' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E048 OF 2023
BENEAH BARASA WAKHUNGU………………………………APPELLANT
VERSUS
JACOB MULONGO WAFULA………………………….…..RESPONDENT
(Being an appeal from the judgment and order of the Principal Magistrate Court, Senior Principal Magistrate’s Courts at Webuye in Civil Case No. 85 of 2020 delivered by Hon. P.Y Kulecho (PM) on 28th April 2023.)
JUDGMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on liability. The Appellant seeks that the appeal be allowed and judgment on liability of the lower Court be set aside in its entirety, the costs of the appeal and of the Court below.
2. By a Plaint dated 7th August 2020, filed in Bungoma Chief Magistrate’s Court No. 85 of 2020, the Respondent herein (Plaintiff in the trial Court) sued the Appellant herein (Defendant in the trial Court) for tortious negligence and craved for general damages for pain and suffering and loss of amenities, special damages of Kshs 30,990/=, costs of the suit, and interest for severe bodily injuries sustained out of a road accident that occurred on 6th July 2020, along Webuye-Kitale road at around Misikhu area.
3. The Respondent claimed that he was a lawfully riding a motor cycle registration number KMEB 721 H along Webuye-Kitale road when motor vehicle registration number KCB 502 C, which was driven by the Appellant himself, his servant, agent or driver negligently, carelessly and recklessly causing the same to knock him aboard the motor cycle causing him to sustain serious injuries.
4. The Appellant in his response denied the particulars of negligence attributed to him and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent and urged the lower Court to dismiss the suit.
5. During the hearing, the Respondent called three witnesses, while the Appellant called one witness.
6. After hearing and an in-depth analysis of the evidence, the trial Court found both the parties liable for the said accident and proceeded to apportion liability 60:40 in favour of the Respondent as against the Appellant. The trial Court then made the following awards:-
i. General damages
pain and suffering and loss of amenities Kshs. 700, 000/=
ii. Special damages Kshs. 30,990 /=
Less 40% contribution Kshs. 292,396/=
Total Kshs. 438,594/=
iii. Plus, costs
The Appeal
7. The Appellant was aggrieved by the decision of the trial court on liability and thus lodged a memorandum of appeal dated 29th May 2021, which is based on Twelve (12) grounds of appeal and craved that the appeal be allowed; an order to issue dismissing civil suit 85 of 2020; costs of the appeal be awarded to the Appellant.
8. The Court directed that this Appeal be canvassed by way of written submissions. Both parties complied; the Appellant’s submissions are dated 28th May 2024, while the Respondent filed his submissions dated 6th May 2025, urging this Court to find the Appellant 100% liable, although he had not cross appealed.
Analysis and Determination
9. This being a first appeal, this Court is under a duty to re-evaluate and re analyze the evidence and make its own conclusions. It must, however, take cognizance of the fact that unlike the trial Court, it had no advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424).
10. I have re-scrutinized, re-analyzed, re- evaluated the record of the lower Court and I have also considered the rival submissions filed herein by the parties and the issue that emerge for determination is who is to blame for causation of the accident.
11. The burden of proof as per Section 107 (1), 109 and 112 of the Evidence Act, Cap 80 Laws of Kenya is outlined as;
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
12. This appeal simply concerns a dispute over who was to blame for the accident. The scope and extent of the fundamental legal principles on this subject are settled. In the cases of Nandwa v Kenya Kazi Ltd [1988] KLR 488 and Regina Wangechi v Eldoret Express Co. Ltd [2008] eKLR the Courts on this issue held that:
“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of the trial there is proved a set of facts which raises a prima facie case inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides same answer adequate to displace that inference.”
13. Taking into account the above principles, I will proceed to examine the evidence presented before the learned trial magistrate. From the record, it is undisputed that an accident occurred involving a motor cycle registration number KMEB 721 H and motor vehicle registration number KCB 502 C. The motor vehicle belonged to the Appellant herein and the Appellant was riding the motorcycle.
14. During the trial, the Respondent blamed the Appellant for the accident that occurred on 6th July 2020 and while testifying as PW1 he told the Court that on 6th July 2020, he was riding a motor cycle heading towards Misikhu area from Webuye and on approaching Elgon Villa Hotel he noticed an on-coming motor vehicle turning to it’s right in a bid to take the diversion towards the said hotel. He told the Court that since he had the right of way, he flushed the lights to alert the driver of the said motor vehicle driver, the Appellant, who defied him and kept driving towards him. He told the Court that the Appellant’s actions led to his motor vehicle ramming onto the Respondent’s motor cycle and this resulted in him falling into a tunnel and sustaining severe injuries.
15. The Appellant, on the other hand, testifying as DW1, told the Court that on the date of the incident he was driving along Misikhu-Webuye road and on approaching the Elgon Villa Hotel Area, he indicated to signal the oncoming motorists that he was intending to turn right in order to take the diversion towards the hotel when two riders heading in the opposite direction stopped to give way and as he was turning another rider emerged from behind the two stationer riders and swerved in, in a bid to overtake the stationery riders and in the process knocked his motor vehicle’s head lamp. He blamed the motor cycle rider for the accident. The Appellant’s witness, DW2, Joel Kagonyi Mwangi, testified that on the date of the incident he was riding along Webuye-Kitale road heading towards the Kitale direction and on approaching the Elgon Villa Hotel area in Misikhu he saw DW1’s motor vehicle heading in the opposite direction indicating that he intended to turn to the right and he flashed his lights signaling him to proceed. He told the Court that a fellow rider also stopped to give DW1 way but the other rider who had also stopped noticed that he was too close to the car that was turning and he quickly turned to his left side as if he was headed towards the hotel off the road then swerved back to the right, knocking the right side of the motor vehicle. He told the Court that as a result of the manouvers, the rider fell into a culvert by the road side.
16. After analyzing the evidence of the parties, the honourable magistrate found both parties to blame for the accident and proceeded to apportion liability at 60:40 in favour of the Respondent. The trial Court in its judgment held that;
“Had the defendant driver been exercising due caution while on the road, in particular, had he been keen he would have been able to see the rider who was on his lawful lane right ahead of him. To say he indicated that he was about to turn right and slowed down really is of no value to the defence case in the face of abundant proof from the plaintiff that he was knocked while on his lane. A motorist Joining a feeder road from the main road and vice versa owes duty of care to those with right of way and is under obligation to ascertain that the road s/he is about to join is clear before they may venture there onto. A motorist changing lanes owes other road users, especially those with right of way a duty of care. To join a feeder road without ascertaining it is safe to do so first is in itself proof of negligence on the part of the defendant driver
Being that both the rider and the driver were on the highway and the point of impact was the front part of the car, whilst the driver was joining a feeder road it is clear that the driver must have been speeding, had he been at modest speed he would have seen the rider and slowed down just a bit to let the rider pass given that it takes a very short time for one to cross such a narrow access road.
The court, given the circumstances of the case finds that the plaintiff has established on a balance of probability that the defendant driver was to blame for the accident. But in recognition of the fact that the plaintiff did not hold a valid rider''s licence the court finds that he must have contributed to the said accident as he may not have known that even though he had the right of way he owed himself a duty of care and thus he was under obligation to take all necessary steps towards averting the accident, like when he noticed that the defendant was intent on turning with no regard to those with right of way he should have either slowed down or stopped to let the defendant turn, join the feeder road. Given the peculiar circumstances of this case the Court finds that the plaintiff contributed to the occurrence of the accident and doing the best it can, apportions liability at 60:40 in favour of the plaintiff.”
17. Both parties in their testimonies admitted that indeed the alleged accident did occur. The Appellant testified that there was an accident and that the Respondent sustained injuries as a result of the same. This was further corroborated by the Police abstract confirming that the accident did occur and was reported. It is therefore not in dispute that an accident occurred, and the identity of the victim and that of the driver of the motor vehicle are known. Thus, the issue of who caused the accident is what remains to be determined.
18. Within this case there are two possible scenarios of how the accident occurred. Both the Appellant and the Respondent have their version of what transpired. There was no evidence of the investigating officer tendered and the police abstract, which would have shed light on what transpired on that day, did not provide much details. In the case of Salmin Mbarak Awadhi v Emma Nthoki Mutwota (2017) eKLR the Court apportioned liability equally when it was faced with two versions of how the accident occurred.
19. Yet, in the case of Stephen Obure Onkanga v Njuca Consolidated Limited (2013) eKLR the Court of Appeal when faced with similar situation held that both the Appellant and Respondent be held equally liable.
20. Consequently, I find and hold that given the peculiar circumstances of the instant case, the trial magistrate’s ought to have apportioned liability equally as follows: 50% against each party.
21. The upshot of the above is that this appeal on liability succeeds and therefor affects the trial Court’s holding on quantum as follows:
i. General damages
pain and suffering and loss of amenities Kshs. 700, 000/=
ii. Special damages Kshs. 30,990 /=
Less 50% contribution Kshs. 365,495/=
Total Kshs.365,495/=
iii. Plus, costs
22. Each party shall bear their own costs in this appeal.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
MR. LUCHIVYA FOR APPELLANT
N/A FOR RESPONDENT
PETER MACHONI ………COURT ASSISTANT
'
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E048 OF 2023
BENEAH BARASA WAKHUNGU………………………………APPELLANT
VERSUS
JACOB MULONGO WAFULA………………………….…..RESPONDENT
(Being an appeal from the judgment and order of the Principal Magistrate Court, Senior Principal Magistrate’s Courts at Webuye in Civil Case No. 85 of 2020 delivered by Hon. P.Y Kulecho (PM) on 28th April 2023.)
JUDGMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on liability. The Appellant seeks that the appeal be allowed and judgment on liability of the lower Court be set aside in its entirety, the costs of the appeal and of the Court below.
2. By a Plaint dated 7th August 2020, filed in Bungoma Chief Magistrate’s Court No. 85 of 2020, the Respondent herein (Plaintiff in the trial Court) sued the Appellant herein (Defendant in the trial Court) for tortious negligence and craved for general damages for pain and suffering and loss of amenities, special damages of Kshs 30,990/=, costs of the suit, and interest for severe bodily injuries sustained out of a road accident that occurred on 6th July 2020, along Webuye-Kitale road at around Misikhu area.
3. The Respondent claimed that he was a lawfully riding a motor cycle registration number KMEB 721 H along Webuye-Kitale road when motor vehicle registration number KCB 502 C, which was driven by the Appellant himself, his servant, agent or driver negligently, carelessly and recklessly causing the same to knock him aboard the motor cycle causing him to sustain serious injuries.
4. The Appellant in his response denied the particulars of negligence attributed to him and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent and urged the lower Court to dismiss the suit.
5. During the hearing, the Respondent called three witnesses, while the Appellant called one witness.
6. After hearing and an in-depth analysis of the evidence, the trial Court found both the parties liable for the said accident and proceeded to apportion liability 60:40 in favour of the Respondent as against the Appellant. The trial Court then made the following awards:-
i. General damages
pain and suffering and loss of amenities Kshs. 700, 000/=
ii. Special damages Kshs. 30,990 /=
Less 40% contribution Kshs. 292,396/=
Total Kshs. 438,594/=
iii. Plus, costs
The Appeal
7. The Appellant was aggrieved by the decision of the trial court on liability and thus lodged a memorandum of appeal dated 29th May 2021, which is based on Twelve (12) grounds of appeal and craved that the appeal be allowed; an order to issue dismissing civil suit 85 of 2020; costs of the appeal be awarded to the Appellant.
8. The Court directed that this Appeal be canvassed by way of written submissions. Both parties complied; the Appellant’s submissions are dated 28th May 2024, while the Respondent filed his submissions dated 6th May 2025, urging this Court to find the Appellant 100% liable, although he had not cross appealed.
Analysis and Determination
9. This being a first appeal, this Court is under a duty to re-evaluate and re analyze the evidence and make its own conclusions. It must, however, take cognizance of the fact that unlike the trial Court, it had no advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424).
10. I have re-scrutinized, re-analyzed, re- evaluated the record of the lower Court and I have also considered the rival submissions filed herein by the parties and the issue that emerge for determination is who is to blame for causation of the accident.
11. The burden of proof as per Section 107 (1), 109 and 112 of the Evidence Act, Cap 80 Laws of Kenya is outlined as;
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
12. This appeal simply concerns a dispute over who was to blame for the accident. The scope and extent of the fundamental legal principles on this subject are settled. In the cases of Nandwa v Kenya Kazi Ltd [1988] KLR 488 and Regina Wangechi v Eldoret Express Co. Ltd [2008] eKLR the Courts on this issue held that:
“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of the trial there is proved a set of facts which raises a prima facie case inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides same answer adequate to displace that inference.”
13. Taking into account the above principles, I will proceed to examine the evidence presented before the learned trial magistrate. From the record, it is undisputed that an accident occurred involving a motor cycle registration number KMEB 721 H and motor vehicle registration number KCB 502 C. The motor vehicle belonged to the Appellant herein and the Appellant was riding the motorcycle.
14. During the trial, the Respondent blamed the Appellant for the accident that occurred on 6th July 2020 and while testifying as PW1 he told the Court that on 6th July 2020, he was riding a motor cycle heading towards Misikhu area from Webuye and on approaching Elgon Villa Hotel he noticed an on-coming motor vehicle turning to it’s right in a bid to take the diversion towards the said hotel. He told the Court that since he had the right of way, he flushed the lights to alert the driver of the said motor vehicle driver, the Appellant, who defied him and kept driving towards him. He told the Court that the Appellant’s actions led to his motor vehicle ramming onto the Respondent’s motor cycle and this resulted in him falling into a tunnel and sustaining severe injuries.
15. The Appellant, on the other hand, testifying as DW1, told the Court that on the date of the incident he was driving along Misikhu-Webuye road and on approaching the Elgon Villa Hotel Area, he indicated to signal the oncoming motorists that he was intending to turn right in order to take the diversion towards the hotel when two riders heading in the opposite direction stopped to give way and as he was turning another rider emerged from behind the two stationer riders and swerved in, in a bid to overtake the stationery riders and in the process knocked his motor vehicle’s head lamp. He blamed the motor cycle rider for the accident. The Appellant’s witness, DW2, Joel Kagonyi Mwangi, testified that on the date of the incident he was riding along Webuye-Kitale road heading towards the Kitale direction and on approaching the Elgon Villa Hotel area in Misikhu he saw DW1’s motor vehicle heading in the opposite direction indicating that he intended to turn to the right and he flashed his lights signaling him to proceed. He told the Court that a fellow rider also stopped to give DW1 way but the other rider who had also stopped noticed that he was too close to the car that was turning and he quickly turned to his left side as if he was headed towards the hotel off the road then swerved back to the right, knocking the right side of the motor vehicle. He told the Court that as a result of the manouvers, the rider fell into a culvert by the road side.
16. After analyzing the evidence of the parties, the honourable magistrate found both parties to blame for the accident and proceeded to apportion liability at 60:40 in favour of the Respondent. The trial Court in its judgment held that;
“Had the defendant driver been exercising due caution while on the road, in particular, had he been keen he would have been able to see the rider who was on his lawful lane right ahead of him. To say he indicated that he was about to turn right and slowed down really is of no value to the defence case in the face of abundant proof from the plaintiff that he was knocked while on his lane. A motorist Joining a feeder road from the main road and vice versa owes duty of care to those with right of way and is under obligation to ascertain that the road s/he is about to join is clear before they may venture there onto. A motorist changing lanes owes other road users, especially those with right of way a duty of care. To join a feeder road without ascertaining it is safe to do so first is in itself proof of negligence on the part of the defendant driver
Being that both the rider and the driver were on the highway and the point of impact was the front part of the car, whilst the driver was joining a feeder road it is clear that the driver must have been speeding, had he been at modest speed he would have seen the rider and slowed down just a bit to let the rider pass given that it takes a very short time for one to cross such a narrow access road.
The court, given the circumstances of the case finds that the plaintiff has established on a balance of probability that the defendant driver was to blame for the accident. But in recognition of the fact that the plaintiff did not hold a valid rider''s licence the court finds that he must have contributed to the said accident as he may not have known that even though he had the right of way he owed himself a duty of care and thus he was under obligation to take all necessary steps towards averting the accident, like when he noticed that the defendant was intent on turning with no regard to those with right of way he should have either slowed down or stopped to let the defendant turn, join the feeder road. Given the peculiar circumstances of this case the Court finds that the plaintiff contributed to the occurrence of the accident and doing the best it can, apportions liability at 60:40 in favour of the plaintiff.”
17. Both parties in their testimonies admitted that indeed the alleged accident did occur. The Appellant testified that there was an accident and that the Respondent sustained injuries as a result of the same. This was further corroborated by the Police abstract confirming that the accident did occur and was reported. It is therefore not in dispute that an accident occurred, and the identity of the victim and that of the driver of the motor vehicle are known. Thus, the issue of who caused the accident is what remains to be determined.
18. Within this case there are two possible scenarios of how the accident occurred. Both the Appellant and the Respondent have their version of what transpired. There was no evidence of the investigating officer tendered and the police abstract, which would have shed light on what transpired on that day, did not provide much details. In the case of Salmin Mbarak Awadhi v Emma Nthoki Mutwota (2017) eKLR the Court apportioned liability equally when it was faced with two versions of how the accident occurred.
19. Yet, in the case of Stephen Obure Onkanga v Njuca Consolidated Limited (2013) eKLR the Court of Appeal when faced with similar situation held that both the Appellant and Respondent be held equally liable.
20. Consequently, I find and hold that given the peculiar circumstances of the instant case, the trial magistrate’s ought to have apportioned liability equally as follows: 50% against each party.
21. The upshot of the above is that this appeal on liability succeeds and therefor affects the trial Court’s holding on quantum as follows:
i. General damages
pain and suffering and loss of amenities Kshs. 700, 000/=
ii. Special damages Kshs. 30,990 /=
Less 50% contribution Kshs. 365,495/=
Total Kshs.365,495/=
iii. Plus, costs
22. Each party shall bear their own costs in this appeal.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
MR. LUCHIVYA FOR APPELLANT
N/A FOR RESPONDENT
PETER MACHONI ………COURT ASSISTANT
'