https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10951

Odhiambo v Oyugi (Civil Appeal E235 of 2024) [2026] KEHC 10951 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10951 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E235 of 2024 LM Wachira, J July 17, 2026 Between Wilson Nyikal Odhiambo Appellant and Kennedy Ouma Oyugi Respondent (Being an Appeal the Judgement and Decree of Hon. B. Ochieng (SPM) delivered on 23rd October 2024 in Maseno PMCC NO. E083 of 2023) Judgment Introduction 1.The Appeal originates from the Judgment of Hon. B. Ochieng in Maseno PMCC No. E083 of 2023. The suit involved a road traffic accident which occurred on 8/6/2023 involving the parties herein whereby the Appellant sustained injuries. The Appellant instituted a claim against the Respondent and the trial court entered judgement on 23/10/2024 against the Respondent as follows:-a)Liability at the ratio of 50%:50%b)General Damages of Kshs.350,000/-c)Costs and interest at court rates. 2.The Appellant being aggrieved with the judgment appealed against it on the following grounds:-a.The Learned Trial Magistrate erred in fact and in law when she apportioned liability in the ratio of 50%:50% between the Appellant and the Respondent when the evidence on record could not support such a finding.b.The Learned Trial Magistrate erred in law when she failed in her duty as the trial court to evaluate the evidence, consider the pleadings and to make her own findings in her judgment from the evidence led at the trial and to note the material discrepancies and departure in the pleadings filed by the Respondent and in the evidence which the Respondent led at the trial.c.The Learned Trial Magistrate erred in law and in fact in apportioning liability equally between the Appellant and the Respondent despite finding and holding that it behooved the Respondent to take extra care before turning while noting that the Appellant was on pedestrian lane on the extreme opposite side of the road.d.The Learned trial Magistrate erred in fact and in law when she apportioned liability for the occurrence of the said accident on half ratio basis between the Appellant and Respondent in disregard to the evidence on record in which the Respondent admitted to have hit the Appellant on the Appellant's lane.” 3.Based on the foregoing grounds, the Appellant prayed to have the appeal allowed with costs and an order to set aside the judgement of the subordinate court. The Appellant further prayed for a reassessment and reappraisal of the evidence and for an independent conclusion on the issue of liability. Trial Court Evidence 4.The appellant testified that he was riding motor cycle registration number KMFZ 808W from Wangarot to Akado at a moderate speed of about 20-30Km/h since it was dark. That when he reached Angoga area, an oncoming motor vehicle registration number KDG 708D being driven with full lights on suddenly turned right without indicating and hit the Appellant on his right lane. 5.The investigating officer testified that an accident occurred involving motor cycle registration number KMFZ 808W and motor vehicle registration number KDG 708D along Akado-Wangarot road. That from is investigations, the vehicle was from Akado to Wangarot while the rider was from Wangarot to Akado direction and that at the scene, the driver of the motor vehicle turned right to enter his homestead and collided with the rider. He blamed the driver of the motor vehicle for causing the accident stating that the driver misjudged the distance of the motor cycle. 6.He further testified that the skid marks on the road were from the right to the left. That the same were of the motor cycle showing that the rider tied to avoid the motor vehicle. 7.The Respondent’s in his witness statement adopted as evidence stated that he was driving motor vehicle registration number KDG 708D along Angoga market heading to his residence and on reaching near his homestead, he indicated to turn right. Other motorists gave way and he turned right. Suddenly he was hit by an oncoming motor cycle which was approaching from opposite direction using pedestrian path. He blamed the rider for abruptly emerging onto his lane. Appellant’s Submissions. 8.The Appellant filed submissions dated 13/3/2026. He submitted that the appeal only challenged the trial court’s finding on liability and that the four grounds of appeal could be condensed into two issues: whether the trial magistrate erred in apportioning liability equally at 50:50, and whether the trial court properly evaluated the evidence on record. 9.The Appellant contended that the evidence of the rider (PW1), the investigating officer (PW3) and the Respondent established that the accident occurred when the Respondent, while turning right into his homestead, failed to ensure that the road was clear and collided with the Appellant who was riding on his proper lane. It was submitted that the investigating officer blamed the Respondent for misjudging the distance of the motorcycle and that the skid marks demonstrated the Appellant had attempted to swerve to avoid the collision. The Respondent also admitted in cross-examination that it was his duty to ensure there was no oncoming traffic before turning. 10.It was further submitted that the Respondent's evidence was inconsistent with both his pleadings and witness statement. Whereas he had initially alleged that the Appellant emerged from the pedestrian path onto his lane, he later admitted during trial that the collision occurred on the Appellant's side of the road. The additional allegation that the motorcycle had no headlights was also said to be an afterthought since it had not been pleaded. The Appellant argued that parties are bound by their pleadings and relied on Aoro v Were (Civil Appeal No. E024 of 2022) in support of that proposition. 11.The Appellant further argued that the absence of a driving license could not by itself establish negligence or contribute to liability unless a causal connection with the accident was proved. It was submitted that the trial court itself acknowledged that the Respondent ought to have exercised greater care before turning, yet still apportioned liability equally without justification. 12.Accordingly, the Appellant maintained that the evidence established the Respondent was wholly to blame for the accident and urged the Court to interfere with the trial court's finding, set aside the apportionment of liability, and hold the Respondent 100% liable. Respondent’s Submissions 13.In opposition to the appeal, the Respondent filed submissions dated 10/4/2026. The Respondent argued that the Appellant failed to prove negligence on the Respondent's part. It was submitted that the Appellant admitted he was still learning to ride, did not possess a driving license and was therefore inexperienced and unlawfully using the road. The Respondent contended that the absence of a driving license justified the inference that the Appellant lacked the requisite riding skills, relying on Isaac Onyango Okumu v James Ayere & Another [2019] eKLR. 14.It was further submitted that the investigating officer's evidence did not conclusively establish liability. The Respondent argued that although the officer blamed the Respondent, he arrived at the scene after the motorcycle had been removed, did not prepare or produce a sketch map or investigation report, and relied on a police abstract which indicated that investigations were still pending. Consequently, it was submitted that the police abstract could not form the basis of a finding on liability. 15.The Respondent maintained that the evidence showed he had indicated before turning right after being given way by an oncoming vehicle, and that the Appellant, while riding without lights and on the pedestrian footpath, dangerously attempted to overtake before colliding with the Respondent's vehicle. It was submitted that the skid marks demonstrated that the Appellant was travelling at excessive speed and unsuccessfully attempted to brake. The removal of the motorcycle from the scene before police arrival was said to have been intended to conceal the Appellant's culpability. 16.The Respondent therefore argued that the Appellant failed to establish negligence on the Respondent's part and that the trial court ought to have dismissed the suit altogether. Reliance was placed on Dete v Mirieri [2025] KEHC 3337 (KLR) for the proposition that where negligence is not proved, the suit should be dismissed rather than liability apportioned. 17.In the alternative, the Respondent submitted that if the Court was unable to determine which party was solely to blame, the trial court correctly apportioned liability equally in light of the conflicting evidence. 18.Accordingly, the Respondent urged the Court to dismiss the appeal with costs and either uphold the trial court's apportionment of liability or, if it interfered with the judgment, substitute it with a finding that the Appellant had failed to prove negligence against the Respondent and dismiss the suit in its entirety. Analysis and Determination 19.This is being a first appeal, I am alive to the duty of the court as stated in by the Court of Appeal in Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of 2004, where it was held that: -“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it neither saw nor heard the witnesses. 20.The Court of Appeal echoed the same principles in Peters v Sunday Post Ltd [1958] EA 424, stating that: “An appellate court is not bound to follow the trial court’s findings of fact if it appears that the court failed to take into account particular circumstances or probabilities, or if the decision is plainly wrong.” 21.I have considered the evidence adduced at the trial court, record of appeal and supplementary record of appeal dated 11/3/2025 and 4/7/2025 respectively together with the submissions as filed by the parties. I have also considered the grounds of Appeal, which can be condensed to a single issue, being whether the learned Magistrate erred by apportioning liability in the ratio of 50%:50% between the parties. 22.The evidence on record is that the Appellant was riding on the left side of the road towards Wangarot direction when an oncoming motor vehicle that was being driven by the Respondent turned to his right side and knocked the Appellant on the pedestrian path. The investigation officer testimony that the skid marks showed that that the rider tried to swerve and moved to the extreme left. During the trial, the Respondent admitted in his evidence that it was his duty to ascertain that the road was clear before he turned. In his statement, he indicated that other motorists gave way but he was knocked by the rider. 23.The rules of the road are that it was the Respondent who was to give way and not the oncoming vehicles. It was the Respondents duty to wait until the road was clear for him to turn. It appears that the Respondent did not ensure that the road was clear, before he made the turn. He was negligent by failing to keep proper lookout to the Appellant and other road users. 24.In a bid to demonstrate negligence by the Appellant, the Respondent told court that he was knocked by third party motor cycle which was coming from the opposite direction using pedestrian path. That the motor cycle abruptly emerged into his lane. From the trial court record, the accident occurred on the lane of the Appellant and the Respondent confirmed this to the court during cross examination. 25.I have considered this evidence and I am also alive to the general rules on Appeals where the Appellate court should not interfere with findings of fact unless in exceptional circumstances as held by the court in Khambi and another v Mahithi and another [1968] EA 70, in the following words:-“It is well settled that where a trial judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate Court will not consider itself free to substitute its own apportionment for that made by the trial judge.” 26.From the evidence on record, clearly the Appellant was on his lane and had a right of way. The Respondent was turning to join a road and therefore under the traffic Rules, he ought not to have turned until it was clear and safe to turn. The Respondent turned without due regard to the other motorists who had the right of way and that is when he collided with the Appellant. In those circumstances, the Appellant was not to blame in any way. 27.In Aoro v. Were (Civil Appeal No. E024 of 2022) the court in dealing with almost a similar situation held thus:-“I find that there was absolutely no factual evidence that the Respondent and or her rider were to blame in any way, for the accident, considering the contradictory testimony of DW3 as to how the accident occurred, which contradictions are material and raise doubts as to its veracity and truth. 28.The Respondent in an attempt to demonstrate negligence on the part of the Appellant stated that the Appellant had no driving license and was a new rider. The failure to have a driving license and being a new rider is not evidence of negligence. For the court to apportion liability, there needed to be evidence demonstrating negligence on the part of the Appellant. The Respondent did not avail that evidence. 29.The trial court in apportionment of liability stated that the Appellant, just as the Respondent owed a duty of care, to be careful as they used the road. It is correct that every road user owes a duty of care to other road users. But liability does not attach because of the duty of care. Liability attaches because there is a breach of that duty. I therefore find that the apportionment of liability at the ratio of 50:50 by the trial court was not justified and not supported by evidence of breach of duty of care. 30.And in making this finding I am guided by the Court of Appeal decision in Peters v Sunday Post Ltd [1958] EA 424, where it stated that: “An appellate court is not bound to follow the trial court’s findings of fact if it appears that the court failed to take into account particular circumstances or probabilities, or if the decision is plainly wrong.” 31.For those reasons, I find that the Appeal herein is merited. I will allow the same and set aside the finding of the trial court on liability. In its place, I will enter judgment for the Appellant at 100% liability against the Respondent. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JULY, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the Presence of:Leadys– Court assistantMiss Ojwa ……………for the Appellant.Mr. Kamau……………for the Respondent