1. This appeal emanates from the judgement and decree of Hon. G.C. Serem Resident Magistrate/Adjudicator delivered on delivered on 4th July, 2024 in Kisumu SCCCOMM No. E194 of 2024 Byron Otieno Ndege v Peter Ronoh.
2. The grounds of appeal presented by the Appellant vide the memorandum of appeal dated 2nd August, 2024 upon which he seeks to upset the judgement and decree of the lower court are as follows:
i. That the learned trial Magistrate erred by apportioning liability in the ratio of 50%:50% yet the testimony and the entire evidence points towards the Appellant being 100% liable for the accident that was solely occasioned by the Respondent herein who had a higher duty of care as compared to the Respondent.
ii. THAT the Learned Trial Magistrate erred in fact and in Law in failing to consider the Appellant’s submissions on liability by completely disregarding the submissions and authorities of the Appellant and as a result arrived in unjustified decision on liability.
iii. THAT the Learned Trial Magistrate erred in law and in fact in failing to award special damages which were specifically pleaded and proved as required by the law.
3. The Appellant proposes that the appeal be allowed and that this court sets aside the trial court’s findings on liability and proceeds to re-assess the same and further that this court awards the Appellant special damages.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to re-assess, re-analyze and re-evaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. Notably however, this is an appeal from the Small Claims Court and Section 38 of the Small Claims Court Act provides that a person dissatisfied with a decision or order of the Small Claims Court may appeal to the High Court only on matters of law, not on questions of fact, and that once the High Court determines such an appeal, its decision is final.
8. I will proceed to re-assess, re-analyze and re-evaluate the evidence adduced before the trial court and reach my own findings while abiding by the principles set in Selle and in Peters v Sunday Post. While doing so. I will limit myself to the issue of quantum.
9. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 25th November, 2022 in which the Appellant (the Claimant before the trial court) sustained bodily injuries.
10. The Appellant sued the Respondent vide the statement of claim dated 18th May, 2024 seeking to recover damages for the injuries sustained, claiming that the accident occurred due to the negligence of the Respondent and/or his servant and/or agent.
11. The Appellant pleaded that the accident was caused by the negligence of the Respondent, his driver, servant, employee and/or agent and listed the following particulars of negligence:
a. Driving at a speed that was excessive in the circumstances.
b. Failing to keep any or any proper look out or to have any sufficient regard for other lawful motorists and/or road users and more particularly the Appellant.
c. Failing to see the Appellant in sufficient time or at all so as to in any eventuality avoid the said accident or make attempts to avoid knocking the Appellant.
d. Driving a defective motor vehicle.
e. Failing to slow down, stop, swerve and/or apply brakes or in any other way maneuver and or control his motor vehicle so as to avoid knocking the Appellant.
f. Failing to adhere to and/or observe basic traffic rules.
g. Failing to take any adequate measures to prevent the vehicle from causing the accident.
h. Driving while drunk and/or under the influence of intoxicating substances.
12. The Appellant sought to rely the doctrine of res ipsa loquitor, the Highway Code and the provisions of the Traffic Act, Cap 403 Laws of Kenya in support of his claim herein
13. The Appellant pleaded that he sustained injuries in the accident and listed the following particulars of injuries in his pleading:
a. Deep cut on the left temporal region of the head.
b. Physical and psychological pains.
c. Multiple bruises on the frontal region of the head.
d. Blunt trauma to the back.
e. Bruises on the left lumbar region.
f. Blood loss.
g. Chest contusion.
h. Blunt trauma to the right knee.
i. Abrasions on the left hip.
14. The Appellant pleaded the following particulars of special damages:
a. Search on motor vehicle – Ksh.550/-.
b. Medical expenses – Ksh.10,000/-.
c. Medical Report – Ksh.6500/-.
Total – Ksh.20,550/.
15. The Respondent resisted the Appellant’s claim and to that end filed a response to claim dated 30th May, 2024.
16. In his response, the Respondent denied ownership of motor vehicle registration number KDJ 405P as was alleged by the Appellant and further denied that the said vehicle was involved in the accident described by the Appellant or at all, asserting that he was neither the actual, registered, beneficial, legal, equitable nor insured owner of the said motor vehicle at the material time and putting the Appellant to strict proof thereof.
17. The Respondent further denied that any accident occurred involving the said motor vehicle and a bicycle on the date, at the place and in the manner alleged in the by the Appellant and put the Appellant to strict proof of those allegations.
18. The Respondent pleaded in the alternative and without prejudice to the foregoing denials, that if the said accident occurred and if the Appellant sustained injuries as alleged in the Statement of Claim or at all, then the same was solely and or substantially contributed by the Appellant. He listed the following particulars of negligence as being attributable to the Appellant:
a. Failing to comply with the traffic rules and regulation while riding his bicycle.
b. Encroaching into the lawful lane of motor vehicle KDJ 405P.
c. Riding without due care and attention of other road users and specifically the driver of motor vehicle KDJ 405P.
d. Ramming into motor vehicle KDJ 405P which was on its lawful lane.
e. Dangerously riding and endangering his own life.
f. Failing to slow down, stop, swerve or do anything that would have avoided the accident.
g. Being reckless and disregarding his own safety.
h. Being generally careless and negligent.
i. Volenti non fit injuria.
19. Additionally, the Respondent contended that the Appellant was estopped from claiming damages arising from his own negligent acts or omissions under the doctrine of ex turpi causa non oritur actio and maintained that if any accident occurred, which he denied, the same was inevitable and unavoidable by a reasonable person in the circumstances.
20. The Respondent denied having received or been served with any demand or notice of intention to sue and consequently prayed that the suit be dismissed with costs.
21. The Appellant testified before the trial court as CW1 and adopted the contents of his witness statement dated 18th May, 2024 as his evidence-in-chief.
22. In his brief statement, the Appellant stated that on 25th November, 2022 at about 1730hrs, while riding his bicycle along the Kisumu–Ahero Road at Masogo Junction, motor vehicle registration number KDJ 405P veered off the main highway and hit him from behind as he was using the pedestrian walkway. He added that as a result of the accident, he sustained serious injuries and subsequently incurred medical expenses at various treatment facilities where he received care.
23. The Appellant produced the following documents in support of his case:
- Appellant’s copy of national identity card
- Police Abstract.
- Medical report by Dr. Morebu Peter Momanyi.
- Receipt for Ksh.6,500/- for the medical report.
- P3 form.
- Statutory notice.
- Notice of institution of suit.
- Motor vehicle copy of records
24. Upon being cross examined, the Appellant told the trial court that on the material day, he was headed in the general direction of Kisumu and that the road from his work place to the highway, which was not tarmacked, took about 20 minutes to traverse. He explained that the highway had two lanes, one leading to Kisumu and the other to Awasi and that he was already cycling along it when the accident occurred.
25. The Appellant told the trial court that he was riding his motorcycle, not walking, and that he sustained injuries which prevented him from accompanying the Respondent to the police station, though he later reported the incident. He stated that the Respondent took him to the hospital, paid Ksh.5,000/- for his treatment and subsequently left. He stated that that he fully recovered. The Appellant also clarified that he was not wearing any headphones at the time of the accident.
26. The Appellant called Dr. John Obunde Jaranga, who worked at Jaramogi Oginga Odinga Teaching and Referral Hospital as CW2. The witness told the trial court that the Appellant was treated at the facility on 25th November, 2022, having been involved in a road traffic accident. The witness produced the Appellant’s treatment records as an exhibit.
27. The Respondent testified before the trial court and adopted the contents of his statement dated 4th June, 2024 as his evidence in chief.
28. In his statement, the Respondent stated that he was driving motor vehicle registration number KDJ 405P on 25th November, 2022 towards Kisumu general direction from Ahero general direction and that at Masogo area, a pedal cyclist suddenly emerged from a rough road on his left and joined the main road without first ensuring that it was safe to do so. The Respondent’s position was that the rider was wholly to blame for the accident.
29. The Respondent stated that the rider, who had earphones on, crashed onto the left rear side of his vehicle. The Respondent took the rider – the Appellant – to hospital and paid Ksh.5,000/- for his medical treatment.
30. On being cross examined, the Respondent stated that the accident occurred on the main highway.
31. The Respondent produced a second medical opinion/report that was prepared by Dr. Z. Gaya, upon examining the Appellant on 7th June, 2024.
32. In the trial court’s judgement rendered on 4th July, 2024, the learned Adjudicator addressed herself on the issue of liability as follows:
“5. On liability the claimant stated that he was riding his bicycle headed to Kisumu general direction when he was hit. He stated that he had already joined the highway. He also stated that he did not have headphones on RW1 on the other hand stated that the claimant was joining the road and he did not wait for him to pass. He further stated that the claimant herein had ear phones.
6. From the said testimonies, the claimant alleged that that he was hit on the road from the back and the respondent on the other hand stated that the claimant was in the process of 10 joining the road. There was no other witness that was called by the parties to corroborate or justify the different views on how the accident happened.
7. In the case of Eliud Papoi Papa v Jigneshkumar Rameshbai Patel & another [2017] eKLR (High Court of Kenya at Naivasha Civil Case No. 23 of 2015) where she stated as follows:
“Thus, the court is confronted with conflicting and irreconcilable evidence regarding how the collision occurred and which driver is to blame. It is true that under Section 107 of the Evidence Act the Plaintiff was obligated to prove his allegations of negligence against the Defendants. However, the existence of conflicting versions on the collision does not necessarily mean that nobody was liable; a collision involving two vehicles almost always involves fault on the part of one or both drivers....”
8. The Plaintiff's and Defendant's account of the accident was equally doubtful. Of the collision however, there is no dispute. In the circumstances, and based on the decision o he Court of Appeal in Hussein Omar Farah and Anne Wambui Ndiritu, I must find that the claimant and the respondent equally contributed for the accident.
9. In the present case, I am persuaded that this is the correct principle to apply. It is clear that a collision occurred and the claimant sustained serious injuries following the collision. However, of the two dueling accounts of the collision, it is not possible to determine which one is more plausible or to determine which of the two drivers is more blameworthy. Faced with these two conflicting accounts, I split the liability equally. Liability will be apportioned at 50% each between the claimant and the respondent.”
33. With that, the learned Adjudicator found the parties to be equally liable for the accident and proceeded to assess general damages at Ksh.200,000/-, subject to apportionment. No award of special damages was made.
34. The present appeal was canvassed by way of written submissions. I have had the occasion of perusing and carefully considering the submissions by the two sides. The appeal as presented is limited to the issue of liability and special damages.
35. The first issue for determination is whether the trial court correctly apportioned liability between the parties. The second issue relates to the award of special damages and costs. The third issue is whether the Appellant is entitled to costs of this appeal, having regard to the findings on liability and any award of damages.
36. Now to the first issue, which is that of liability, the same involves examining whether the Appellant and Respondent each contributed equally to the accident, or whether the evidence demonstrates that the Respondent was solely or primarily negligent, thereby attracting full liability for the injuries sustained by the Appellant.
37. In determining this issue, I will consider the conflicting accounts of how the collision occurred and assess the credibility and sufficiency of the evidence presented at trial.
38. In tortious liability claims such as the present one, the Appellant bears the burden of proving, on a balance of probabilities, that the Respondent owed him a duty of care which was breached and that the breach caused the accident and his injuries. This is a fundamental principle in Section 107 of the Evidence Act, Cap 80.
39. Under this standard, a trial court must evaluate all competing versions of events and decide which account is more probable based on the totality of evidence.
40. Where evidence is conflicting and irreconcilable, an appellate court will only disturb a trial court’s finding on liability if there is an error in principle or the apportionment is manifestly erroneous. Where there is conflicting testimony about how a collision occurred, a trial court is entitled to assess credibility and make findings based on the balance of probabilities.
41. Additionally, established authority in Lakhamshi v Attorney General [1971] EA 118, the court held that where it is not possible to distinguish fault between parties on the evidence, then a 50:50 apportionment is proper rather than attributing sole fault to one party.
42. In the circumstances of this appeal, the testimony of the two sides before the trial court was directly at odds. The Appellant claimed the Respondent’s vehicle hit him from behind while he was already on the highway, whereas the Respondent maintained that the Appellant suddenly emerged from a feeder road into his path. Neither version was supported by credible independent evidence or eyewitness testimony that would allow the trial court to resolve the conflict decisively in favour of one party. In such a situation, equal apportionment where the conflict remains unresolved on the evidence is apt, due to conflicting evidence of causation, as was held in Lakhamshi.
43. There is therefore no indication that the learned Adjudicator misapplied the law in reaching the 50:50 liability apportionment. She considered the parties’ competing evidence and recognized the absence of independent proof to corroborate either account. The learned Adjudicator did not err in law or principle, in the premises.
44. The second issue is in respect of the Appellant’s claim for special damages totaling Ksh.20,550/-, comprising Ksh.550/- for a search on the motor vehicle, Ksh.10,000/- for medical expenses and Ksh.6,500/- for a medical report.
45. In addressing this issue, I am required to determine whether the Appellant is entitled to the special damages claimed, namely expenses for search on the motor vehicle, medical treatment, and medical report, totaling Ksh.20,550/-, which were pleaded and evidenced before the trial court.
46. In law, special damages must be specifically pleaded and proved and the claimant bears the burden of showing that the losses were reasonably incurred as a direct result of the Respondent’s negligence.
47. In the present case, the Appellant produced receipts and medical records in support of these claims, which were not disputed by the Respondent. Evidence before the trial court and on appeal shows that the Respondent voluntarily contributed Ksh.5,000/- towards the Appellant’s medical treatment at the hospital. This payment is a credit against the total special damages claimed.
48. Accordingly, the net special damages recoverable by the Appellant amount to Ksh.15,550/-, being the total pleaded and proved sum of Ksh.20,550/- less the Ksh.5,000/- already paid by the Respondent. There was no basis for the learned Adjudicator to wholly disallow the same.
49. The award on special damages will however be subject to the trial court’s finding on apportionment of liability. The same shall attract interest at court rates from the date of filing suit.
50. I will therefore allow the appeal only to the extent of my findings above on special damages. The appeal on liability lacks merit and fails.
51. With respect to costs, which is the third issue for determination, the general rule under Section 27 of the Civil Procedure Act is that costs follow the event unless the court orders otherwise.
52. Given that the Appellant has only succeeded in part on the issue of special damages, I order that each party shall bears their own costs of the appeal. The finding on costs in the trial court shall remain undisturbed.
53. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 26th day of February, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: Ms. Aluang’a for Mr. Odhiambo.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Ms. Aluang’a: I seek 30 days stay for the Respondent to make arrangements on payment.
Court: There shall be 30 days stay of execution.
JOE M. OMIDO
JUDGE
2. The grounds of appeal presented by the Appellant vide the memorandum of appeal dated 2nd August, 2024 upon which he seeks to upset the judgement and decree of the lower court are as follows:
i. That the learned trial Magistrate erred by apportioning liability in the ratio of 50%:50% yet the testimony and the entire evidence points towards the Appellant being 100% liable for the accident that was solely occasioned by the Respondent herein who had a higher duty of care as compared to the Respondent.
ii. THAT the Learned Trial Magistrate erred in fact and in Law in failing to consider the Appellant’s submissions on liability by completely disregarding the submissions and authorities of the Appellant and as a result arrived in unjustified decision on liability.
iii. THAT the Learned Trial Magistrate erred in law and in fact in failing to award special damages which were specifically pleaded and proved as required by the law.
3. The Appellant proposes that the appeal be allowed and that this court sets aside the trial court’s findings on liability and proceeds to re-assess the same and further that this court awards the Appellant special damages.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to re-assess, re-analyze and re-evaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. Notably however, this is an appeal from the Small Claims Court and Section 38 of the Small Claims Court Act provides that a person dissatisfied with a decision or order of the Small Claims Court may appeal to the High Court only on matters of law, not on questions of fact, and that once the High Court determines such an appeal, its decision is final.
8. I will proceed to re-assess, re-analyze and re-evaluate the evidence adduced before the trial court and reach my own findings while abiding by the principles set in Selle and in Peters v Sunday Post. While doing so. I will limit myself to the issue of quantum.
9. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 25th November, 2022 in which the Appellant (the Claimant before the trial court) sustained bodily injuries.
10. The Appellant sued the Respondent vide the statement of claim dated 18th May, 2024 seeking to recover damages for the injuries sustained, claiming that the accident occurred due to the negligence of the Respondent and/or his servant and/or agent.
11. The Appellant pleaded that the accident was caused by the negligence of the Respondent, his driver, servant, employee and/or agent and listed the following particulars of negligence:
a. Driving at a speed that was excessive in the circumstances.
b. Failing to keep any or any proper look out or to have any sufficient regard for other lawful motorists and/or road users and more particularly the Appellant.
c. Failing to see the Appellant in sufficient time or at all so as to in any eventuality avoid the said accident or make attempts to avoid knocking the Appellant.
d. Driving a defective motor vehicle.
e. Failing to slow down, stop, swerve and/or apply brakes or in any other way maneuver and or control his motor vehicle so as to avoid knocking the Appellant.
f. Failing to adhere to and/or observe basic traffic rules.
g. Failing to take any adequate measures to prevent the vehicle from causing the accident.
h. Driving while drunk and/or under the influence of intoxicating substances.
12. The Appellant sought to rely the doctrine of res ipsa loquitor, the Highway Code and the provisions of the Traffic Act, Cap 403 Laws of Kenya in support of his claim herein
13. The Appellant pleaded that he sustained injuries in the accident and listed the following particulars of injuries in his pleading:
a. Deep cut on the left temporal region of the head.
b. Physical and psychological pains.
c. Multiple bruises on the frontal region of the head.
d. Blunt trauma to the back.
e. Bruises on the left lumbar region.
f. Blood loss.
g. Chest contusion.
h. Blunt trauma to the right knee.
i. Abrasions on the left hip.
14. The Appellant pleaded the following particulars of special damages:
a. Search on motor vehicle – Ksh.550/-.
b. Medical expenses – Ksh.10,000/-.
c. Medical Report – Ksh.6500/-.
Total – Ksh.20,550/.
15. The Respondent resisted the Appellant’s claim and to that end filed a response to claim dated 30th May, 2024.
16. In his response, the Respondent denied ownership of motor vehicle registration number KDJ 405P as was alleged by the Appellant and further denied that the said vehicle was involved in the accident described by the Appellant or at all, asserting that he was neither the actual, registered, beneficial, legal, equitable nor insured owner of the said motor vehicle at the material time and putting the Appellant to strict proof thereof.
17. The Respondent further denied that any accident occurred involving the said motor vehicle and a bicycle on the date, at the place and in the manner alleged in the by the Appellant and put the Appellant to strict proof of those allegations.
18. The Respondent pleaded in the alternative and without prejudice to the foregoing denials, that if the said accident occurred and if the Appellant sustained injuries as alleged in the Statement of Claim or at all, then the same was solely and or substantially contributed by the Appellant. He listed the following particulars of negligence as being attributable to the Appellant:
a. Failing to comply with the traffic rules and regulation while riding his bicycle.
b. Encroaching into the lawful lane of motor vehicle KDJ 405P.
c. Riding without due care and attention of other road users and specifically the driver of motor vehicle KDJ 405P.
d. Ramming into motor vehicle KDJ 405P which was on its lawful lane.
e. Dangerously riding and endangering his own life.
f. Failing to slow down, stop, swerve or do anything that would have avoided the accident.
g. Being reckless and disregarding his own safety.
h. Being generally careless and negligent.
i. Volenti non fit injuria.
19. Additionally, the Respondent contended that the Appellant was estopped from claiming damages arising from his own negligent acts or omissions under the doctrine of ex turpi causa non oritur actio and maintained that if any accident occurred, which he denied, the same was inevitable and unavoidable by a reasonable person in the circumstances.
20. The Respondent denied having received or been served with any demand or notice of intention to sue and consequently prayed that the suit be dismissed with costs.
21. The Appellant testified before the trial court as CW1 and adopted the contents of his witness statement dated 18th May, 2024 as his evidence-in-chief.
22. In his brief statement, the Appellant stated that on 25th November, 2022 at about 1730hrs, while riding his bicycle along the Kisumu–Ahero Road at Masogo Junction, motor vehicle registration number KDJ 405P veered off the main highway and hit him from behind as he was using the pedestrian walkway. He added that as a result of the accident, he sustained serious injuries and subsequently incurred medical expenses at various treatment facilities where he received care.
23. The Appellant produced the following documents in support of his case:
- Appellant’s copy of national identity card
- Police Abstract.
- Medical report by Dr. Morebu Peter Momanyi.
- Receipt for Ksh.6,500/- for the medical report.
- P3 form.
- Statutory notice.
- Notice of institution of suit.
- Motor vehicle copy of records
24. Upon being cross examined, the Appellant told the trial court that on the material day, he was headed in the general direction of Kisumu and that the road from his work place to the highway, which was not tarmacked, took about 20 minutes to traverse. He explained that the highway had two lanes, one leading to Kisumu and the other to Awasi and that he was already cycling along it when the accident occurred.
25. The Appellant told the trial court that he was riding his motorcycle, not walking, and that he sustained injuries which prevented him from accompanying the Respondent to the police station, though he later reported the incident. He stated that the Respondent took him to the hospital, paid Ksh.5,000/- for his treatment and subsequently left. He stated that that he fully recovered. The Appellant also clarified that he was not wearing any headphones at the time of the accident.
26. The Appellant called Dr. John Obunde Jaranga, who worked at Jaramogi Oginga Odinga Teaching and Referral Hospital as CW2. The witness told the trial court that the Appellant was treated at the facility on 25th November, 2022, having been involved in a road traffic accident. The witness produced the Appellant’s treatment records as an exhibit.
27. The Respondent testified before the trial court and adopted the contents of his statement dated 4th June, 2024 as his evidence in chief.
28. In his statement, the Respondent stated that he was driving motor vehicle registration number KDJ 405P on 25th November, 2022 towards Kisumu general direction from Ahero general direction and that at Masogo area, a pedal cyclist suddenly emerged from a rough road on his left and joined the main road without first ensuring that it was safe to do so. The Respondent’s position was that the rider was wholly to blame for the accident.
29. The Respondent stated that the rider, who had earphones on, crashed onto the left rear side of his vehicle. The Respondent took the rider – the Appellant – to hospital and paid Ksh.5,000/- for his medical treatment.
30. On being cross examined, the Respondent stated that the accident occurred on the main highway.
31. The Respondent produced a second medical opinion/report that was prepared by Dr. Z. Gaya, upon examining the Appellant on 7th June, 2024.
32. In the trial court’s judgement rendered on 4th July, 2024, the learned Adjudicator addressed herself on the issue of liability as follows:
“5. On liability the claimant stated that he was riding his bicycle headed to Kisumu general direction when he was hit. He stated that he had already joined the highway. He also stated that he did not have headphones on RW1 on the other hand stated that the claimant was joining the road and he did not wait for him to pass. He further stated that the claimant herein had ear phones.
6. From the said testimonies, the claimant alleged that that he was hit on the road from the back and the respondent on the other hand stated that the claimant was in the process of 10 joining the road. There was no other witness that was called by the parties to corroborate or justify the different views on how the accident happened.
7. In the case of Eliud Papoi Papa v Jigneshkumar Rameshbai Patel & another [2017] eKLR (High Court of Kenya at Naivasha Civil Case No. 23 of 2015) where she stated as follows:
“Thus, the court is confronted with conflicting and irreconcilable evidence regarding how the collision occurred and which driver is to blame. It is true that under Section 107 of the Evidence Act the Plaintiff was obligated to prove his allegations of negligence against the Defendants. However, the existence of conflicting versions on the collision does not necessarily mean that nobody was liable; a collision involving two vehicles almost always involves fault on the part of one or both drivers....”
8. The Plaintiff's and Defendant's account of the accident was equally doubtful. Of the collision however, there is no dispute. In the circumstances, and based on the decision o he Court of Appeal in Hussein Omar Farah and Anne Wambui Ndiritu, I must find that the claimant and the respondent equally contributed for the accident.
9. In the present case, I am persuaded that this is the correct principle to apply. It is clear that a collision occurred and the claimant sustained serious injuries following the collision. However, of the two dueling accounts of the collision, it is not possible to determine which one is more plausible or to determine which of the two drivers is more blameworthy. Faced with these two conflicting accounts, I split the liability equally. Liability will be apportioned at 50% each between the claimant and the respondent.”
33. With that, the learned Adjudicator found the parties to be equally liable for the accident and proceeded to assess general damages at Ksh.200,000/-, subject to apportionment. No award of special damages was made.
34. The present appeal was canvassed by way of written submissions. I have had the occasion of perusing and carefully considering the submissions by the two sides. The appeal as presented is limited to the issue of liability and special damages.
35. The first issue for determination is whether the trial court correctly apportioned liability between the parties. The second issue relates to the award of special damages and costs. The third issue is whether the Appellant is entitled to costs of this appeal, having regard to the findings on liability and any award of damages.
36. Now to the first issue, which is that of liability, the same involves examining whether the Appellant and Respondent each contributed equally to the accident, or whether the evidence demonstrates that the Respondent was solely or primarily negligent, thereby attracting full liability for the injuries sustained by the Appellant.
37. In determining this issue, I will consider the conflicting accounts of how the collision occurred and assess the credibility and sufficiency of the evidence presented at trial.
38. In tortious liability claims such as the present one, the Appellant bears the burden of proving, on a balance of probabilities, that the Respondent owed him a duty of care which was breached and that the breach caused the accident and his injuries. This is a fundamental principle in Section 107 of the Evidence Act, Cap 80.
39. Under this standard, a trial court must evaluate all competing versions of events and decide which account is more probable based on the totality of evidence.
40. Where evidence is conflicting and irreconcilable, an appellate court will only disturb a trial court’s finding on liability if there is an error in principle or the apportionment is manifestly erroneous. Where there is conflicting testimony about how a collision occurred, a trial court is entitled to assess credibility and make findings based on the balance of probabilities.
41. Additionally, established authority in Lakhamshi v Attorney General [1971] EA 118, the court held that where it is not possible to distinguish fault between parties on the evidence, then a 50:50 apportionment is proper rather than attributing sole fault to one party.
42. In the circumstances of this appeal, the testimony of the two sides before the trial court was directly at odds. The Appellant claimed the Respondent’s vehicle hit him from behind while he was already on the highway, whereas the Respondent maintained that the Appellant suddenly emerged from a feeder road into his path. Neither version was supported by credible independent evidence or eyewitness testimony that would allow the trial court to resolve the conflict decisively in favour of one party. In such a situation, equal apportionment where the conflict remains unresolved on the evidence is apt, due to conflicting evidence of causation, as was held in Lakhamshi.
43. There is therefore no indication that the learned Adjudicator misapplied the law in reaching the 50:50 liability apportionment. She considered the parties’ competing evidence and recognized the absence of independent proof to corroborate either account. The learned Adjudicator did not err in law or principle, in the premises.
44. The second issue is in respect of the Appellant’s claim for special damages totaling Ksh.20,550/-, comprising Ksh.550/- for a search on the motor vehicle, Ksh.10,000/- for medical expenses and Ksh.6,500/- for a medical report.
45. In addressing this issue, I am required to determine whether the Appellant is entitled to the special damages claimed, namely expenses for search on the motor vehicle, medical treatment, and medical report, totaling Ksh.20,550/-, which were pleaded and evidenced before the trial court.
46. In law, special damages must be specifically pleaded and proved and the claimant bears the burden of showing that the losses were reasonably incurred as a direct result of the Respondent’s negligence.
47. In the present case, the Appellant produced receipts and medical records in support of these claims, which were not disputed by the Respondent. Evidence before the trial court and on appeal shows that the Respondent voluntarily contributed Ksh.5,000/- towards the Appellant’s medical treatment at the hospital. This payment is a credit against the total special damages claimed.
48. Accordingly, the net special damages recoverable by the Appellant amount to Ksh.15,550/-, being the total pleaded and proved sum of Ksh.20,550/- less the Ksh.5,000/- already paid by the Respondent. There was no basis for the learned Adjudicator to wholly disallow the same.
49. The award on special damages will however be subject to the trial court’s finding on apportionment of liability. The same shall attract interest at court rates from the date of filing suit.
50. I will therefore allow the appeal only to the extent of my findings above on special damages. The appeal on liability lacks merit and fails.
51. With respect to costs, which is the third issue for determination, the general rule under Section 27 of the Civil Procedure Act is that costs follow the event unless the court orders otherwise.
52. Given that the Appellant has only succeeded in part on the issue of special damages, I order that each party shall bears their own costs of the appeal. The finding on costs in the trial court shall remain undisturbed.
53. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 26th day of February, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: Ms. Aluang’a for Mr. Odhiambo.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Ms. Aluang’a: I seek 30 days stay for the Respondent to make arrangements on payment.
Court: There shall be 30 days stay of execution.
JOE M. OMIDO
JUDGE