https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10027

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCA/E221/2025 WATU CREDIT AND KEVIN ONYANGO JUMA VS AL-HUSNAIN MOTORS LTD AND ROSE AWINO JUMA AND 1 OTHERS JUDGMENT ***(Being an Appeal from the Judgment/Decree of Hon. Lilian Kiniale delivered on 18th September in Nyando PMCC NO. E075 OF 2022*** # INTRODUCTION/ FACTS OF THE CASE 1. The Plaintiff, vide a Plaint dated 8th April 2024, instituted a suit against the Defendants seeking compensation arising from a road traffic accident that occurred on 27th February 2022. 2. The Plaintiff was lawfully on the far-left side of the road towards Awasi from Katitu when the Defendant’s Motor Vehicles registration number KCZ 548C and Motor cycle registration number KMFS 219V TVS Star were involved in a collusion and the rider hit the Plaintiff as a result of which the Plaintiff sustained serious injuries namely blunt chest injury with damage of the rib cage, at the right aspect/flank, with multiple lacerations; multiple soft tissue injuries involving the right upper limb, over the radio/ulna regions; experiences excruciating chest pains, with difficulty in breathing; painful sensations from the injured upper limb. 1. The Plaintiff sought judgment against the Defendants for special damages in a sum of Kshs. 3,500/=, general damages, and cost of suit. 2. The Defendant entered appearance and filed a defence dated 22nd April 2022 where he denied the averments in the Plaint and put the plaintiff to strict proof while attributing negligence on part of the Plaintiff and driver of the motor vehicle registration number KCZ 548C who was enjoined as a third party in the suit. 3. Initially, there were 3 Defendants, but the 1st Defendants case was withdrawn leaving the 2nd and 3rd Defendants who filed their joint statement of defence and later also enjoined a third party. The third party never entered appearance nor filed a defence. The defendants moved the court to enter interlocutory judgement against the third party which was done paving way for the matter to proceed for hearing. 4. The suit was heard in the Magistrates Court and Judgment delivered on 18th September 2025 where the court entered judgment for the Plaintiff as follows: ***"I have noted the nature of injuries sustained by the Plaintiff as well as the authorities quoted by the plaintiff noting that all injuries will be exactly the same. In the circumstances, I proceed to find that Kshs. 200,000/= is adequate to compensate the plaintiff for injuries sustained. For special damages a receipt of Kshs. 3000/= and Kshs 1,500/= was filed totaling to Kshs. 4500/= as well as an invoice of Kshs.550/= was produced and therefore awarded as prayed. In conclusion, I enter judgment for the Plaintiff as follows: -*** * 1. ***Liability 100% as against the defendants and 3rd parties jointly and severally.*** 2. ***General damages Kshs. 200,000/=*** 3. ***Special damages Kshs. 5050/=*** 4. ***Costs and interests be borne by the defendant."*** 5. Being dissatisfied with the judgment of the trial court, the 1st Defendant appealed vide a Memorandum of Appeal dated 16th October 2025, raising the following grounds: - * + 1. *That the learned trial magistrate misapprehended the evidence on record and therefore erred and misdirected herself in fact and in law finding that 1st Respondent had proved her case against the Appellants to required standards.* 2. *That the learned trial magistrate erred in law and in fact in finding the Appellant and the 2nd & 3rd Respondents fell short of the required standard of proof.* 3. *That the learned trial magistrate erred in law and in fact in finding the Appellant and the 2nd & 3rd Respondents equally liable for the occurrence of the accident whereas the evidence tendered by the Appellant proved that the 2nd and 3rd Respondents were fully liable for the occurrence of the accident* 4. *That the learned trial magistrate erred in law and in fact in finding that the Appellants had contributed to the occurrence of the accident whereas their motor cycle registration number KMFS 219V had been hit by 2nd and 3rd Respondents motor vehicle registration number KCZ 548C, which reversed into the road without giving way to the Appellants’ aforementioned motor cycle which had the right of way.* 5. *That the learned trial magistrate erred in law and in fact in finding the Appellant liable for the occurrence of the accident despite the entirety of the evidence proving that the 2nd and 3rd Respondents motor vehicle was the sole cause of the accident* 6. *That the learned trial magistrate erred in law and in fact in failing to properly analyze the testimonies and evidence presented by the witnesses, and therefore arrived at an erroneous determination on merit* 7. *That the learned trial magistrate erred in law by failing to consider the submissions made by the Appellants as to the issue of Liability and thus arrived at an erroneous determination on merit.* 1. The appeal was canvassed by way of written submissions. Before delving into the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in ***Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123***, to re-evaluate, re-assess and analyse the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when they testified. # SUBMISSIONS BY PARTIES ## Appellant’s Submissions * 1. The sole issue in contention by the Appellants is, who is to blame for the occurrence of the accident. The Appellants submitted that the 2nd and 3rd Respondents as owners and/or drivers of motor vehicle registration number KCZ 548C, were wholly liable for the accident. They urged this court, as a first appellate court, to re-evaluate the evidence on record and draw its own independent conclusions in accordance with the principles set out in ***Selle &*** ***Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123**, which affirm that an appellate court is duty-bound to reconsider and evaluate the evidence afresh. * 1. The Appellants submitted on the 1st Respondent’s evidence that their own testimony supported the Appellant’s case. They pointed out that in her witness statement and evidence in chief, the 1st Respondent stated that motor vehicle registration number KCZ 548C suddenly reversed onto the Katito–Awasi Road and collided with the Appellants' motorcycle, which was already travelling along the same road. Although she alleged that the motorcycle was being ridden at a high speed, she failed to produce any evidence in support of that allegation. 2. The Appellants further submitted that during cross-examination, the 1st Respondent confirmed that the motorcycle was travelling from Katito towards Awasi Market while the Probox was attempting to enter the main road by reversing. She admitted that the Probox did not wait for the motorcycle to pass before reversing, resulting in the collision and causing the motorcycle to fall. She also reiterated that the vehicle was reversing at the time of the accident. According to the Appellants, this evidence demonstrates that the motorcycle had the right of way and that the accident was solely occasioned by the Probox driver's actions. 3. The Appellants further submitted on the evidence of PW2 that the testimony of PW2, a police officer called by the 1st Respondent, further supported their case notwithstanding its inconsistencies. They noted that PW2 produced only a Police Abstract, which indicated that investigations were still pending and that no one had been blamed or charged in relation to the accident. 4. They further contended that during cross-examination, PW2 admitted that the Probox was reversing from a hardware beside the road when the accident occurred. Although he alleged that the motorcycle was overlapping, he failed to produce any evidence to support that assertion. He also admitted that he had not witnessed the accident, was not the investigating officer, and did not produce witness statements, the draft sketch map, or the Occurrence Book entry. The Appellants argued that while PW2's evidence was contradictory and unreliable, it nevertheless confirmed that the Probox reversed onto the road and collided with the motorcycle, which was already on the carriageway. 5. On their evidence, the Appellants submitted that their witness, DW1, Police Constable Leonard Cheruiyot, produced the Occurrence Book Extract (OB No. 23 of 27/02/2022), which had been prepared by the investigating officer. DW1 confirmed that the accident occurred along the Katito–Awasi Road and that motor vehicle KCZ 548C reversed abruptly and at high speed into the path of the approaching motorcycle, thereby causing the collision. According to the Appellants, this evidence corroborated the 1st Respondent's own testimony and established that the motorcycle was already lawfully using the road and therefore had the right of way. 6. Further, the appellants submitted on the aspect of causation that the totality of the evidence unequivocally demonstrated that the accident occurred when the 2nd and 3rd Respondents' motor vehicle abruptly reversed from a parking bay onto the main road and obstructed the path of the Appellants' motorcycle, which was already travelling on the Katito–Awasi Road. They contend that all the witnesses, including the 1st Respondent, consistently confirmed that the Probox reversed without ensuring that the road was clear, failed to give way to the approaching motorcycle, and thereby caused the collision. 7. Relying on the established principle that a vehicle joining a main road must yield to traffic already on that road, and the decision in ***Wenani v Ahmed & Another (Civil Appeal E03 of 2024) [2025] KEHC 4056 (KLR)***, the Appellants argued that the motorcycle had the right of way while the Probox, being the vehicle entering the roadway from a parking bay, bore the entire duty to ensure it was safe to join the road. They submitted that the driver of KCZ 548C failed to maintain a proper lookout and negligently reversed into the path of the motorcycle, making the 2nd and 3rd Respondents personally and vicariously liable for the accident. * 1. The Appellants therefore contended that the 1st Respondent failed to discharge the burden of proving any negligence on their part and that the subordinate court misapprehended the evidence by attributing liability to them. They consequently urged this court to set aside the finding on liability, dismiss the 1st Respondent's claim against the Appellants, find the 2nd and 3rd Respondents 100% liable for the accident, and award the costs of both the appeal and the proceedings before the trial court. ## 1st Respondent’s Submissions * 1. The Respondent framed their sole issue as whether the learned magistrate erred in law and fact in finding the defendants liable. 2. The 1st Respondent submitted that the appeal lacks merit and should be dismissed in its entirety, as the Appellate court’s role is limited to re-evaluating evidence only where the trial court is shown to have acted on no evidence, misapprehended the evidence, or applied wrong legal principles. Reliance was ## placed on Selle v Associated Motor Boat Co. Ltd [1968] EA 123 to emphasize that an appellate court will not interfere with findings of fact unless such exceptional circumstances are demonstrated, which the Appellants have failed to establish. * 1. The 1st Respondent further submitted that the trial court properly evaluated the evidence and correctly found the Appellants fully liable for the accident, as the 1st Respondent discharged the burden of proof on a balance of probabilities. The 1st Respondent maintained that her evidence as to how the accident occurred was consistent, direct, and uncontroverted, and was supported by documentary evidence including the police abstract, P3 form, and medical reports, which were not effectively challenged by the Appellants. 2. The 1st Respondent argued that the Appellants failed to rebut this evidence, as their defence was speculative, unsupported by investigation, and lacking in evidential basis, with even their own witness admitting to having no police file or investigative findings. It was further contended that the attempt to shift liability to a third party failed, as no evidence was adduced to support negligence on the part of that party, rendering the claim a mere pleading without proof. * 1. Placing reliance on **Njoroge v Gakere & Another [2025] KEHC 4048 (KLR),** the 1st Respondent submitted that liability cannot be established or apportioned on the basis of unproven allegations, and submissions cannot substitute evidence. The trial court was therefore correct in rejecting the Appellant’s theory of contributory negligence, as no evidential basis was laid. * 1. In parting short, the 1st Respondent urged the court to uphold the trial court’s finding on liability, dismiss the appeal, and award costs to the 1st Respondent, on the basis that no misdirection or error of law or fact had been demonstrated to warrant appellate interference. # ISSUES FOR DETERMINATION * 1. Whether the trial court properly evaluated and appreciated the evidence on record in arriving at its finding on liability 2. Whether the trial court erred in law and fact in apportioning liability against the Appellants 3. Who bears the costs of the suit? # ANALYSIS AND DETERMINATION ## Whether the trial court properly evaluated and appreciated the evidence on record in arriving at its finding on liability * 1. In determining whether the trial court properly evaluated the evidence on record, this court is guided by the well settled principle in ***Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123** where it was held that a first appellate court is duty bound to re-evaluate, re-assess and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. * 1. Applying the foregoing principle to the present appeal, this court has carefully re-examined the record of the trial court, the pleadings, the testimonies of PW1, PW2 and DW1, as well as the documentary evidence produced. The central complaint by the Appellants is that the trial court failed to properly analyse the evidence and thereby reached an erroneous conclusion on liability. * 1. From the evidence on record, the 1st Respondent testified that the accident occurred when motor vehicle registration number KCZ 548C reversed onto the roadway without ensuring that it was safe to do so, thereby colliding with the Appellants’ motorcycle which was already lawfully on the road. This version remained consistent even during cross-examination. 2. PW2, a police officer, produced the Police Abstract and confirmed that investigations were still pending and that no person had been charged. While PW2 was not the investigating officer and did not witness the accident, his evidence was nonetheless consistent with the occurrence of a collision involving a reversing motor vehicle. 3. DW1 similarly produced the Occurrence Book extract which indicated that the motor vehicle reversed into the roadway and caused the collision. The court notes that this evidence, rather than exonerating the Appellants, in fact supports the narrative that the accident occurred when the motor vehicle entered or reversed onto the main road without due care. 4. The trial court considered the competing versions and made a finding that liability attached to the Defendants. There is nothing on the record to demonstrate that the trial court ignored material evidence, misdirected itself on the law, or took into account extraneous matters. What the Appellants are essentially inviting this court to do is to substitute its own view of the evidence without demonstrating an error in principle by the trial court. 5. In the circumstances, this court finds no basis to interfere with the trial court’s evaluation of the evidence. The finding on liability was grounded on the evidence on record and was arrived at after a proper judicial analysis. ## Whether the trial court erred in law and fact in apportioning liability **against the Appellants** * 1. In addressing whether the trial court erred in apportioning liability against the Appellants, this court is guided by the established principle that in negligence claims, liability is only imposed where a duty of care, breach of that duty, and resultant damage are proved on a balance of probabilities. This position was reaffirmed in ***Kiema Mutuku v Kenya Cargo Handling Services Ltd [1991] 2 KLR 258,*** where the court held that allegations of negligence must be strictly proved and cannot be inferred in the absence of evidence. 2. The Appellants’ case is that the accident was solely caused by the 2nd and 3rd Respondents when the motor vehicle reversed into the roadway without keeping a proper lookout, thereby making them wholly liable for the accident. They further argue that the motorcycle had the right of way and that no contributory negligence was proved against them. 3. However, upon re-evaluation of the evidence, it is evident that the trial court was confronted with a scenario where the exact dynamics of the accident were largely based on testimonial accounts rather than independent reconstruction evidence. The consistent thread in the evidence, including that of the 1st Respondent and DW1, is that the motor vehicle emerged or reversed onto the road and a collision ensued. 4. The duty of a driver who is joining or re-entering a main carriageway is to ensure that the road is clear and that such entry is executed safely so as not to endanger other road users. In the absence of credible evidence demonstrating contributory negligence on the part of the Appellants, the trial court was entitled to draw the inference that the primary cause of the accident lay with the motor -vehicle driver. 5. The allegation that the motorcycle was speeding or otherwise negligent was not substantiated by any independent or corroborated evidence. Similarly, the attempt to attribute liability to the third party remained unproven as no evidence of negligence was tendered against that party. 6. In the premises, this court finds that the trial court did not err in apportioning liability against the Appellants. The finding was supported by the evidence on record and is consistent with the applicable legal principles on negligence and causation. ## Who bears the cost of the suit * 1. On the issue of costs, the general rule is that costs follow the event as provided under Section 27 of the Civil Procedure Act. The discretion of the court in awarding costs must, however, be exercised judicially and in accordance with settled principles. 2. In the case of ***Supermarine Handling Services Ltd v Kenya Revenue Authority* [2000] 2 EA 55** the court held that costs are awarded to compensate a successful party for the trouble taken in prosecuting or defending a suit, and unless there is good reason, the successful party should not be deprived of such costs. * 1. In the present appeal, having found that the Appellants have failed to demonstrate any basis for interference with the trial court’s findings on liability, the appeal is without merit. Consequently, there is no reason to disturb the order of costs made by the trial court. 2. Accordingly, the Respondent is entitled to the costs of this appeal, as the successful party. # DISPOSITION * 1. Having carefully considered the pleadings, the record of appeal, the rival submissions by counsels, the applicable law and authorities, and the issues for determination, this court now proceeds to render its determination on this appeal as follows: 1. The Appeal is hereby dismissed in its entirety. 2. The Judgment and Decree of the Chief Magistrate’s Court in Nyando PMCC No. E075 of 2022 delivered on 18th September 2025, are hereby upheld in their entirety. 3. The Appellants shall bear the costs of this Appeal. 4. The costs of the trial court remain as awarded by the trial court 5. Interest on the costs of this Appeal shall accrue at court rates from the date of taxation until payment in full. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Civil Date: 2026-07-08 08:57:06