(Being an appeal from the judgment and decree delivered by Hon. L. A Mumassabba (Principal Magistrate) on 29th May 2024 in Milimani Commercial Courts MCCC No. E694 of 2021)
1. The appellants filed this appeal through a memorandum dated 24th June 2024. The appeal is on one issue only, the apportionment of liability in a claim for general and special damages for personal injuries arising out of a road traffic accident.
2. The appellants were the defendants while the respondent was the plaintiff before the trial court.
3. At the trial, the respondent Charles Chacha testified as PW 3 and called two other witnesses. PW 1, Dr. Rodger Hannington Kayo who produced the medical report dated 7th September 2020 on his examination of the respondent, the injuries he sustained, the treatment received and the doctor’s assessment of the seriousness of the injuries. PW 2, PC Joseph Wachira, the investigating officer in the case from Industrial Area police station and who produced the police abstract issued in the matter following the accident.
4. The respondent adopted his written witness statement dated 30th November 2020 and filed alongside the plaint in which he stated the manner in which the accident occurred as captioned below:
“It was on 02/06/2020 when I was riding motor cycle registration number KMFC 522V along Mombasa road heading to South C and as I was at around Industrial Area police station when motor vehicle registration number KCB 609U abruptly joined the main road ahead of me from the opposite direction suddenly joined a feeder road without indicating and I rammed on it and consequently I was thrown to the drainage.”
5. It is not immediately clear from this statement whether the appellants’ vehicle was joining the main road or was joining a feeder road from the main road. Each scenario would create a different set of circumstances on the causation of the accident. Croos-examination did not elicit any better clarity on what exactly happened.
6. PW 3, the police officer produced the police abstract dated 5th June 2020 issued after the accident was reported at the police station. Despite saying that he was the investigating officer of the case and that he went to the scene after the accident, PW 2 said absolutely nothing about his investigations of how the accident occurred. In fact, in cross-examination, he said that he could not even tell the point where the motor cycle hit the car. His evidence was only to produce the police abstract which showed that the matter was pending under investigations (PUI) without any indication of why the investigations had not been concluded.
7. The respondent also adopted and produced as exhibits the documents as listed in his list dated 30th November 2020. Other than the police abstract produced by the police officer the rest of the documents are not quite relevant for this appeal considering that the occurrence of the accident as not in dispute.
8. The appellants on their part called one witness, DW 1, Thomas Benedict Owuor Owino, the 1st appellant who was the driver of the vehicle registration number KCB 609U. He adopted his witness statement dated 27th April 2022. His evidence was that he was driving the said motor vehicle along Likoni road heading towards the Mombasa Road general -direction. On reaching at the junction of Road A just a few meters to Winners chapel church a vehicle that was driving ahead of him slowed down abruptly and made a U turn to join Road A without indicating. He also had to slow down and his motor vehicle brake lights were working well. In the process, he heard an impact from the rear end of his car. He stopped and realized that if was a motorcycle that was being ridden by the respondent that had hit him and the respondent, who did not have a helmet on had fallen in a ditch. His vehicle’s rear offside lamp had been damaged in the process. Police officers came to the scene after about one and half hours and processed it. According to the 1st appellant, the rider was to blame for the accident for hitting his motor vehicle from behind.
9. After trial the learned trial magistrate in her judgment found the appellants wholly liable for the accident and awarded the respondent general damages for pain, suffering and loss of amenities of KShs 180,000/=, special damages of KShs 3,650/=.
10. The appellants were dissatisfied with that decision on liability and have filed the present appeal based on five grounds as follows:
a. The Learned trial Magistrate misdirected herself and erred both in law and in fact by holding the Appellants 100% liable for the accident whereas evidence on record called for dismissal of the suit on liability or a higher degree of contribution from the Respondent and thus arrived at an erroneous finding on liability.
b. The Learned trial Magistrate misdirected herself and erred in law and in fact by failing to find that it was the Respondent who knocked the Appellants’ motor vehicle from the rear and thus arrived at a finding on liability that is erroneous.
c. The Learned trial Magistrate misdirected herself and erred in law and in fact by failing to dismiss the Respondent's suit in the lower Court in view of the evidence tendered before her.
d. The Learned trial Magistrate misdirected herself and erred in law and in fact by failing to find a greater contributory negligence against the Respondent though there was sufficient and uncontroverted evidence to warrant the same
11. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court and substitute it with an order dismissing the respondent’s suit in the trial court or the court to grant any other just relief.
12. The appeal was canvassed by way of written submissions filed by both parties which are considered in the analysis that follows.
13. This being a first appeal, the duty of this court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
14. I have considered the grounds of appeal and the record of appeal filed herein together with the submissions by learned counsels. The issue for determination based on the grounds of appeal and the submissions by learned counsels for the parties is whether or not the learned trial magistrate properly evaluated the evidence before her and acted on correct principles and arrived at the correct conclusion on the issues of liability.
15. The appellant’s submissions seem to be mixed up on the twin issues of assessment of liability and damages. As stated in the introductory paragraph above, the appeal was based on grounds of liability only. The introductory paragraph of the memorandum of appeal states as follows:
“We, Cherry Interior and Owino Thomas, being dissatisfied with the judgment of Honourable L. A. Mumassabba (Principal Magistrate) delivered on 29th day of May 2024 in Milimani CMCC No. E694 of 2021 hereby appeal against the whole of the said judgment on liability on the following grounds:”
16. It is apparent from that introductory paragraph that the appeal is on liability only.
17. Secondly, all the grounds as set out and reproduced word for word above are only on liability and do not challenge the trial court’s findings on assessment of damages. Similarly, the prayers are only that the judgment of the trial court on liability be set aside.
18. It has been severally held by the courts that cases are decided on the basis of the pleadings, the evidence and the law and submissions cannot replace pleadings. The Court of Appeal emphasized this principle in the case of Kinuthia (Through the Administrators of his Estate) & 2 others v Anyanga & 4 others [2024] KECA 1930 (KLR) where it stated that:
“Submissions cannot replace pleadings! Cases are determined on the basis of the parties pleadings, the evidence led or adduced, and the applicable law.”
19. I think this position can be extrapolated to appeals for the position that an appeal can only be determined based on the grounds set out in the memorandum and no more.
20. Interestingly the opening paragraph of the submissions by the appellant seems to suggest that the appeal is only on the assessment of damages. The body of the submissions is however on both liability and assessment of damages. Even as this court is called upon to evaluate the entire case before the trial court and arrive at its own findings and conclusions, the same can only be limited to the issues challenged on appeal through the grounds set out in the memorandum.
21. I therefore find that the submission on assessment of damages are otiose and do not fall for determination by this court.
22. The appellant submits that the respondent failed to maintain a proper distance hence occasioning the accident and therefore should have been held wholly to blame. Learned counsel submits that from the evidence adduced by the respondent and the 1st appellant that the respondent carelessly rode onto the road in utter disregard of the traffic laws and codes and his own safety. Further that it is a known road principle that every road user should keep a look out for other road users. According to learned counsel, the respondent ignored this simple yet crucial road principle resulting in the said accident. Learned counsel supported his submission with the case of Patrick Mutie Kimau & another v Judy Wambui Ndurumo [1997] KECA 60 (KLR) where the Court of Appeal stated that:
“... we think it necessary to emphasizes the statement in paragraph 186 of Charlesworth on Negligence, Third Edition which is as follows:
“A pedestrian owes a duty to other highway users to move with due care.””
23. Learned counsel further relies on the case of Commercial Transporters Limited v Registered Trustees of the Catholic Archdiocese of Mombasa [2015] KEHC 509 (KLR) where the High Court held that:
“Both drivers ought to have exercised due diligence in their driving bearing in mind that they were both in control of lethal machines. In the circumstances it is only fair that liability be shared between the drivers. I find fortification in the Court of Appeal decision in Hussein Omar Farah v Lento Agencies Civil Appeal 34 of 2005[2006] eKLR cited by the Plaintiff where the court held that where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally liable. In the circumstances, I apportion liability at the ratio of 50:50 between the drivers of the two vehicles.”
24. The other decisions cited reinforce the same point.
25. Learned counsel for the respondent on his part supports the findings of the trial court that the appellants were wholly to blame for the accident.
26. Learned counsel submits that the respondent’s evidence on the occurrence of the accident was unshaken and was corroborated by the police officer while that of the driver of the vehicle was not corroborated. I am afraid I do not agree. As observed above, the evidence by PW 2 had no value addition or subtraction to the case at all. Therefore, the only evidence available for consideration was that of the motorcyclist and the driver.
27. Learned counsel for the respondent submits that the 1st appellant blamed the driver of an unknown motor vehicle that was ahead of him for suddenly stopping at the junction of Road A without indicating and as such, forcing him to suddenly brake and hence causing the accident. I think to say that the 1st appellant blamed the driver who was ahead of him is to misapprehend what the evidence was. For me, the 1st appellant only stated what happened. He thus conceded that circumstances ahead of him forced him to brake suddenly. But he never for once blamed the occurrence of the collision between the motor cycle and his vehicle upon the other driver. He clearly said that he blamed the rider of the motor cycle for failing to keep a safe distance, failing to have a proper look out, failing to wear a helmet and riding the motor on the road while not in possession of a driving licence.
28. This court is called upon to consider the evidence and overturn the findings of the trial court on the basis that it did not make a correct finding that the respondent had proved his case on a balance of probability. While considering this issue I am guided by the case of Mwangi & another v Wambugu [1984] KECA 13 (KLR) where the Court of Appeal, Kneller, J.A. held that:
“The law on this used to be that, there should be no interference by this court with the findings of fact about the contribution to an accident by two or more negligent drivers, save in exceptional circumstances, because this is an individual choice or exercise of a discretion. British Fame (Owners) v MacGregor (Owners), [1943] 1 A11 ER 33. Sir Ronald Sinclair, P in Shariff v Sethna, [1963] EA 239, 249 (CA-K). Where the trial judge has found, however, that there is no contribution, this court should not interfere unless satisfied, he was wrong, but if satisfied, then this court has a duty to interfere and it is not restricted to exceptional cases. Sir Charles Newbold, P in Karis v Solanki, [1969] EA 319, 320 (CA-K).
A member of an appellate court, is not bound to accept the learned judge’s findings of fact, if it appears either that, (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or, (b) if the impression based on the demeanour of a witness, is inconsistent with the evidence in the case generally.”
29. In the same judgment, Hancox, J. held that:
“A Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did.”
30. It follows from the decisions above that the trial court is best placed to determine issues of fact as it is in a position to weigh who between the two competing sides is the more credible witness than the other. However, where circumstances as outlined in the decisions above show that the trial court was wrong in its determination then this court has a duty to interfere with that finding.
31. I find from the evidence tendered by both the appellant and the respondent and the submissions by learned counsels before the trial court that it is common ground that the respondent’s motor cycle rammed into the appellants’ motor vehicle from the rear end. Each party blames the other for the accident. The respondent’s position was that he did ram into the appellants’ rear end of their vehicle because the driver begun to turn into a side road suddenly without indicating. The driver on his part agreed that he stopped suddenly because in fact the vehicle ahead of him was the one that stopped to turn into the side road.
32. The Court of Appeal while considering a similar scenario in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) stated thus:
“The trial court found that the appellant was liable for the rear- end collision, as the appellant admitted to hitting the respondent’s vehicle. Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed the burden on the appellant to prove that the collision was not due to his negligence.”
33. From the above holding it is apparent that the respondent herein as the plaintiff before the trial court had both the burden to prove his case that the driver of the vehicle was to blame for the accident and at the same time to rebut the presumption that the rear-end collision of his motor cycle with the vehicle was not due to his negligence.
34. The learned trial magistrate in her judgment found that the respondent’s evidence that the accident occurred was corroborated by that of PW 2 by confirming the occurrence of the accident, visiting the scene and producing the police abstract to that effect. Indeed, the evidence of PW 2 was limited to the fact that the accident had occurred. But that issue was not in contention so his testifying on it did not help the respondent much. As I said earlier, the evidence of PW 2, the police officer did not touch on how the accident was caused.
35. The learned magistrate then found with respect to the evidence of the 1st appellant that his evidence that the accident was caused by the respondent was not corroborated. If the learned trial magistrate thought that the evidence of the 2nd appellant required corroboration, then she misdirected herself on the issue. First, that would seem to shift the burden of proof of the case to the 2nd defendant which was against the provisions of section 107(1) of the Evidence Act. Second, there is no such requirement in law that a defendant in a civil case needs to corroborate his evidence. Where there is corroboration, well and good, it bolsters the case for the defence but where there is none it cannot make the case for the defence any weaker than when the defendant testified alone like in the present case.
36. In the result, I find that the learned trial magistrate failed to take into account the presumption of causation of the accident against the respondent as is provided for under the common law and thereby failed to determine whether the respondent had sufficiently rebutted the said presumption.
37. As it were, the respondent did not offer sufficient explanation of why he failed to take any evasive action to avoid ramming his motor cycle into the rear end of the vehicle. His only position was that the vehicle abruptly started to turn into the side road without indicating. However, the law requires him to keep a safe distance from the vehicle ahead of him in order thah he may be able to anticipate such action as as occurred in this case. The presumption therefore remains that he was to blame for the accident ramming into the rear of the vehicle for the possible reason that he failed to keep a proper distance between himself and the 2nd appellant’s vehicle that was ahead of him. It is also highly probable that he was driving too fast in the circumstances such that it was not possible for him to brake in time and/or swerve in order to avoid the accident.
38. The learned trial magistrate also found that the 2nd appellant should have avoided the accident at all costs which was foreseeable and that he caused the accident since he was driving at a high speed and was not in a position to control the vehicle when he caused the accident. With all respect, these findings by the learned magistrate were not supported by the evidence on record. There was no evidence that the 2nd appellant was driving at high speed or that he failed to control the vehicle. The evidence by the respondent was that he stopped suddenly in order to turn into a side road. If anything, the rider should have been the one riding the motor cycle at high speed and then unable to brake in time and even steer it away from the vehicle and avoid ramming into its rear.
39. The learned trial magistrate also found that the 2nd appellant should have enjoined the alleged third party to the case to enable the court fully determine the issue of liability. It is apparent from this holding that the learned magistrate believed the 2nd appellant’s evidence that there was a third party. The 1st appellant had no issue with the third party driver since he had managed to stop his vehicle in time not to ram into the rear side. His problem was instead with the respondent who had rammed his motor cycle into the rear end of his vehicle.
40. The Court of Appeal emphasized in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) that legal causation must be determined by common sense and an analysis of the facts at hand. The Court of Appeal was citing with approval the English case of Stapley v Gypsum Mines Limited [1953] AC 663 at pg 668, where it was stated that:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection in a court of law as this question must be decided as a properly instructed and reasonable jury would decide it ...” and “...The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault but that if one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the fault of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
41. The facts at hand in this case were that the respondent rammed his motor cycle into the rear of the motor vehicle being driven by the 1st appellant. In that case, a presumption arose that the respondent was to blame for the accident. He was required to rebut that presumption with sufficient evidence which according to me he failed to do. In the circumstances, the inescapable conclusion is that he was to blame for the accident.
42. Consequently, I find that the appeal has merit and is hereby allowed on the issue of liability. The trial court’s finding that the appellant’s were liable for the accident is hereby set aside and substituted with a finding that the respondent failed to prove his case before the trial court on a balance of probability and the same ought to have been and is hereby dismissed with costs to the appellants.
43. Orders accordingly.
44. Delivered, dated and signed on the Virtual Platform, MicrosoftTeams this 3rd day of March 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Chengecha for the Appellants.
Sirma (Ms) h/b for Muhia for the Respondent.
Ummu: Court Assistant.
1. The appellants filed this appeal through a memorandum dated 24th June 2024. The appeal is on one issue only, the apportionment of liability in a claim for general and special damages for personal injuries arising out of a road traffic accident.
2. The appellants were the defendants while the respondent was the plaintiff before the trial court.
3. At the trial, the respondent Charles Chacha testified as PW 3 and called two other witnesses. PW 1, Dr. Rodger Hannington Kayo who produced the medical report dated 7th September 2020 on his examination of the respondent, the injuries he sustained, the treatment received and the doctor’s assessment of the seriousness of the injuries. PW 2, PC Joseph Wachira, the investigating officer in the case from Industrial Area police station and who produced the police abstract issued in the matter following the accident.
4. The respondent adopted his written witness statement dated 30th November 2020 and filed alongside the plaint in which he stated the manner in which the accident occurred as captioned below:
“It was on 02/06/2020 when I was riding motor cycle registration number KMFC 522V along Mombasa road heading to South C and as I was at around Industrial Area police station when motor vehicle registration number KCB 609U abruptly joined the main road ahead of me from the opposite direction suddenly joined a feeder road without indicating and I rammed on it and consequently I was thrown to the drainage.”
5. It is not immediately clear from this statement whether the appellants’ vehicle was joining the main road or was joining a feeder road from the main road. Each scenario would create a different set of circumstances on the causation of the accident. Croos-examination did not elicit any better clarity on what exactly happened.
6. PW 3, the police officer produced the police abstract dated 5th June 2020 issued after the accident was reported at the police station. Despite saying that he was the investigating officer of the case and that he went to the scene after the accident, PW 2 said absolutely nothing about his investigations of how the accident occurred. In fact, in cross-examination, he said that he could not even tell the point where the motor cycle hit the car. His evidence was only to produce the police abstract which showed that the matter was pending under investigations (PUI) without any indication of why the investigations had not been concluded.
7. The respondent also adopted and produced as exhibits the documents as listed in his list dated 30th November 2020. Other than the police abstract produced by the police officer the rest of the documents are not quite relevant for this appeal considering that the occurrence of the accident as not in dispute.
8. The appellants on their part called one witness, DW 1, Thomas Benedict Owuor Owino, the 1st appellant who was the driver of the vehicle registration number KCB 609U. He adopted his witness statement dated 27th April 2022. His evidence was that he was driving the said motor vehicle along Likoni road heading towards the Mombasa Road general -direction. On reaching at the junction of Road A just a few meters to Winners chapel church a vehicle that was driving ahead of him slowed down abruptly and made a U turn to join Road A without indicating. He also had to slow down and his motor vehicle brake lights were working well. In the process, he heard an impact from the rear end of his car. He stopped and realized that if was a motorcycle that was being ridden by the respondent that had hit him and the respondent, who did not have a helmet on had fallen in a ditch. His vehicle’s rear offside lamp had been damaged in the process. Police officers came to the scene after about one and half hours and processed it. According to the 1st appellant, the rider was to blame for the accident for hitting his motor vehicle from behind.
9. After trial the learned trial magistrate in her judgment found the appellants wholly liable for the accident and awarded the respondent general damages for pain, suffering and loss of amenities of KShs 180,000/=, special damages of KShs 3,650/=.
10. The appellants were dissatisfied with that decision on liability and have filed the present appeal based on five grounds as follows:
a. The Learned trial Magistrate misdirected herself and erred both in law and in fact by holding the Appellants 100% liable for the accident whereas evidence on record called for dismissal of the suit on liability or a higher degree of contribution from the Respondent and thus arrived at an erroneous finding on liability.
b. The Learned trial Magistrate misdirected herself and erred in law and in fact by failing to find that it was the Respondent who knocked the Appellants’ motor vehicle from the rear and thus arrived at a finding on liability that is erroneous.
c. The Learned trial Magistrate misdirected herself and erred in law and in fact by failing to dismiss the Respondent's suit in the lower Court in view of the evidence tendered before her.
d. The Learned trial Magistrate misdirected herself and erred in law and in fact by failing to find a greater contributory negligence against the Respondent though there was sufficient and uncontroverted evidence to warrant the same
11. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court and substitute it with an order dismissing the respondent’s suit in the trial court or the court to grant any other just relief.
12. The appeal was canvassed by way of written submissions filed by both parties which are considered in the analysis that follows.
13. This being a first appeal, the duty of this court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
14. I have considered the grounds of appeal and the record of appeal filed herein together with the submissions by learned counsels. The issue for determination based on the grounds of appeal and the submissions by learned counsels for the parties is whether or not the learned trial magistrate properly evaluated the evidence before her and acted on correct principles and arrived at the correct conclusion on the issues of liability.
15. The appellant’s submissions seem to be mixed up on the twin issues of assessment of liability and damages. As stated in the introductory paragraph above, the appeal was based on grounds of liability only. The introductory paragraph of the memorandum of appeal states as follows:
“We, Cherry Interior and Owino Thomas, being dissatisfied with the judgment of Honourable L. A. Mumassabba (Principal Magistrate) delivered on 29th day of May 2024 in Milimani CMCC No. E694 of 2021 hereby appeal against the whole of the said judgment on liability on the following grounds:”
16. It is apparent from that introductory paragraph that the appeal is on liability only.
17. Secondly, all the grounds as set out and reproduced word for word above are only on liability and do not challenge the trial court’s findings on assessment of damages. Similarly, the prayers are only that the judgment of the trial court on liability be set aside.
18. It has been severally held by the courts that cases are decided on the basis of the pleadings, the evidence and the law and submissions cannot replace pleadings. The Court of Appeal emphasized this principle in the case of Kinuthia (Through the Administrators of his Estate) & 2 others v Anyanga & 4 others [2024] KECA 1930 (KLR) where it stated that:
“Submissions cannot replace pleadings! Cases are determined on the basis of the parties pleadings, the evidence led or adduced, and the applicable law.”
19. I think this position can be extrapolated to appeals for the position that an appeal can only be determined based on the grounds set out in the memorandum and no more.
20. Interestingly the opening paragraph of the submissions by the appellant seems to suggest that the appeal is only on the assessment of damages. The body of the submissions is however on both liability and assessment of damages. Even as this court is called upon to evaluate the entire case before the trial court and arrive at its own findings and conclusions, the same can only be limited to the issues challenged on appeal through the grounds set out in the memorandum.
21. I therefore find that the submission on assessment of damages are otiose and do not fall for determination by this court.
22. The appellant submits that the respondent failed to maintain a proper distance hence occasioning the accident and therefore should have been held wholly to blame. Learned counsel submits that from the evidence adduced by the respondent and the 1st appellant that the respondent carelessly rode onto the road in utter disregard of the traffic laws and codes and his own safety. Further that it is a known road principle that every road user should keep a look out for other road users. According to learned counsel, the respondent ignored this simple yet crucial road principle resulting in the said accident. Learned counsel supported his submission with the case of Patrick Mutie Kimau & another v Judy Wambui Ndurumo [1997] KECA 60 (KLR) where the Court of Appeal stated that:
“... we think it necessary to emphasizes the statement in paragraph 186 of Charlesworth on Negligence, Third Edition which is as follows:
“A pedestrian owes a duty to other highway users to move with due care.””
23. Learned counsel further relies on the case of Commercial Transporters Limited v Registered Trustees of the Catholic Archdiocese of Mombasa [2015] KEHC 509 (KLR) where the High Court held that:
“Both drivers ought to have exercised due diligence in their driving bearing in mind that they were both in control of lethal machines. In the circumstances it is only fair that liability be shared between the drivers. I find fortification in the Court of Appeal decision in Hussein Omar Farah v Lento Agencies Civil Appeal 34 of 2005[2006] eKLR cited by the Plaintiff where the court held that where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally liable. In the circumstances, I apportion liability at the ratio of 50:50 between the drivers of the two vehicles.”
24. The other decisions cited reinforce the same point.
25. Learned counsel for the respondent on his part supports the findings of the trial court that the appellants were wholly to blame for the accident.
26. Learned counsel submits that the respondent’s evidence on the occurrence of the accident was unshaken and was corroborated by the police officer while that of the driver of the vehicle was not corroborated. I am afraid I do not agree. As observed above, the evidence by PW 2 had no value addition or subtraction to the case at all. Therefore, the only evidence available for consideration was that of the motorcyclist and the driver.
27. Learned counsel for the respondent submits that the 1st appellant blamed the driver of an unknown motor vehicle that was ahead of him for suddenly stopping at the junction of Road A without indicating and as such, forcing him to suddenly brake and hence causing the accident. I think to say that the 1st appellant blamed the driver who was ahead of him is to misapprehend what the evidence was. For me, the 1st appellant only stated what happened. He thus conceded that circumstances ahead of him forced him to brake suddenly. But he never for once blamed the occurrence of the collision between the motor cycle and his vehicle upon the other driver. He clearly said that he blamed the rider of the motor cycle for failing to keep a safe distance, failing to have a proper look out, failing to wear a helmet and riding the motor on the road while not in possession of a driving licence.
28. This court is called upon to consider the evidence and overturn the findings of the trial court on the basis that it did not make a correct finding that the respondent had proved his case on a balance of probability. While considering this issue I am guided by the case of Mwangi & another v Wambugu [1984] KECA 13 (KLR) where the Court of Appeal, Kneller, J.A. held that:
“The law on this used to be that, there should be no interference by this court with the findings of fact about the contribution to an accident by two or more negligent drivers, save in exceptional circumstances, because this is an individual choice or exercise of a discretion. British Fame (Owners) v MacGregor (Owners), [1943] 1 A11 ER 33. Sir Ronald Sinclair, P in Shariff v Sethna, [1963] EA 239, 249 (CA-K). Where the trial judge has found, however, that there is no contribution, this court should not interfere unless satisfied, he was wrong, but if satisfied, then this court has a duty to interfere and it is not restricted to exceptional cases. Sir Charles Newbold, P in Karis v Solanki, [1969] EA 319, 320 (CA-K).
A member of an appellate court, is not bound to accept the learned judge’s findings of fact, if it appears either that, (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or, (b) if the impression based on the demeanour of a witness, is inconsistent with the evidence in the case generally.”
29. In the same judgment, Hancox, J. held that:
“A Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did.”
30. It follows from the decisions above that the trial court is best placed to determine issues of fact as it is in a position to weigh who between the two competing sides is the more credible witness than the other. However, where circumstances as outlined in the decisions above show that the trial court was wrong in its determination then this court has a duty to interfere with that finding.
31. I find from the evidence tendered by both the appellant and the respondent and the submissions by learned counsels before the trial court that it is common ground that the respondent’s motor cycle rammed into the appellants’ motor vehicle from the rear end. Each party blames the other for the accident. The respondent’s position was that he did ram into the appellants’ rear end of their vehicle because the driver begun to turn into a side road suddenly without indicating. The driver on his part agreed that he stopped suddenly because in fact the vehicle ahead of him was the one that stopped to turn into the side road.
32. The Court of Appeal while considering a similar scenario in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) stated thus:
“The trial court found that the appellant was liable for the rear- end collision, as the appellant admitted to hitting the respondent’s vehicle. Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed the burden on the appellant to prove that the collision was not due to his negligence.”
33. From the above holding it is apparent that the respondent herein as the plaintiff before the trial court had both the burden to prove his case that the driver of the vehicle was to blame for the accident and at the same time to rebut the presumption that the rear-end collision of his motor cycle with the vehicle was not due to his negligence.
34. The learned trial magistrate in her judgment found that the respondent’s evidence that the accident occurred was corroborated by that of PW 2 by confirming the occurrence of the accident, visiting the scene and producing the police abstract to that effect. Indeed, the evidence of PW 2 was limited to the fact that the accident had occurred. But that issue was not in contention so his testifying on it did not help the respondent much. As I said earlier, the evidence of PW 2, the police officer did not touch on how the accident was caused.
35. The learned magistrate then found with respect to the evidence of the 1st appellant that his evidence that the accident was caused by the respondent was not corroborated. If the learned trial magistrate thought that the evidence of the 2nd appellant required corroboration, then she misdirected herself on the issue. First, that would seem to shift the burden of proof of the case to the 2nd defendant which was against the provisions of section 107(1) of the Evidence Act. Second, there is no such requirement in law that a defendant in a civil case needs to corroborate his evidence. Where there is corroboration, well and good, it bolsters the case for the defence but where there is none it cannot make the case for the defence any weaker than when the defendant testified alone like in the present case.
36. In the result, I find that the learned trial magistrate failed to take into account the presumption of causation of the accident against the respondent as is provided for under the common law and thereby failed to determine whether the respondent had sufficiently rebutted the said presumption.
37. As it were, the respondent did not offer sufficient explanation of why he failed to take any evasive action to avoid ramming his motor cycle into the rear end of the vehicle. His only position was that the vehicle abruptly started to turn into the side road without indicating. However, the law requires him to keep a safe distance from the vehicle ahead of him in order thah he may be able to anticipate such action as as occurred in this case. The presumption therefore remains that he was to blame for the accident ramming into the rear of the vehicle for the possible reason that he failed to keep a proper distance between himself and the 2nd appellant’s vehicle that was ahead of him. It is also highly probable that he was driving too fast in the circumstances such that it was not possible for him to brake in time and/or swerve in order to avoid the accident.
38. The learned trial magistrate also found that the 2nd appellant should have avoided the accident at all costs which was foreseeable and that he caused the accident since he was driving at a high speed and was not in a position to control the vehicle when he caused the accident. With all respect, these findings by the learned magistrate were not supported by the evidence on record. There was no evidence that the 2nd appellant was driving at high speed or that he failed to control the vehicle. The evidence by the respondent was that he stopped suddenly in order to turn into a side road. If anything, the rider should have been the one riding the motor cycle at high speed and then unable to brake in time and even steer it away from the vehicle and avoid ramming into its rear.
39. The learned trial magistrate also found that the 2nd appellant should have enjoined the alleged third party to the case to enable the court fully determine the issue of liability. It is apparent from this holding that the learned magistrate believed the 2nd appellant’s evidence that there was a third party. The 1st appellant had no issue with the third party driver since he had managed to stop his vehicle in time not to ram into the rear side. His problem was instead with the respondent who had rammed his motor cycle into the rear end of his vehicle.
40. The Court of Appeal emphasized in the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) that legal causation must be determined by common sense and an analysis of the facts at hand. The Court of Appeal was citing with approval the English case of Stapley v Gypsum Mines Limited [1953] AC 663 at pg 668, where it was stated that:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection in a court of law as this question must be decided as a properly instructed and reasonable jury would decide it ...” and “...The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault but that if one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the fault of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
41. The facts at hand in this case were that the respondent rammed his motor cycle into the rear of the motor vehicle being driven by the 1st appellant. In that case, a presumption arose that the respondent was to blame for the accident. He was required to rebut that presumption with sufficient evidence which according to me he failed to do. In the circumstances, the inescapable conclusion is that he was to blame for the accident.
42. Consequently, I find that the appeal has merit and is hereby allowed on the issue of liability. The trial court’s finding that the appellant’s were liable for the accident is hereby set aside and substituted with a finding that the respondent failed to prove his case before the trial court on a balance of probability and the same ought to have been and is hereby dismissed with costs to the appellants.
43. Orders accordingly.
44. Delivered, dated and signed on the Virtual Platform, MicrosoftTeams this 3rd day of March 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Chengecha for the Appellants.
Sirma (Ms) h/b for Muhia for the Respondent.
Ummu: Court Assistant.