(Being an appeal from the Judgment and Decree of Hon. Justus M. Kituku, Senior Principal Magistrate, delivered on 17th September 2025 in Machakos CMCC No. 421 of 2018)
A. BACKGROUND
1. This appeal arises from the judgment of Hon. Justus M. Kituku, Senior Principal Magistrate, delivered on 17th September 2025 in Machakos CMCC No. 421 of 2018.
2. The Appellant, Benson Githinji Njeru, filed the suit against his former employer, Coast Bus (Mombasa) Limited, seeking general damages, special damages of Kshs.253,012/= costs and interest arising from injuries sustained in a road traffic accident on 11th February 2017.
3. The Appellant’s case was that he was employed by the Respondent as a long-distance bus driver. On the material date, he was assigned motor vehicle registration number KBK 802J for a scheduled journey. His case, as pleaded and stated in his written witness statement, was that the vehicle had not been serviced for some time and had a defective braking system. He claimed that he notified his supervisor about the defect, but the supervisor directed him to proceed because passengers had already booked and no alternative vehicle was available.
4. The Appellant alleged that the defective braking system caused or materially contributed to the accident in which he sustained a fracture of the right tibial plateau. A medical report prepared by Dr. Cyprianus Okoth Okere assessed permanent incapacity at 20%. A second medical report produced by consent on behalf of the Respondent assessed permanent incapacity at 8%.
5. The Respondent denied negligence, breach of statutory duty and liability for the accident. It pleaded that the Appellant was required to prove the alleged mechanical defect and the causal connection between that defect and the accident.
6. At the trial, the Appellant was the only witness. He adopted his witness statement and documents. During cross-examination, however, he stated that he was not aware that the vehicle had braking problems before commencing the journey. He also stated that he did not inspect the vehicle before taking possession of it. In re-examination, he repeated that he was not aware that the vehicle had a braking problem.
7. The Appellant produced a police abstract showing that the accident had been reported and that investigations were pending. No investigating officer, eyewitness, mechanic, motor-vehicle inspector or the supervisor allegedly notified about the braking defect testified. No pre-accident service record, defect report, inspection report, job card or post-accident mechanical inspection report was produced.
8. The Respondent closed its case without calling a witness.
9. The learned trial magistrate found that the accident and the Appellant’s injuries had been proved. He nevertheless held that the Appellant had failed to prove that the accident was caused by any negligence or breach of duty attributable to the Respondent. The suit was accordingly dismissed with costs.
10. For completeness, the learned magistrate stated that, had liability been proved, he would have awarded the Appellant Kshs.500,000/= as general damages and the special damages proved.
11. Aggrieved by the whole judgment, the Appellant lodged a Memorandum of Appeal dated 9th October 2025.
B. GROUNDS OF APPEAL
12. The grounds of appeal, reproduced verbatim, are as follows:
1. The Learned Magistrate erred in law and in fact in dismissing the Appellant’s suit despite finding that the accident indeed occurred and that the evidence of the Appellant remained uncontroverted.
2. The Learned Magistrate erred in law and in fact by holding that the Appellant failed to prove negligence and/or breach of statutory duty against the Respondent, whereas there was sufficient and credible evidence showing that the Appellant was assigned to drive an unroadworthy vehicle with known mechanical defects.
3. The Learned Magistrate erred in law and in fact by failing to appreciate that the Respondent, as the employer, owed a common law and statutory duty of care to provide a safe system of work and a roadworthy motor vehicle to the Appellant, which duty was breached.
4. The Learned Magistrate misdirected himself in disregarding the Appellant’s uncontroverted testimony on the condition of the motor vehicle and the circumstances leading to the accident, contrary to established judicial principles that unchallenged evidence ought to be accepted as true.
5. The Learned Magistrate erred in law and in fact by failing to apply the doctrine of res ipsa loquitur in favour of the Appellant in view of the evidence showing the Respondent’s control over the vehicle and the nature of the accident.
6. The Learned Magistrate erred in law and in fact by failing to find that the Respondent’s failure to call any witness or adduce rebuttal evidence amounted to an admission or failure to discharge its evidential burden.
7. The Learned Magistrate erred in law and in fact by misapplying the principles of burden of proof as provided under Sections 107-112 of the Evidence Act.
8. The Learned Magistrate erred in law and in fact by dismissing the entire suit instead of entering judgment for the Appellant on liability. and proceeding to assess damages as pleaded and proved.
9. The Learned Magistrate further erred by failing to appreciate, in the alternative, that the Appellant was at least entitled to partial liability or apportionment on a contributory basis, given the circumstances of the accident.
10. The Learned Magistrate erred in law and in fact in the assessment of damages by proposing an inordinately low quantum that was not consistent with comparable judicial awards for similar injuries, thereby arriving at an erroneous and unjust estimate of general damages.
11. The Learned Magistrate erred in fact and in law by failing to exercise his discretion and analyze the Plaintiff’s financial and health challenges and awarded the Defendant costs of the suit against the Plaintiff who had suffered serious injuries in the accident.
C. THE APPELLANT’S CASE ON APPEAL
13. The Appellant grouped grounds 1 to 8 together. He submitted that the trial magistrate imposed an unduly high standard of proof by requiring a motor-vehicle inspection report despite the Appellant’s evidence that the bus had a braking problem.
14. Counsel submitted that the Appellant was an experienced driver and was therefore competent to identify a braking defect without relying on an expert report. It was contended that the Respondent, as the registered owner and employer, had access to the service history, inspection report and maintenance records and should have produced them under section 112 of the Evidence Act.
15. It was further submitted that the allegation that the Appellant informed his supervisor of the defect remained uncontroverted. The Respondent neither called that supervisor nor produced service and inspection records demonstrating that the vehicle was roadworthy. Consequently, it was argued, the evidential burden shifted to the Respondent.
16. The Appellant relied on the Supreme Court’s holding in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR that, although the legal burden remains with the party asserting the claim, the evidential burden may shift depending on the effectiveness with which the initial burden is discharged.
17. On apportionment, the Appellant relied on Michael Hubert Kloss & another v David Seroney & 5 others [2009] eKLR for the proposition that legal causation in road traffic cases is determined by applying common sense to the facts and that, where the conduct of two or more persons contributes to an accident, liability may be apportioned.
18. On quantum, the Appellant submitted that the proposed award of Kshs.500,000/= was inordinately low for a fracture of the right tibial plateau with permanent incapacity assessed at 20%.
19. Reliance was placed on Ondoto v Kigotho [2024] KEHC 13223 (KLR), where an award of Kshs.1,300,000/= was made for fractures of the left tibial plateau and left femur. The Appellant proposed an award of Kshs.1,200,000 in general damages and Kshs.253,012 as special damages.
20. On costs, the Appellant submitted that the trial court ought to have considered that he had sustained serious injuries, lost his employment and experienced financial hardship. He urged that each party should have been ordered to bear its own costs.
D. THE RESPONDENT’S CASE ON APPEAL
21. The Respondent submitted that the Appellant bore the burden of proving the pleaded negligence and breach of duty under sections 107 to 109 of the Evidence Act. It maintained that the occurrence of an accident and proof of injury did not, without more, prove negligence by the employer.
22. The Respondent relied on Statpack Industries v James Mbithi Munyao [2005] eKLR, where the Court held that a plaintiff must prove a causal link between the alleged breach of duty and the injury sustained. An injury by itself is insufficient to impose liability.
23. It was submitted that the Appellant did not produce any credible evidence that motor vehicle KBK 802J had a defective braking system or that the Respondent knew of such a defect. The Respondent further pointed to the Appellant’s evidence in cross-examination that he was not aware of a braking problem before commencing the journey.
24. The Respondent contended that the Appellant’s own account attributed the accident to an oncoming vehicle that encroached onto his lane. The owner and driver of that vehicle were not joined to the suit.
25. On the police abstract, the Respondent relied on Florence Mutheu Musembi & another v Francis Karenge [2021] KEHC 8336 (KLR), where the Court held that a police abstract is ordinarily proof that an accident was reported, but is not conclusive proof of negligence where investigations remain pending.
26. The Respondent further submitted that its failure to call a witness did not relieve the Appellant of the legal burden of proving his case. It relied on Gichinga Kibutha v Caroline Nduku [2018] eKLR and Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR for the proposition that uncontroverted evidence must still establish the elements of the claim on a balance of probabilities.
27. On damages, the Respondent relied on Kemfro Africa Ltd t/a Meru Express Service v A.M. Lubia & another [1985] eKLR, Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KLR and Arrow Car Ltd v Bimomo & 2 others [2004] KECA 136 (KLR) on the limited circumstances in which an appellate court may interfere with an award of damages.
28. The Respondent also cited Ndwiga & another v Mukimba [2022] KEHC 11793 (KLR), Atunga v Mogambi [2022] KEHC 9854 (KLR), Munene v Mbarire [2023] KEHC 18417 (KLR) and Kiama v Mutiso [2024] KEHC 5135 (KLR), where awards ranging between Kshs.400,000 and Kshs.550,000 were made for fractures and related injuries.
29. The Respondent maintained that Kshs.500,000 was a reasonable assessment for the Appellant’s injuries.
30. On costs, the Respondent relied on section 27 of the Civil Procedure Act and submitted that the trial court properly exercised its discretion by awarding costs to the successful party.
E. ISSUES FOR DETERMINATION
31. Having considered the Memorandum of Appeal, the record of appeal, the parties’ submissions and the authorities cited, the following issues arise for determination:
a. What is the duty of this Court as a first appellate court?
b. Whether the Appellant proved that the Respondent breached its duty to provide a safe system of work and a roadworthy vehicle.
c. Whether the Appellant established a causal connection between the alleged braking defect and the accident.
d. Whether the evidential burden shifted to the Respondent and what consequence followed from its failure to call evidence.
e. Whether the doctrine of res ipsa loquitur applied.
f. Whether the trial court ought to have apportioned liability.
g. Whether the proposed award of Kshs.500,000 in general damages was inordinately low.
h. Whether the trial magistrate wrongly exercised his discretion on costs.
F. DUTY OF THE COURT
32. This is a first appeal. The Court is required to reconsider and re-evaluate the evidence tendered before the trial court and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify.
33. In Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, the former Court of Appeal stated that a first appeal proceeds by way of a retrial and the appellate court must reconsider the evidence, evaluate it and draw its own conclusions, while making allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
34. In Michael Hubert Kloss & another v David Seroney & 5 others [2009] eKLR, the Court of Appeal reiterated that an appellate court will not ordinarily interfere with findings of fact unless they are based on no evidence, result from a misapprehension of the evidence or are founded on a wrong principle.
35. Where credibility depends on the demeanour of a witness, the appellate court should accord due respect to the trial court’s advantage. However, where the determination rests primarily on the recorded evidence, documentary evidence and legal inferences, the appellate court is in as good a position to reconsider the material and reach its own conclusions.
36. I have accordingly reconsidered the pleadings, the Appellant’s written statement, his oral testimony, the documentary evidence, the trial judgment and the parties’ submissions.
G. ANALYSIS
1. The employer’s duty of care
37. There is no dispute that the Appellant was employed by the Respondent and was acting in the course of his employment when the accident occurred.
38. An employer owes an employee a common-law duty to take reasonable care for the employee’s safety. The duty includes providing competent staff, adequate equipment, a reasonably safe place of work and a reasonably safe system of work. Where an employee is assigned a motor vehicle for the employer’s business, the employer is required to take reasonable steps to ensure that the vehicle is properly maintained and reasonably safe for use.
39. In Nandwa v Kenya Kazi Ltd [1988] KLR 488, the Court of Appeal held an employer liable where evidence established that a vehicle assigned to an employee had defective steering and brakes and the employer failed to call material evidence capable of displacing the prima facie inference of negligence. The Court emphasised that a vehicle with defective brakes or steering is inherently dangerous and that an employer has a duty to maintain vehicles assigned to employees in a reasonably safe condition.
40. The existence of that duty is not, however, the same thing as proof of its breach. A claimant must still demonstrate, on a balance of probabilities:
a. the existence of the duty;
b. breach of that duty;
c. injury or damage; and
d. a causal connection between the breach and the injury.
41. In Statpack Industries v James Mbithi Munyao [2005] eKLR, the Court stated that the plaintiff must establish a causal connection between the defendant’s negligence or breach of obligation and the injury sustained. Not every accident or injury necessarily results from another person’s negligence.
42. I therefore agree with the Appellant that the Respondent owed him a duty of care. The decisive question is whether the evidence proved that the duty was breached and that the breach caused the accident.
2. The Appellant’s evidence regarding the braking system
43. In his written statement, the Appellant stated that the bus had not been serviced for some time, that he noticed a braking problem and that he informed his supervisor. According to that statement, the supervisor nevertheless directed him to proceed with the journey.
44. Had that account remained clear, consistent and credible, it might have been sufficient to establish a prima facie case requiring the Respondent to produce its maintenance records or call the supervisor and other relevant witnesses.
45. However, the Appellant’s oral testimony materially departed from his written statement. During cross-examination, he stated: “I was not aware it had brake issues.” In re-examination, he again stated: “I was not aware the vehicle had braking problem.”
47. He further admitted that he did not inspect the vehicle before taking possession of it.
48. These were not peripheral discrepancies. They went to the heart of the pleaded case that the Respondent knowingly assigned him a vehicle with a defective braking system despite his express warning.
49. Evidence is not accepted merely because it is not contradicted by a defence witness. A court must first assess its internal consistency, credibility and probative value. Where a claimant’s oral evidence contradicts the written statement on a central issue, the court must determine whether the claimant has established the alleged fact on a balance of probabilities.
50. In Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau [2016] KECA 153 (KLR), the Court of Appeal held that the burden of proof remains on the plaintiff even where the defendant does not call evidence. The plaintiff must still tender credible and believable evidence sufficient to prove the claim.
51. Likewise, in Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court held that a claimant does not automatically succeed merely because the claim is undefended or the evidence is uncontroverted. The claimant must discharge the applicable burden of proof.
52. On the record before the trial court, the Appellant did not give a consistent account as to whether he knew of a braking defect, observed such a defect or reported it to the supervisor. His oral testimony undermined rather than confirmed the central allegation in his witness statement.
3. Absence of mechanical and maintenance evidence
53. The Appellant did not produce:
a. a defect report made before departure;
b. a service or repair record;
c. a job card;
d. an inspection report;
e. a post-accident mechanical report;
f. evidence from a mechanic;
g. evidence from the alleged supervisor; or
h. evidence from another driver who had operated the vehicle shortly before the accident.
54. A motor-vehicle inspection report is not invariably the only means of proving mechanical failure. Depending on the circumstances, credible evidence from an experienced driver, passengers, mechanics or other witnesses may establish a defect.
55. In Nandwa v Kenya Kazi Ltd,(Supra) the employee’s evidence of defective steering and brakes was supported by other evidence, including evidence showing that the difficulty had manifested itself and that the employer had failed to call a previous driver who could have addressed the condition of the vehicle.
56. Conversely, in Murgian Transport (K) Limited v John Katoga Mulozi alias Rashid Mwakatoga [1998] eKLR, the Court of Appeal emphasised the need for the employee to prove that the employer’s negligence caused the accident. The surrounding evidence there showed that the vehicle had been serviced and that the driver continued operating it after becoming aware of the alleged defect.
57. The present case does not turn solely on the absence of an inspection report. It turns on the totality of the evidence, including the Appellant’s contradictory account and the absence of reliable circumstantial evidence connecting a braking defect to the accident.
58. I therefore do not agree with the Appellant that the trial magistrate imposed the criminal standard of proof. The magistrate was entitled to consider whether objective or corroborative evidence existed, particularly where the Appellant’s own evidence was inconsistent.
4. Cause of the accident
59. The Respondent’s submissions in the trial court and on appeal referred to the Appellant’s account that an oncoming vehicle encroached onto his lane. The driver and owner of that vehicle were not parties to the proceedings.
60. Where an accident has more than one possible cause, the claimant must place before the Court evidence showing that the cause attributed to the defendant is more probable than the competing explanations.
61. In Statpack Industries, the Court held that the plaintiff must prove the causal link between the alleged breach and the accident. The Court cannot impose liability merely because the accident occurred in the course of employment.
62. In Florence Mutheu Musembi & another v Francis Karenge [2021] KEHC 8336 (KLR), the Court observed that, where several explanations remain equally probable and the plaintiff adduces no evidence demonstrating that the defendant’s negligence was the more probable cause, the burden of proof is not discharged.
63. In the present matter, the evidence did not establish whether the accident resulted from:
a. the alleged brake defect;
b. the conduct of the oncoming vehicle;
c. the Appellant’s own management of the bus;
d. a combination of those factors; or
e. another cause.
64. The Court could not properly select the alleged braking defect as the probable cause without evidential support merely because it was pleaded.
5. Effect of the police abstract
65. The police abstract proved that the accident was reported and that the Appellant was involved. It did not attribute blame to the Respondent or establish a mechanical defect.
66. The entry “PUI” indicated that the matter was pending under investigation. The fact that the abstract did not blame the Appellant did not amount to an affirmative finding that the Respondent or a mechanical defect caused the accident.
67. In Florence Mutheu Musembi & another v Francis Karenge, (Supra) the Court correctly stated that a police abstract is ordinarily proof of the report of an accident. Unless it records the outcome of investigations or is supported by other evidence, it is not by itself proof of negligence.
68. The Appellant’s submission that he was not blamed by the police therefore did not establish liability against the Respondent. Absence of blame against one party is not proof of negligence against another.
6. Burden of proof and the Respondent’s failure to call evidence
69. Sections 107, 108 and 109 of the Evidence Act provide that the party who asserts the existence of facts upon which a legal right or liability depends bears the burden of proving them.
70. The Appellant correctly relied on Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR for the distinction between the legal burden and the evidential burden. The legal burden ordinarily remains with the claimant, but the evidential burden may shift after the claimant adduces sufficient evidence establishing a prima facie case.
71. The Supreme Court stated that the evidential burden keeps shifting depending on the effectiveness with which the legal burden is discharged and upon identifying the party who would lose if no further evidence were introduced.
72. That principle applies to ordinary civil proceedings. However, the evidential burden does not shift merely because an allegation has been made. The party bearing the initial burden must first adduce evidence sufficient to support a reasonable inference in his favour.
73. Section 112 of the Evidence Act provides that, in civil proceedings, where a fact is especially within the knowledge of a party, the burden of proving that fact lies upon that party. Maintenance and service records of the Respondent’s vehicle would ordinarily be within the Respondent’s possession.
74. Nevertheless, section 112 does not remove the Appellant’s primary obligation to establish a factual foundation for the allegation that the vehicle was defective and that the defect caused the accident. It becomes material after sufficient evidence has been tendered to call for an answer on the particular fact.
75. Had the Appellant consistently testified that he experienced brake failure, reported it to a named supervisor and was compelled to proceed, the Respondent’s failure to produce its records or call that supervisor could have attracted an adverse inference.
76. That is not what emerged from his oral evidence. He denied knowledge of a braking defect before commencing the journey. There was also no evidence describing what happened when the brakes were allegedly applied, whether they failed entirely, whether braking efficiency was reduced, or how that failure caused the vehicle to crash.
77. The Respondent’s failure to call evidence did not transform the Appellant’s contradictory and incomplete evidence into proof of negligence.
78. The Court of Appeal in Charterhouse Bank Limited v Frank N. Kamau (Supra) was clear that a defendant’s failure to call evidence does not automatically entitle a plaintiff to judgment. The plaintiff must first prove the claim on a balance of probabilities.
79. On the other hand, in Moses Theuri Ndumia v I.G. Transporters Limited & another [2018] KECA 297 (KLR), the Court of Appeal accepted uncontroverted evidence where the claimant had adduced coherent oral and documentary evidence, including police evidence attributing blame to the defendants. That case is distinguishable because the evidence first established a prima facie case which the defendants did not rebut.
80. Here, if no further evidence were introduced after the Appellant’s case, the Court would still be unable to conclude that an employer-related mechanical defect was more probably than not the cause of the accident. The legal burden was therefore not discharged and the evidential burden did not shift in the decisive sense contended for by the Appellant.
7. Application of res ipsa loquitur
81. The doctrine of res ipsa loquitur is a rule of evidence which permits a court to infer negligence where:
a. the accident is of a kind that ordinarily does not occur without negligence;
b. the instrumentality causing the accident was under the management or control of the defendant or a person for whom the defendant is responsible; and
c. the accident is not reasonably explained by another cause consistent with absence of negligence by the defendant.
82. In Embu Public Road Services Ltd v Riimi [1968] EA 22, the Court held that the doctrine applies where the circumstances of the accident raise a prima facie inference of negligence and call upon the defendant to provide an explanation.
83. In Geoffrey Mureithi Juma v Robert Kariuki & 5 others [2011] KECA 16 (KLR), the Court of Appeal applied the doctrine where a passenger was injured in a collision and the owners and drivers of the vehicles failed to give any explanation capable of rebutting the inference of negligence.
84. Conversely, in Keziah & another v Lochab Transport Limited [2022] KECA 477 (KLR), the Court of Appeal held that the mere occurrence of a road accident did not establish negligence where the facts did not point to the defendant’s negligence and the accident could have been caused by another vehicle or circumstances not under the defendant’s control.
85. The present case differs from the ordinary passenger case. The Appellant was the driver and therefore had immediate management of the bus at the material time. Although the Respondent was responsible for maintenance, the accident allegedly involved an oncoming vehicle whose driver was outside the Respondent’s control.
86. Further, the Appellant relied on a specific cause-defective brakes. Where a party alleges a specific mechanical defect, the Court must consider whether the evidence proves that defect and its causal role. The doctrine cannot be used to fill every evidential gap where several plausible causes remain.
87. In Mohamed v Remji [2024] KECA 1311 (KLR), the Court of Appeal reiterated that res ipsa loquitur creates only a rebuttable inference and is applicable where the circumstances themselves point more probably to negligence by the defendant.
88. Here, the circumstances did not uniquely or predominantly point to negligent maintenance by the Respondent. The possible intervention of an oncoming vehicle, the Appellant’s control of the bus and the absence of evidence describing the alleged brake failure prevented the necessary inference from arising.
89. The trial magistrate therefore did not err in declining to impose liability through the doctrine of res ipsa loquitur.
8. Whether liability should have been apportioned
90. The Appellant argued, in the alternative, that the trial court should have apportioned liability rather than dismissing the suit.
91. Apportionment is appropriate where the evidence establishes that two or more persons were at fault but does not justify placing the whole blame on one party.
92. In Michael Hubert Kloss & another v David Seroney & 5 others, the Court of Appeal held that legal causation is determined by applying common sense to the facts of each case. It found that both drivers failed to take available evasive action and apportioned liability equally.
93. The important distinction is that there was affirmative evidence in Kloss establishing negligent acts by both drivers. The Court did not apportion liability merely because the accident’s precise mechanics were uncertain.
94. In the present case, there was no proved negligent act or omission attributable to the Respondent. The mere possibility that the bus could have had a mechanical problem is not a sufficient basis for assigning a percentage of liability.
95. Apportionment cannot be used as a substitute for proof. Before the Court assigns even partial liability, there must be evidence establishing that the party against whom liability is apportioned was at fault and that the fault contributed to the accident.
96. The Appellant did not cross that threshold.
9. Quantum of general damages
97. Although the suit was dismissed on liability, the tri
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A. BACKGROUND
1. This appeal arises from the judgment of Hon. Justus M. Kituku, Senior Principal Magistrate, delivered on 17th September 2025 in Machakos CMCC No. 421 of 2018.
2. The Appellant, Benson Githinji Njeru, filed the suit against his former employer, Coast Bus (Mombasa) Limited, seeking general damages, special damages of Kshs.253,012/= costs and interest arising from injuries sustained in a road traffic accident on 11th February 2017.
3. The Appellant’s case was that he was employed by the Respondent as a long-distance bus driver. On the material date, he was assigned motor vehicle registration number KBK 802J for a scheduled journey. His case, as pleaded and stated in his written witness statement, was that the vehicle had not been serviced for some time and had a defective braking system. He claimed that he notified his supervisor about the defect, but the supervisor directed him to proceed because passengers had already booked and no alternative vehicle was available.
4. The Appellant alleged that the defective braking system caused or materially contributed to the accident in which he sustained a fracture of the right tibial plateau. A medical report prepared by Dr. Cyprianus Okoth Okere assessed permanent incapacity at 20%. A second medical report produced by consent on behalf of the Respondent assessed permanent incapacity at 8%.
5. The Respondent denied negligence, breach of statutory duty and liability for the accident. It pleaded that the Appellant was required to prove the alleged mechanical defect and the causal connection between that defect and the accident.
6. At the trial, the Appellant was the only witness. He adopted his witness statement and documents. During cross-examination, however, he stated that he was not aware that the vehicle had braking problems before commencing the journey. He also stated that he did not inspect the vehicle before taking possession of it. In re-examination, he repeated that he was not aware that the vehicle had a braking problem.
7. The Appellant produced a police abstract showing that the accident had been reported and that investigations were pending. No investigating officer, eyewitness, mechanic, motor-vehicle inspector or the supervisor allegedly notified about the braking defect testified. No pre-accident service record, defect report, inspection report, job card or post-accident mechanical inspection report was produced.
8. The Respondent closed its case without calling a witness.
9. The learned trial magistrate found that the accident and the Appellant’s injuries had been proved. He nevertheless held that the Appellant had failed to prove that the accident was caused by any negligence or breach of duty attributable to the Respondent. The suit was accordingly dismissed with costs.
10. For completeness, the learned magistrate stated that, had liability been proved, he would have awarded the Appellant Kshs.500,000/= as general damages and the special damages proved.
11. Aggrieved by the whole judgment, the Appellant lodged a Memorandum of Appeal dated 9th October 2025.
B. GROUNDS OF APPEAL
12. The grounds of appeal, reproduced verbatim, are as follows:
1. The Learned Magistrate erred in law and in fact in dismissing the Appellant’s suit despite finding that the accident indeed occurred and that the evidence of the Appellant remained uncontroverted.
2. The Learned Magistrate erred in law and in fact by holding that the Appellant failed to prove negligence and/or breach of statutory duty against the Respondent, whereas there was sufficient and credible evidence showing that the Appellant was assigned to drive an unroadworthy vehicle with known mechanical defects.
3. The Learned Magistrate erred in law and in fact by failing to appreciate that the Respondent, as the employer, owed a common law and statutory duty of care to provide a safe system of work and a roadworthy motor vehicle to the Appellant, which duty was breached.
4. The Learned Magistrate misdirected himself in disregarding the Appellant’s uncontroverted testimony on the condition of the motor vehicle and the circumstances leading to the accident, contrary to established judicial principles that unchallenged evidence ought to be accepted as true.
5. The Learned Magistrate erred in law and in fact by failing to apply the doctrine of res ipsa loquitur in favour of the Appellant in view of the evidence showing the Respondent’s control over the vehicle and the nature of the accident.
6. The Learned Magistrate erred in law and in fact by failing to find that the Respondent’s failure to call any witness or adduce rebuttal evidence amounted to an admission or failure to discharge its evidential burden.
7. The Learned Magistrate erred in law and in fact by misapplying the principles of burden of proof as provided under Sections 107-112 of the Evidence Act.
8. The Learned Magistrate erred in law and in fact by dismissing the entire suit instead of entering judgment for the Appellant on liability. and proceeding to assess damages as pleaded and proved.
9. The Learned Magistrate further erred by failing to appreciate, in the alternative, that the Appellant was at least entitled to partial liability or apportionment on a contributory basis, given the circumstances of the accident.
10. The Learned Magistrate erred in law and in fact in the assessment of damages by proposing an inordinately low quantum that was not consistent with comparable judicial awards for similar injuries, thereby arriving at an erroneous and unjust estimate of general damages.
11. The Learned Magistrate erred in fact and in law by failing to exercise his discretion and analyze the Plaintiff’s financial and health challenges and awarded the Defendant costs of the suit against the Plaintiff who had suffered serious injuries in the accident.
C. THE APPELLANT’S CASE ON APPEAL
13. The Appellant grouped grounds 1 to 8 together. He submitted that the trial magistrate imposed an unduly high standard of proof by requiring a motor-vehicle inspection report despite the Appellant’s evidence that the bus had a braking problem.
14. Counsel submitted that the Appellant was an experienced driver and was therefore competent to identify a braking defect without relying on an expert report. It was contended that the Respondent, as the registered owner and employer, had access to the service history, inspection report and maintenance records and should have produced them under section 112 of the Evidence Act.
15. It was further submitted that the allegation that the Appellant informed his supervisor of the defect remained uncontroverted. The Respondent neither called that supervisor nor produced service and inspection records demonstrating that the vehicle was roadworthy. Consequently, it was argued, the evidential burden shifted to the Respondent.
16. The Appellant relied on the Supreme Court’s holding in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR that, although the legal burden remains with the party asserting the claim, the evidential burden may shift depending on the effectiveness with which the initial burden is discharged.
17. On apportionment, the Appellant relied on Michael Hubert Kloss & another v David Seroney & 5 others [2009] eKLR for the proposition that legal causation in road traffic cases is determined by applying common sense to the facts and that, where the conduct of two or more persons contributes to an accident, liability may be apportioned.
18. On quantum, the Appellant submitted that the proposed award of Kshs.500,000/= was inordinately low for a fracture of the right tibial plateau with permanent incapacity assessed at 20%.
19. Reliance was placed on Ondoto v Kigotho [2024] KEHC 13223 (KLR), where an award of Kshs.1,300,000/= was made for fractures of the left tibial plateau and left femur. The Appellant proposed an award of Kshs.1,200,000 in general damages and Kshs.253,012 as special damages.
20. On costs, the Appellant submitted that the trial court ought to have considered that he had sustained serious injuries, lost his employment and experienced financial hardship. He urged that each party should have been ordered to bear its own costs.
D. THE RESPONDENT’S CASE ON APPEAL
21. The Respondent submitted that the Appellant bore the burden of proving the pleaded negligence and breach of duty under sections 107 to 109 of the Evidence Act. It maintained that the occurrence of an accident and proof of injury did not, without more, prove negligence by the employer.
22. The Respondent relied on Statpack Industries v James Mbithi Munyao [2005] eKLR, where the Court held that a plaintiff must prove a causal link between the alleged breach of duty and the injury sustained. An injury by itself is insufficient to impose liability.
23. It was submitted that the Appellant did not produce any credible evidence that motor vehicle KBK 802J had a defective braking system or that the Respondent knew of such a defect. The Respondent further pointed to the Appellant’s evidence in cross-examination that he was not aware of a braking problem before commencing the journey.
24. The Respondent contended that the Appellant’s own account attributed the accident to an oncoming vehicle that encroached onto his lane. The owner and driver of that vehicle were not joined to the suit.
25. On the police abstract, the Respondent relied on Florence Mutheu Musembi & another v Francis Karenge [2021] KEHC 8336 (KLR), where the Court held that a police abstract is ordinarily proof that an accident was reported, but is not conclusive proof of negligence where investigations remain pending.
26. The Respondent further submitted that its failure to call a witness did not relieve the Appellant of the legal burden of proving his case. It relied on Gichinga Kibutha v Caroline Nduku [2018] eKLR and Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR for the proposition that uncontroverted evidence must still establish the elements of the claim on a balance of probabilities.
27. On damages, the Respondent relied on Kemfro Africa Ltd t/a Meru Express Service v A.M. Lubia & another [1985] eKLR, Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KLR and Arrow Car Ltd v Bimomo & 2 others [2004] KECA 136 (KLR) on the limited circumstances in which an appellate court may interfere with an award of damages.
28. The Respondent also cited Ndwiga & another v Mukimba [2022] KEHC 11793 (KLR), Atunga v Mogambi [2022] KEHC 9854 (KLR), Munene v Mbarire [2023] KEHC 18417 (KLR) and Kiama v Mutiso [2024] KEHC 5135 (KLR), where awards ranging between Kshs.400,000 and Kshs.550,000 were made for fractures and related injuries.
29. The Respondent maintained that Kshs.500,000 was a reasonable assessment for the Appellant’s injuries.
30. On costs, the Respondent relied on section 27 of the Civil Procedure Act and submitted that the trial court properly exercised its discretion by awarding costs to the successful party.
E. ISSUES FOR DETERMINATION
31. Having considered the Memorandum of Appeal, the record of appeal, the parties’ submissions and the authorities cited, the following issues arise for determination:
a. What is the duty of this Court as a first appellate court?
b. Whether the Appellant proved that the Respondent breached its duty to provide a safe system of work and a roadworthy vehicle.
c. Whether the Appellant established a causal connection between the alleged braking defect and the accident.
d. Whether the evidential burden shifted to the Respondent and what consequence followed from its failure to call evidence.
e. Whether the doctrine of res ipsa loquitur applied.
f. Whether the trial court ought to have apportioned liability.
g. Whether the proposed award of Kshs.500,000 in general damages was inordinately low.
h. Whether the trial magistrate wrongly exercised his discretion on costs.
F. DUTY OF THE COURT
32. This is a first appeal. The Court is required to reconsider and re-evaluate the evidence tendered before the trial court and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify.
33. In Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, the former Court of Appeal stated that a first appeal proceeds by way of a retrial and the appellate court must reconsider the evidence, evaluate it and draw its own conclusions, while making allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
34. In Michael Hubert Kloss & another v David Seroney & 5 others [2009] eKLR, the Court of Appeal reiterated that an appellate court will not ordinarily interfere with findings of fact unless they are based on no evidence, result from a misapprehension of the evidence or are founded on a wrong principle.
35. Where credibility depends on the demeanour of a witness, the appellate court should accord due respect to the trial court’s advantage. However, where the determination rests primarily on the recorded evidence, documentary evidence and legal inferences, the appellate court is in as good a position to reconsider the material and reach its own conclusions.
36. I have accordingly reconsidered the pleadings, the Appellant’s written statement, his oral testimony, the documentary evidence, the trial judgment and the parties’ submissions.
G. ANALYSIS
1. The employer’s duty of care
37. There is no dispute that the Appellant was employed by the Respondent and was acting in the course of his employment when the accident occurred.
38. An employer owes an employee a common-law duty to take reasonable care for the employee’s safety. The duty includes providing competent staff, adequate equipment, a reasonably safe place of work and a reasonably safe system of work. Where an employee is assigned a motor vehicle for the employer’s business, the employer is required to take reasonable steps to ensure that the vehicle is properly maintained and reasonably safe for use.
39. In Nandwa v Kenya Kazi Ltd [1988] KLR 488, the Court of Appeal held an employer liable where evidence established that a vehicle assigned to an employee had defective steering and brakes and the employer failed to call material evidence capable of displacing the prima facie inference of negligence. The Court emphasised that a vehicle with defective brakes or steering is inherently dangerous and that an employer has a duty to maintain vehicles assigned to employees in a reasonably safe condition.
40. The existence of that duty is not, however, the same thing as proof of its breach. A claimant must still demonstrate, on a balance of probabilities:
a. the existence of the duty;
b. breach of that duty;
c. injury or damage; and
d. a causal connection between the breach and the injury.
41. In Statpack Industries v James Mbithi Munyao [2005] eKLR, the Court stated that the plaintiff must establish a causal connection between the defendant’s negligence or breach of obligation and the injury sustained. Not every accident or injury necessarily results from another person’s negligence.
42. I therefore agree with the Appellant that the Respondent owed him a duty of care. The decisive question is whether the evidence proved that the duty was breached and that the breach caused the accident.
2. The Appellant’s evidence regarding the braking system
43. In his written statement, the Appellant stated that the bus had not been serviced for some time, that he noticed a braking problem and that he informed his supervisor. According to that statement, the supervisor nevertheless directed him to proceed with the journey.
44. Had that account remained clear, consistent and credible, it might have been sufficient to establish a prima facie case requiring the Respondent to produce its maintenance records or call the supervisor and other relevant witnesses.
45. However, the Appellant’s oral testimony materially departed from his written statement. During cross-examination, he stated: “I was not aware it had brake issues.” In re-examination, he again stated: “I was not aware the vehicle had braking problem.”
47. He further admitted that he did not inspect the vehicle before taking possession of it.
48. These were not peripheral discrepancies. They went to the heart of the pleaded case that the Respondent knowingly assigned him a vehicle with a defective braking system despite his express warning.
49. Evidence is not accepted merely because it is not contradicted by a defence witness. A court must first assess its internal consistency, credibility and probative value. Where a claimant’s oral evidence contradicts the written statement on a central issue, the court must determine whether the claimant has established the alleged fact on a balance of probabilities.
50. In Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau [2016] KECA 153 (KLR), the Court of Appeal held that the burden of proof remains on the plaintiff even where the defendant does not call evidence. The plaintiff must still tender credible and believable evidence sufficient to prove the claim.
51. Likewise, in Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court held that a claimant does not automatically succeed merely because the claim is undefended or the evidence is uncontroverted. The claimant must discharge the applicable burden of proof.
52. On the record before the trial court, the Appellant did not give a consistent account as to whether he knew of a braking defect, observed such a defect or reported it to the supervisor. His oral testimony undermined rather than confirmed the central allegation in his witness statement.
3. Absence of mechanical and maintenance evidence
53. The Appellant did not produce:
a. a defect report made before departure;
b. a service or repair record;
c. a job card;
d. an inspection report;
e. a post-accident mechanical report;
f. evidence from a mechanic;
g. evidence from the alleged supervisor; or
h. evidence from another driver who had operated the vehicle shortly before the accident.
54. A motor-vehicle inspection report is not invariably the only means of proving mechanical failure. Depending on the circumstances, credible evidence from an experienced driver, passengers, mechanics or other witnesses may establish a defect.
55. In Nandwa v Kenya Kazi Ltd,(Supra) the employee’s evidence of defective steering and brakes was supported by other evidence, including evidence showing that the difficulty had manifested itself and that the employer had failed to call a previous driver who could have addressed the condition of the vehicle.
56. Conversely, in Murgian Transport (K) Limited v John Katoga Mulozi alias Rashid Mwakatoga [1998] eKLR, the Court of Appeal emphasised the need for the employee to prove that the employer’s negligence caused the accident. The surrounding evidence there showed that the vehicle had been serviced and that the driver continued operating it after becoming aware of the alleged defect.
57. The present case does not turn solely on the absence of an inspection report. It turns on the totality of the evidence, including the Appellant’s contradictory account and the absence of reliable circumstantial evidence connecting a braking defect to the accident.
58. I therefore do not agree with the Appellant that the trial magistrate imposed the criminal standard of proof. The magistrate was entitled to consider whether objective or corroborative evidence existed, particularly where the Appellant’s own evidence was inconsistent.
4. Cause of the accident
59. The Respondent’s submissions in the trial court and on appeal referred to the Appellant’s account that an oncoming vehicle encroached onto his lane. The driver and owner of that vehicle were not parties to the proceedings.
60. Where an accident has more than one possible cause, the claimant must place before the Court evidence showing that the cause attributed to the defendant is more probable than the competing explanations.
61. In Statpack Industries, the Court held that the plaintiff must prove the causal link between the alleged breach and the accident. The Court cannot impose liability merely because the accident occurred in the course of employment.
62. In Florence Mutheu Musembi & another v Francis Karenge [2021] KEHC 8336 (KLR), the Court observed that, where several explanations remain equally probable and the plaintiff adduces no evidence demonstrating that the defendant’s negligence was the more probable cause, the burden of proof is not discharged.
63. In the present matter, the evidence did not establish whether the accident resulted from:
a. the alleged brake defect;
b. the conduct of the oncoming vehicle;
c. the Appellant’s own management of the bus;
d. a combination of those factors; or
e. another cause.
64. The Court could not properly select the alleged braking defect as the probable cause without evidential support merely because it was pleaded.
5. Effect of the police abstract
65. The police abstract proved that the accident was reported and that the Appellant was involved. It did not attribute blame to the Respondent or establish a mechanical defect.
66. The entry “PUI” indicated that the matter was pending under investigation. The fact that the abstract did not blame the Appellant did not amount to an affirmative finding that the Respondent or a mechanical defect caused the accident.
67. In Florence Mutheu Musembi & another v Francis Karenge, (Supra) the Court correctly stated that a police abstract is ordinarily proof of the report of an accident. Unless it records the outcome of investigations or is supported by other evidence, it is not by itself proof of negligence.
68. The Appellant’s submission that he was not blamed by the police therefore did not establish liability against the Respondent. Absence of blame against one party is not proof of negligence against another.
6. Burden of proof and the Respondent’s failure to call evidence
69. Sections 107, 108 and 109 of the Evidence Act provide that the party who asserts the existence of facts upon which a legal right or liability depends bears the burden of proving them.
70. The Appellant correctly relied on Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR for the distinction between the legal burden and the evidential burden. The legal burden ordinarily remains with the claimant, but the evidential burden may shift after the claimant adduces sufficient evidence establishing a prima facie case.
71. The Supreme Court stated that the evidential burden keeps shifting depending on the effectiveness with which the legal burden is discharged and upon identifying the party who would lose if no further evidence were introduced.
72. That principle applies to ordinary civil proceedings. However, the evidential burden does not shift merely because an allegation has been made. The party bearing the initial burden must first adduce evidence sufficient to support a reasonable inference in his favour.
73. Section 112 of the Evidence Act provides that, in civil proceedings, where a fact is especially within the knowledge of a party, the burden of proving that fact lies upon that party. Maintenance and service records of the Respondent’s vehicle would ordinarily be within the Respondent’s possession.
74. Nevertheless, section 112 does not remove the Appellant’s primary obligation to establish a factual foundation for the allegation that the vehicle was defective and that the defect caused the accident. It becomes material after sufficient evidence has been tendered to call for an answer on the particular fact.
75. Had the Appellant consistently testified that he experienced brake failure, reported it to a named supervisor and was compelled to proceed, the Respondent’s failure to produce its records or call that supervisor could have attracted an adverse inference.
76. That is not what emerged from his oral evidence. He denied knowledge of a braking defect before commencing the journey. There was also no evidence describing what happened when the brakes were allegedly applied, whether they failed entirely, whether braking efficiency was reduced, or how that failure caused the vehicle to crash.
77. The Respondent’s failure to call evidence did not transform the Appellant’s contradictory and incomplete evidence into proof of negligence.
78. The Court of Appeal in Charterhouse Bank Limited v Frank N. Kamau (Supra) was clear that a defendant’s failure to call evidence does not automatically entitle a plaintiff to judgment. The plaintiff must first prove the claim on a balance of probabilities.
79. On the other hand, in Moses Theuri Ndumia v I.G. Transporters Limited & another [2018] KECA 297 (KLR), the Court of Appeal accepted uncontroverted evidence where the claimant had adduced coherent oral and documentary evidence, including police evidence attributing blame to the defendants. That case is distinguishable because the evidence first established a prima facie case which the defendants did not rebut.
80. Here, if no further evidence were introduced after the Appellant’s case, the Court would still be unable to conclude that an employer-related mechanical defect was more probably than not the cause of the accident. The legal burden was therefore not discharged and the evidential burden did not shift in the decisive sense contended for by the Appellant.
7. Application of res ipsa loquitur
81. The doctrine of res ipsa loquitur is a rule of evidence which permits a court to infer negligence where:
a. the accident is of a kind that ordinarily does not occur without negligence;
b. the instrumentality causing the accident was under the management or control of the defendant or a person for whom the defendant is responsible; and
c. the accident is not reasonably explained by another cause consistent with absence of negligence by the defendant.
82. In Embu Public Road Services Ltd v Riimi [1968] EA 22, the Court held that the doctrine applies where the circumstances of the accident raise a prima facie inference of negligence and call upon the defendant to provide an explanation.
83. In Geoffrey Mureithi Juma v Robert Kariuki & 5 others [2011] KECA 16 (KLR), the Court of Appeal applied the doctrine where a passenger was injured in a collision and the owners and drivers of the vehicles failed to give any explanation capable of rebutting the inference of negligence.
84. Conversely, in Keziah & another v Lochab Transport Limited [2022] KECA 477 (KLR), the Court of Appeal held that the mere occurrence of a road accident did not establish negligence where the facts did not point to the defendant’s negligence and the accident could have been caused by another vehicle or circumstances not under the defendant’s control.
85. The present case differs from the ordinary passenger case. The Appellant was the driver and therefore had immediate management of the bus at the material time. Although the Respondent was responsible for maintenance, the accident allegedly involved an oncoming vehicle whose driver was outside the Respondent’s control.
86. Further, the Appellant relied on a specific cause-defective brakes. Where a party alleges a specific mechanical defect, the Court must consider whether the evidence proves that defect and its causal role. The doctrine cannot be used to fill every evidential gap where several plausible causes remain.
87. In Mohamed v Remji [2024] KECA 1311 (KLR), the Court of Appeal reiterated that res ipsa loquitur creates only a rebuttable inference and is applicable where the circumstances themselves point more probably to negligence by the defendant.
88. Here, the circumstances did not uniquely or predominantly point to negligent maintenance by the Respondent. The possible intervention of an oncoming vehicle, the Appellant’s control of the bus and the absence of evidence describing the alleged brake failure prevented the necessary inference from arising.
89. The trial magistrate therefore did not err in declining to impose liability through the doctrine of res ipsa loquitur.
8. Whether liability should have been apportioned
90. The Appellant argued, in the alternative, that the trial court should have apportioned liability rather than dismissing the suit.
91. Apportionment is appropriate where the evidence establishes that two or more persons were at fault but does not justify placing the whole blame on one party.
92. In Michael Hubert Kloss & another v David Seroney & 5 others, the Court of Appeal held that legal causation is determined by applying common sense to the facts of each case. It found that both drivers failed to take available evasive action and apportioned liability equally.
93. The important distinction is that there was affirmative evidence in Kloss establishing negligent acts by both drivers. The Court did not apportion liability merely because the accident’s precise mechanics were uncertain.
94. In the present case, there was no proved negligent act or omission attributable to the Respondent. The mere possibility that the bus could have had a mechanical problem is not a sufficient basis for assigning a percentage of liability.
95. Apportionment cannot be used as a substitute for proof. Before the Court assigns even partial liability, there must be evidence establishing that the party against whom liability is apportioned was at fault and that the fault contributed to the accident.
96. The Appellant did not cross that threshold.
9. Quantum of general damages
97. Although the suit was dismissed on liability, the tri
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