil cases is on a balance of probability. The burden is discharged if, on a balance of probabilities, it is shown that as a matter of fact, the vehicle had been transferred but not yet registered, to a de facto owner, a beneficial owner or a possessory owner." 8. Applying this standard, I find that the Appellant has proved on a balance of probabilities that the accident occurred as alleged. The evidence of the Appellant, corroborated by the police abstract and the assessor's report, is more probable than the Respondent's uncorroborated and contradictory testimony. 9. The whereabouts of the Respondent's vehicle at the material time of the alleged accident was a fact especially within the knowledge of the Respondent. The Respondent was therefore bound to prove that its vehicle was at the construction site as alleged in accordance with Section 112 of the Evidence Act . The Respondent's failure to produce any documentary evidence to support this assertion was fatal to its defence. 10. The Respondent's reliance on **Peter Kanithi Kimunya vs. Aden Guyo Haro [2014] eKLR** to argue that a police abstract is not proof of the occurrence of an accident is misplaced. While it is true that a police abstract alone is not conclusive proof of an accident, in the present case, the police abstract was supported by the Appellant's direct testimony as an eye witness and the physical evidence of damage confirmed by the assessor. The principle in Peter Kanithi Kimunya does not require that a police abstract be disregarded when it is corroborated by other credible evidence. 11. The Respondent's defence therefore collapsed under the weight of its own inconsistencies and lack of credible evidence. Having failed to rebut the Appellant's prima facie case, and having failed to prove that its vehicle was at the construction site at the material time, the Respondent must bear the consequences of this failure. The evidential burden, having shifted to the Respondent, was not discharged. **Whether the Appellant Proved the Respondent's Liability** 1. The Appellant contends that the learned Magistrate erred in finding that there was no proof showing that the Respondent was liable for the accident. I have carefully considered this issue. 2. The evidence established that the accident was a rear-end collision. The Appellant testified that she was slowing down due to traffic when KBS 604D rammed into her vehicle from behind. The assessor's report confirmed damage to the rear of the Appellant's vehicle. The police abstract indicated that KBS 604D was to blame for the accident. 3. In motor vehicle accident cases involving rear-end collisions, the principle of res ipsa loquitur (the thing speaks for itself) is often applicable. The maxim applies where the accident is of a kind that does not ordinarily happen unless someone was negligent, and the instrumentality causing the accident was within the exclusive control of the defendant. 4. In **Mwaka v Karua & another (Civil Case E261 of 2022) [2024] (eKLR)**, the Court held: “Since the deceased was a passenger, it is obvious that he had no role to play in driving of the motor vehicles which were involved in the accident. Therefore the principle of res ipsa loquitor applies in this case." 5. Similarly, in **Orioki v Kevian Kenya Limited**, the Court of Appeal held that: “Under Section 49 of the Traffic Act, a driver is required to maintain a safe distance to prevent accidents, especially in emergencies. The appellant failed to maintain such a distance, thereby hitting the respondent's vehicle from the rear." 6. The principle is clear: a driver who hits another vehicle from behind is prima facie negligent for failing to keep a safe distance. The burden then shifts to the defendant to provide a satisfactory explanation for the collision. In the present case, the Respondent failed to discharge this burden. The Respondent's explanation that the vehicle was at a construction site was unsupported by any credible evidence. The Respondent's witness was contradictory and evasive. 7. In **Highland Creamers & Food Ltd v Ngetich (Civil Appeal 040 of 2023) [2024](eKLR)**, this Court held: “The Respondent submitted that the Appellant failed to call a witness who would rebut his testimony." 8. In the present case, the converse applies. The Respondent failed to call any credible witness to rebut the Appellant's testimony. The only witness called by the Respondent gave contradictory evidence and failed to produce any documentary evidence to support the alibi defence. 9. I therefore find that the Appellant has proved the Respondent's liability for the accident. The Respondent's driver failed to keep a safe distance, rammed into the Appellant's vehicle from the rear, and fled the scene. The Respondent has failed to provide any credible explanation for the collision. **Whether the Learned Magistrate Erred in Failing to Consider the Appellant's Written Submissions** 1. The Appellant contends that the learned Magistrate erred in law by failing to give weight to, consider the Appellant's written submissions and authorities. The record of appeal shows that the Appellant's submissions were filed on 26th November 2024 . The Respondent, in its submissions, argues that the court is bound by the evidence adduced and that failure to adduce evidence cannot be solved by way of written submissions. 2. While it is trite law that submissions cannot take the place of evidence, as held in **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR**: “Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid... Submissions are generally parties' 'marketing language', each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all." 3. This principle applies where a party has failed to adduce evidence to prove their case. In the present case, the Appellant did adduce evidence. She testified in court, produced documents, and called a police officer as a witness. Her written submissions were merely an aid to the court in analyzing the evidence already on record. The learned Magistrate's failure to consider the Appellant's submissions, which were filed on the same day as the Respondent's submissions, was an omission but not fatal. Had he considered the submissions , it would have assisted the court in properly analyzing the issue before him. 4. I therefore find that the learned Magistrate erred in failing to consider the Appellant's written submissions, which were properly filed and which would have assisted the court in properly analyzing the evidence. **Whether the Learned Magistrate Erred in Awarding Costs to the Respondent** 1. The Appellant contends that the learned Magistrate erred in law in awarding costs of the suit and interest to the Respondent. The trial magistrate did not error in awarding the costs to the respondent as costs follow event and since the respondent won the case in the trial court, he was entitled to the costs. 2. Having found that the Appeal has succeeded , I now proceed to assess the damages to which she is entitled to . The Appellant pleaded and proved special damages in the sum of Kshs 203,278, broken down as follows: **Assessment of Damages** 1. Assessment fees – 4,700/= 2. Cost of repairs- 63,978/= 3. Re-inspection fees – 4,600/= 4. Car-hire charges – 25,000/= 5. Tracing fees- 5,000/= Total sum of special damages , 203,278/= 1. The Appellant produced documentary evidence in support of each item of special damages. The documents include invoices, ETR receipts, payment requisition vouchers, and reports from the assessor. I am satisfied that the special damages have been strictly proved. 2. In **Sanlam General Insurance Co. Ltd v M'Mbura (Civil Appeal E054 & E098 of 2024 (Consolidated)) [2025] (eKLR)**, this Court held: “In order to mitigate the loss, the Respondent in this case leased out another vehicle... The law on mitigation of damages must impose an upper limit for which such damages are recoverable considering the nature of duty to mitigate in the particular circumstances of the case." 3. In the present case, the Appellant's claim for car-hire is reasonable and supported by documentary evidence. The claim for tracing fees is also justified, given that the driver of the offending vehicle fled the scene and the Appellant had to incur costs to trace the owner of the vehicle. The repairs, assessment, and re-inspection costs are all supported by documentary evidence and are reasonable in the circumstances. 4. I therefore award the Appellant special damages in the sum of Ksh. 203,278. **Conclusion and Orders** 1. For the reasons set out above, I find that the appeal has merit and ought to be allowed. The Appellant proved her case on a balance of probabilities and is entitled to the reliefs sought. 2. Accordingly, I make the following orders: 3. The appeal is **ALLOWED**; The judgment and decree of the Small Claims Court at Murang'a (Hon. D.C Soy RM/Adjudicator) delivered on 27th November 2024 in Murang'a MCCC No. E151 of 2024 is hereby set aside; 4. Judgment is hereby entered for the Appellant against the Respondent in the following terms: 5. Liability is entered at 100% against the Respondent 6. The Appellant is awarded special damages of Ksh. 203,278/-. 7. The Appellant is awarded interest on the said sum at court rates from the date of filing the claim in the lower court until payment in full. 8. The Appellant is awarded costs of the suit in the lower court and costs of this Appeal. **DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 19TH DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angog’a/Velma