[1] This appeal arises from the decision of the Senior Principal Magistrate in Oyugis Senior Principal Magistrate’s Civil Suit No. 83 of 2020: Everline Mwanzi Onsongo (suing as the Legal Representative of the Estate of Enock Agai Kopiyo, Deceased) v Dickson Moriasi Momanyi. The appellant had been sued in that case by the respondent in connection with a road traffic accident that occurred on or about the 28 th April 2019. In her Plaint dated 9 th March 2020, the respondent averred that the deceased was lawfully driving his Motor Vehicle Registration No. KBN 228U along Oyugis-Kisumu Road when he was involved in a fatal road accident at Atela area.
[2] The respondent had contended that the deceased was violently knocked by Motor Registration No. KCL 378K, Toyota Matatu , belonging to the appellant; and thereby sustained grievous injuries from which he succumbed on the spot. The respondent alleged negligence on the part of the driver of Motor Vehicle Registration No. KCL 378K and supplied particulars of negligence at paragraph 5 of the Plaint. The respondent also supplied particulars of damage to Motor Vehicle Registration No. KBN 228U as well as particulars of special damage. On the basis thereof, the respondent prayed for judgment against the defendant for:
[a] Pre-accident value of Motor Vehicle KBN 228U
[b] General damages
[c] Special damages
[d] Costs of the suit
[e] Interest on [a] and [b] above at court rates
[f] Any other relief the Court may deem fit and just to grant
[3] The appellant denied the respondent’s allegations vide their Statement of Defence dated 18 th February 2022. He denied that an accident occurred involving Motor Vehicles Registration No. KBN 228U and KCL 378K in the manner alleged by the respondent. He further denied the particulars of negligence and special damage, and put the respondent to strict proof thereof. He also denied that the respondent is entitled to compensation for loss of user per day.
[4] On the 5 th July 2023 the parties agreed to adopt the decision of the lower court on liability in Oyugis Senior Principal Magistrate’s Civil Case No. 20 of 2020 and on the basis of the evidence presented, they invited the lower court to assess the damages payable, if any. In its judgment dated 13 th September 2023 fixed liability at 100% in line with its decision in Civil Case No. 20 of 2020. It then assessed damages due as follows:
[a] Material damage to the deceased’s motor vehicle - Kshs. 350,000/=
[b] Special damages - Kshs. 6,000/=
[c] Less salvage value of the motor vehicle - Kshs. 50,000/=
Total award -Kshs. 306,000/=
[5] Being dissatisfied with the judgment of the subordinate court, the appellants filed this appeal on the following grounds:
[a] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the appellant’s submissions on both points of law and facts.
[b] THAT the learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
[c] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.
[d] THAI the learned trial magistrate erred in law and fact in failing to appreciate and understand the provisions of Section 8 of the Traffic Act, Cap 405 Laws of Kenya.
[e] THAT the learned magistrate erred in law and fact in finding the appellants 100% liable in view of the evidence produced before the trial Court.
[f] THAT the learned trial magistrate erred in law and fact in over relying on the Respondent's evidence and submissions.
[g] THAT the learned trial magistrate erred in venturing to have issues as core issues for determination of the case.
[h] THAT the learned trial magistrate erred in law and fact by allowing the respondent's claim which was not proved on the balance of probability required by law.
[i] THAT the learned trial magistrate erred in law and in fact in ignoring the appellant.
[j] THAT the learned trial magistrate's decision albeit a discretionary one was plainly wrong.
[6] It is proposed to ask the Court for the following Orders:
[a] THAT the Appeal be allowed in its entirety.
[b] THAT the respondent's suit in the subordinate court be dismissed with costs
[c] THAT the costs of this Appeal and that of the trial court be awarded to the Appellant.
[d] THAT such further orders may be made by this Honourable Court may deem fit to grant.
[7] The appeal was canvassed by way of written submissions. The appellant relied on his written submissions dated 30 th January 2026. He reiterated his written submissions filed in the trial court as appears at pages 22 - 27 of the Record of Appeal in determining this appeal. On liability, the appellant urged the Court to find, on the basis of the evidence adduced before the lower court, that there was no proof that the driver of Motor Vehicle Registration No. KCL 378K was responsible for the accident. He summarized the evidence of the respondent, Everline Onsongo (PW4) and pointed out that since she did not witness the accident and only received the call regarding the accident via a phone call, she did not testify as to how the accident happened.
[8] The appellant also impugned the evidence of Bernard Odhiambo (PW2) contending that, although he testified and blamed the driver of motor vehicle registration number KCL 378K for causing the accident, he conceded in cross-examination that he did not record a statement with the police. Accordingly, the appellant urged the Court to conclude that there was no evidence to find it doubtful that PW2 witnessed the accident.
[9] The appellant underscored the evidence of his witness, PC Lenard Mammao Asoma who testified before the lower court and produced the police abstract indicating that the matter was pending under investigations. The appellant pointed out that, in his evidence, DW1 conceded in cross-examination that they did not manage to get an independent witnesses or an eye witness and therefore no charges could be preferred against the driver of motor vehicle motor vehicle KCL 378K, who also testified as DW2 and denied having been responsible for the collision.
[10] On the basis of the foregoing, the appellant contended that the finding of the lower court on liability was not supported by the evidence presented. He posited that at the very least, the learned magistrate ought to have apportioned liability at 50:50 as between the two drivers. He relied on Mohammed Kassim & 2 others v Salim Fumo Bwanamkuu [2019] eKLR and urged the Court to find that the accident was attributable to the recklessness of the deceased.
[11] The appellant further submitted that, when confronted with situations of inconclusive evidence of causation courts prefer to apportion liability at 50:50. He relied on Robert Collins Murimi v Benson Njihia Kamau (Suing as the legal representative of the estate of Veronica Nunu Jihia-Deceased) [2017] eKLR and Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2019] eKLR, to support his argument that equal apportionment of liability would have been fair and reasonable based on the police abstract report, as there was no independent witness to have the court persuaded to arrive at a different conclusion.
[12] On quantum, the appellant submitted that since the assessment report indicated that the salvage value of the vehicle is Kshs. 50,000/=, it was incumbent on the respondent to mitigate her losses. He further discounted the sale agreement contending that the court had to take into account that the motor vehicle must have depreciated from the date of the sale. The appellant relied on Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR.
[13] The appellant conceded that the assessor gave details of the parts of the respondent's vehicle which were damaged and against each item he did assign a value. He therefore had no objection to the award for material damage by the lower court being by this Court. He however prayed for his appeal on liability to be upheld with costs.
[14] In her written submissions dated 11 th November 2025, the respondents proposed only one issue for determination, namely, whether or not the appeal as filed has merit. He relied on Jimnah Munene Macharia v John Kamau Erara , Civil Appeal No. 218 of 1998 and Bungoma Line Sacco Society Limited v Super Hardware (K) Ltd [2021] eKLR for the proposition that where there is no proof of actual repair the plaintiff is only entitled to pre-accident value less the salvage as repair would not be economically viable. The respondent also relied on the decision of the Court of Appeal in Concord Insurance Company v David Otieno Awinyo & another [2005] eKLR where the court while discussing the measure or damage to chattels agreed with the decision of Herman LJ in Derbyshire v Waran [1963] I WLR 1067 at page 1070 that:
“The principle is that of restitution integrum, that is to say, to put the plaintiff in the same position as though the damage never happened. It has come to be settled that in general the measure of damages is the cost of repairing the damaged article, but there is an exception if it can be proved that the cost of repairs of the damaged article greatly exceeds the value in the market of the damaged article. This arises out of the plaintiffs duty to minimize his damage…"
[15] In the premises, the respondent urged the Court to find that the learned magistrate considered all the testimonies and the evidence as presented and reached a decision which was fair in the circumstances. She prayed for the dismissal of the appeal with costs.
[16] The duty of the first appellant court was well stated in Selle v Associated Motor Boat Co. [1968] EA 123 where the Court of Appeal held:
“ The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally.”
[17] The record of the lower court shows that the respondent testified on 5 th July 2023 as PW4. She adopted her witness statement dated 9 th March 2019 as her evidence. She told the court that the deceased, Enock Agai Kopiyo, was her husband and that he owned Motor Vehicle Registration No. KBN 228V. The respondent further testified that the deceased died from injuries suffered in a road traffic accident while driving the said motor vehicle along the Oyugis-Kisumu Road on the 28 th April 2019. She explained that the accident occurred next to her gate and that the motor vehicle was towed to Oyugis Police Station. The extent of damage was later assessed and the motor vehicle declared a write-off, with a salvage value of Kshs. 50,000/=.
[18] Among the documents produced by the respondent as exhibits were the Certificate of Death in respect of her husband, Grant of Letters of Administration Ad Litem, Demand Notice and a Copy of the Record held by the National Transport and Safety Authority pertaining to Motor Vehicle Registration No. KCL 378K. She prayed for compensation in respect of the damaged motor vehicle, contending that it was being used to transport her children to school. She also prayed for loss of user at Kshs. 1,000/= per day for 6 months as well as costs of the suit.
[19] The respondent called Caleb Ochieng Oyugi (PW1), a motor vehicle assessor working with Regent Automobile Valuers at the Kisii Branch. His testimony was that he received instructions from the respondent to undertake an assessment of Motor Vehicle Registration No. KBN 228V, a private saloon car which had been involved in a road traffic accident. He confirmed that he carried out the assessment and prepared a report in which he assessed the pre-accident value of the motor vehicle at Kshs. 300,000/= and the salvage value at Kshs. 50,000/=. He also stated that they charged the respondent Kshs. 6,000/= for their services. He produced the Assessment Report before the lower court.
[20] The respondent’s second witness was PC Lenard Mammao Asoma (PW2), a police officer who was then attached to Oyugis Police Station on traffic duties. He testified that an accident occurred on 28 th April 2019 at Atela near Chabera; and that the accident was brought to their attention. He further confirmed that the accident involved two motor vehicles, namely Motor Vehicle Registration No. KCL 378K, Matatu and a saloon car Registration No. KBN 228U. PW2 further confirmed that he visited the scene with Sgt. Kerosi and did all that was necessary. He added that, from the observations made at the scene, the saloon car was moving towards Oyugis direction whereas the Matatu was headed for Kisumu.
[21] PW2 confirmed that the driver of the saloon car, Registration No. KBN 228U called Enock Agai Opiyo , died as a result of the accident and that the motor vehicle he was driving was extensively damaged. He produced the police abstract as well as the inspection reports for the subject motor vehicles as exhibits before the lower court.
[22] Bernard Odhiambo (PW3) told the lower court that he was at Atela Primary School on 28 th April 2019 and was a witness to the subject accident involving Motor Vehicles Registration Nos KBN 228U and KCL 378K. His evidence was that the driver of Motor Vehicle Registration No. KCL 378K was to blame for the accident. He explained that the driver was competing for passengers with the driver of another matatu at a high speed; and that he jumped over a road bump as he was overtaking and hit the oncoming vehicle No. KBN 228U.
[23] Upon closure of the plaintiff’s case, the parties recorded a consent on the 5 th July 2023 to the effect that the decision of the court on liability in Oyugis Principal Magistrate’s Civil Case No. 20 of 2020 be adopted in the subject suit No. 83 of 2020; a suit between the same parties. In that case, the lower court found the appellant 100% liable in respect of the same accident.
[24] Needless to mention that, in terms of Section 107(1) of the Evidence Act, CAP 80, the legal burden of proof was on the respondent as the plaintiff before the lower court. That provision is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[25] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[26] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, held:
“The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[27] From the foregoing summary, and having considered the appellant’s Grounds of Appeal and the written submissions filed herein as well as the proceedings it is common ground that an accident occurred on the 28 th April 2019 involving a Toyota Matatu Registration No. KCL 378K and Nissan Saloon Registration No. KBN 228U. The parties are also in agreement that, as a result of that collision that the deceased, Enock Agai Kopiyo , sustained grievous injuries from which he succumbed. Hence, the issues for re-evaluation herein are:
[a] Whether the learned magistrate erred in fixing liability at 100% as against the appellant.
[b] Whether the learned magistrate erred in assessing damages payable to the estate of the deceased for the damages occasioned to Motor Vehicle Registration No. KBN 228U.
A. On Liability:
[28] As has been pointed out herein above, the parties agreed that liability be settled in Oyugis Senior Magistrate’s Civil Case No. 20 of 2020 . Having dismissed the appellant’s appeal on liability in that test case, the lower court’s decision on liability in respect of this appeal is hereby upheld at 100% as against the appellant.
B. On the award for material damage to the deceased’s motor vehicle Registration No. KBN 228U:
[29] Under this head, the lower court awarded Kshs. 300,000/= to the respondent. The award was premised on the evidence of the investigating officer, PW2. PW2 visited the scene soon after the accident and confirmed that the deceased’s motor vehicle was indeed extensively damaged. He produced the Police Abstract marked the Plaintiff’s Exhibit 2 before the lower court along with photographs of Motor Vehicle Registration No. KBN 228U in its accident state. That evidence was not controverted.
[30] The respondent also presented uncontroverted evidence through PW3 that the deceased’s motor vehicle was a complete write-off. In the Accident Assessment Report dated 28 th November 2019, PW3 listed all the damaged parts of the subject vehicle and concluded that repairs to bring it back to its pre-accident condition would be uneconomical. He consequently recommended that it be treated as a total loss. He also assessed its pre-accident value at Kshs. 350,000/= and a salvage value of Kshs. 50,000/=. That was credible and acceptable evidence, especially in cases, such as this, where repair is uneconomical.
[31] In Nkuene Dairy Farmers Co-op Society Ltd & Another v Ngacha Ndeiya [2010] eKLR the Court of Appeal held:
“Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are common items and any price which the assessor might have given could be counterchecked and either accepted or disproved. The Appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor’s report. The experience of the Assessor was not challenged…The Respondent, to our mind, particularized his claim in the plaint and called acceptable evidence to prove the same and we have no basis for faulting both the trial and first appellate courts in the concurrent decision they came to. Indeed the decision of David Bagine vs. Martin Bundi Civil Appeal No. 283 of 1996 which Mr. Kaburu cited to us, does state that a motor vehicle Assessor’s report would provide acceptable evidence to prove the value of material damage to a motor vehicle…We agree with Mr. Charles Kariuki that the Assessor’s report was sufficient proof and the failure to produce receipts for any repairs done was not fatal to the respondent’s claim…”
[32] Consequently, although the appellant denied the particulars of material damage to the deceased motor vehicle, no evidence was presented to rebut the respondent’s evidence. Indeed, in his written submissions the appellant conceded at paragraph 18 that the assessor gave details of the parts of the respondent's vehicle which were damaged and therefore he had no objection to the award for material damage by the lower court being upheld by this Court. I therefore find no basis for interfering with the material damage award of Kshs. 300,000/= made by the lower court.
[33] The sum of Kshs. 6,000/= claimed as a special damages item was proved by the Assessor’s receipt marked the Plaintiff’s Exhibit 1(b). I therefore find no basis for interfering with the lower court’s award of Kshs. 306,000/=.
[34] In the result, I find no merit in the appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED AND SIGNED AND DELIVERED VIRTUALLY THIS 10 TH DAY OF SEPTEMBER 2026
[2] The respondent had contended that the deceased was violently knocked by Motor Registration No. KCL 378K, Toyota Matatu , belonging to the appellant; and thereby sustained grievous injuries from which he succumbed on the spot. The respondent alleged negligence on the part of the driver of Motor Vehicle Registration No. KCL 378K and supplied particulars of negligence at paragraph 5 of the Plaint. The respondent also supplied particulars of damage to Motor Vehicle Registration No. KBN 228U as well as particulars of special damage. On the basis thereof, the respondent prayed for judgment against the defendant for:
[a] Pre-accident value of Motor Vehicle KBN 228U
[b] General damages
[c] Special damages
[d] Costs of the suit
[e] Interest on [a] and [b] above at court rates
[f] Any other relief the Court may deem fit and just to grant
[3] The appellant denied the respondent’s allegations vide their Statement of Defence dated 18 th February 2022. He denied that an accident occurred involving Motor Vehicles Registration No. KBN 228U and KCL 378K in the manner alleged by the respondent. He further denied the particulars of negligence and special damage, and put the respondent to strict proof thereof. He also denied that the respondent is entitled to compensation for loss of user per day.
[4] On the 5 th July 2023 the parties agreed to adopt the decision of the lower court on liability in Oyugis Senior Principal Magistrate’s Civil Case No. 20 of 2020 and on the basis of the evidence presented, they invited the lower court to assess the damages payable, if any. In its judgment dated 13 th September 2023 fixed liability at 100% in line with its decision in Civil Case No. 20 of 2020. It then assessed damages due as follows:
[a] Material damage to the deceased’s motor vehicle - Kshs. 350,000/=
[b] Special damages - Kshs. 6,000/=
[c] Less salvage value of the motor vehicle - Kshs. 50,000/=
Total award -Kshs. 306,000/=
[5] Being dissatisfied with the judgment of the subordinate court, the appellants filed this appeal on the following grounds:
[a] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the appellant’s submissions on both points of law and facts.
[b] THAT the learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
[c] THAT the learned magistrate erred in law and misdirected himself when he failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.
[d] THAI the learned trial magistrate erred in law and fact in failing to appreciate and understand the provisions of Section 8 of the Traffic Act, Cap 405 Laws of Kenya.
[e] THAT the learned magistrate erred in law and fact in finding the appellants 100% liable in view of the evidence produced before the trial Court.
[f] THAT the learned trial magistrate erred in law and fact in over relying on the Respondent's evidence and submissions.
[g] THAT the learned trial magistrate erred in venturing to have issues as core issues for determination of the case.
[h] THAT the learned trial magistrate erred in law and fact by allowing the respondent's claim which was not proved on the balance of probability required by law.
[i] THAT the learned trial magistrate erred in law and in fact in ignoring the appellant.
[j] THAT the learned trial magistrate's decision albeit a discretionary one was plainly wrong.
[6] It is proposed to ask the Court for the following Orders:
[a] THAT the Appeal be allowed in its entirety.
[b] THAT the respondent's suit in the subordinate court be dismissed with costs
[c] THAT the costs of this Appeal and that of the trial court be awarded to the Appellant.
[d] THAT such further orders may be made by this Honourable Court may deem fit to grant.
[7] The appeal was canvassed by way of written submissions. The appellant relied on his written submissions dated 30 th January 2026. He reiterated his written submissions filed in the trial court as appears at pages 22 - 27 of the Record of Appeal in determining this appeal. On liability, the appellant urged the Court to find, on the basis of the evidence adduced before the lower court, that there was no proof that the driver of Motor Vehicle Registration No. KCL 378K was responsible for the accident. He summarized the evidence of the respondent, Everline Onsongo (PW4) and pointed out that since she did not witness the accident and only received the call regarding the accident via a phone call, she did not testify as to how the accident happened.
[8] The appellant also impugned the evidence of Bernard Odhiambo (PW2) contending that, although he testified and blamed the driver of motor vehicle registration number KCL 378K for causing the accident, he conceded in cross-examination that he did not record a statement with the police. Accordingly, the appellant urged the Court to conclude that there was no evidence to find it doubtful that PW2 witnessed the accident.
[9] The appellant underscored the evidence of his witness, PC Lenard Mammao Asoma who testified before the lower court and produced the police abstract indicating that the matter was pending under investigations. The appellant pointed out that, in his evidence, DW1 conceded in cross-examination that they did not manage to get an independent witnesses or an eye witness and therefore no charges could be preferred against the driver of motor vehicle motor vehicle KCL 378K, who also testified as DW2 and denied having been responsible for the collision.
[10] On the basis of the foregoing, the appellant contended that the finding of the lower court on liability was not supported by the evidence presented. He posited that at the very least, the learned magistrate ought to have apportioned liability at 50:50 as between the two drivers. He relied on Mohammed Kassim & 2 others v Salim Fumo Bwanamkuu [2019] eKLR and urged the Court to find that the accident was attributable to the recklessness of the deceased.
[11] The appellant further submitted that, when confronted with situations of inconclusive evidence of causation courts prefer to apportion liability at 50:50. He relied on Robert Collins Murimi v Benson Njihia Kamau (Suing as the legal representative of the estate of Veronica Nunu Jihia-Deceased) [2017] eKLR and Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2019] eKLR, to support his argument that equal apportionment of liability would have been fair and reasonable based on the police abstract report, as there was no independent witness to have the court persuaded to arrive at a different conclusion.
[12] On quantum, the appellant submitted that since the assessment report indicated that the salvage value of the vehicle is Kshs. 50,000/=, it was incumbent on the respondent to mitigate her losses. He further discounted the sale agreement contending that the court had to take into account that the motor vehicle must have depreciated from the date of the sale. The appellant relied on Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR.
[13] The appellant conceded that the assessor gave details of the parts of the respondent's vehicle which were damaged and against each item he did assign a value. He therefore had no objection to the award for material damage by the lower court being by this Court. He however prayed for his appeal on liability to be upheld with costs.
[14] In her written submissions dated 11 th November 2025, the respondents proposed only one issue for determination, namely, whether or not the appeal as filed has merit. He relied on Jimnah Munene Macharia v John Kamau Erara , Civil Appeal No. 218 of 1998 and Bungoma Line Sacco Society Limited v Super Hardware (K) Ltd [2021] eKLR for the proposition that where there is no proof of actual repair the plaintiff is only entitled to pre-accident value less the salvage as repair would not be economically viable. The respondent also relied on the decision of the Court of Appeal in Concord Insurance Company v David Otieno Awinyo & another [2005] eKLR where the court while discussing the measure or damage to chattels agreed with the decision of Herman LJ in Derbyshire v Waran [1963] I WLR 1067 at page 1070 that:
“The principle is that of restitution integrum, that is to say, to put the plaintiff in the same position as though the damage never happened. It has come to be settled that in general the measure of damages is the cost of repairing the damaged article, but there is an exception if it can be proved that the cost of repairs of the damaged article greatly exceeds the value in the market of the damaged article. This arises out of the plaintiffs duty to minimize his damage…"
[15] In the premises, the respondent urged the Court to find that the learned magistrate considered all the testimonies and the evidence as presented and reached a decision which was fair in the circumstances. She prayed for the dismissal of the appeal with costs.
[16] The duty of the first appellant court was well stated in Selle v Associated Motor Boat Co. [1968] EA 123 where the Court of Appeal held:
“ The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally.”
[17] The record of the lower court shows that the respondent testified on 5 th July 2023 as PW4. She adopted her witness statement dated 9 th March 2019 as her evidence. She told the court that the deceased, Enock Agai Kopiyo, was her husband and that he owned Motor Vehicle Registration No. KBN 228V. The respondent further testified that the deceased died from injuries suffered in a road traffic accident while driving the said motor vehicle along the Oyugis-Kisumu Road on the 28 th April 2019. She explained that the accident occurred next to her gate and that the motor vehicle was towed to Oyugis Police Station. The extent of damage was later assessed and the motor vehicle declared a write-off, with a salvage value of Kshs. 50,000/=.
[18] Among the documents produced by the respondent as exhibits were the Certificate of Death in respect of her husband, Grant of Letters of Administration Ad Litem, Demand Notice and a Copy of the Record held by the National Transport and Safety Authority pertaining to Motor Vehicle Registration No. KCL 378K. She prayed for compensation in respect of the damaged motor vehicle, contending that it was being used to transport her children to school. She also prayed for loss of user at Kshs. 1,000/= per day for 6 months as well as costs of the suit.
[19] The respondent called Caleb Ochieng Oyugi (PW1), a motor vehicle assessor working with Regent Automobile Valuers at the Kisii Branch. His testimony was that he received instructions from the respondent to undertake an assessment of Motor Vehicle Registration No. KBN 228V, a private saloon car which had been involved in a road traffic accident. He confirmed that he carried out the assessment and prepared a report in which he assessed the pre-accident value of the motor vehicle at Kshs. 300,000/= and the salvage value at Kshs. 50,000/=. He also stated that they charged the respondent Kshs. 6,000/= for their services. He produced the Assessment Report before the lower court.
[20] The respondent’s second witness was PC Lenard Mammao Asoma (PW2), a police officer who was then attached to Oyugis Police Station on traffic duties. He testified that an accident occurred on 28 th April 2019 at Atela near Chabera; and that the accident was brought to their attention. He further confirmed that the accident involved two motor vehicles, namely Motor Vehicle Registration No. KCL 378K, Matatu and a saloon car Registration No. KBN 228U. PW2 further confirmed that he visited the scene with Sgt. Kerosi and did all that was necessary. He added that, from the observations made at the scene, the saloon car was moving towards Oyugis direction whereas the Matatu was headed for Kisumu.
[21] PW2 confirmed that the driver of the saloon car, Registration No. KBN 228U called Enock Agai Opiyo , died as a result of the accident and that the motor vehicle he was driving was extensively damaged. He produced the police abstract as well as the inspection reports for the subject motor vehicles as exhibits before the lower court.
[22] Bernard Odhiambo (PW3) told the lower court that he was at Atela Primary School on 28 th April 2019 and was a witness to the subject accident involving Motor Vehicles Registration Nos KBN 228U and KCL 378K. His evidence was that the driver of Motor Vehicle Registration No. KCL 378K was to blame for the accident. He explained that the driver was competing for passengers with the driver of another matatu at a high speed; and that he jumped over a road bump as he was overtaking and hit the oncoming vehicle No. KBN 228U.
[23] Upon closure of the plaintiff’s case, the parties recorded a consent on the 5 th July 2023 to the effect that the decision of the court on liability in Oyugis Principal Magistrate’s Civil Case No. 20 of 2020 be adopted in the subject suit No. 83 of 2020; a suit between the same parties. In that case, the lower court found the appellant 100% liable in respect of the same accident.
[24] Needless to mention that, in terms of Section 107(1) of the Evidence Act, CAP 80, the legal burden of proof was on the respondent as the plaintiff before the lower court. That provision is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[25] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[26] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, held:
“The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[27] From the foregoing summary, and having considered the appellant’s Grounds of Appeal and the written submissions filed herein as well as the proceedings it is common ground that an accident occurred on the 28 th April 2019 involving a Toyota Matatu Registration No. KCL 378K and Nissan Saloon Registration No. KBN 228U. The parties are also in agreement that, as a result of that collision that the deceased, Enock Agai Kopiyo , sustained grievous injuries from which he succumbed. Hence, the issues for re-evaluation herein are:
[a] Whether the learned magistrate erred in fixing liability at 100% as against the appellant.
[b] Whether the learned magistrate erred in assessing damages payable to the estate of the deceased for the damages occasioned to Motor Vehicle Registration No. KBN 228U.
A. On Liability:
[28] As has been pointed out herein above, the parties agreed that liability be settled in Oyugis Senior Magistrate’s Civil Case No. 20 of 2020 . Having dismissed the appellant’s appeal on liability in that test case, the lower court’s decision on liability in respect of this appeal is hereby upheld at 100% as against the appellant.
B. On the award for material damage to the deceased’s motor vehicle Registration No. KBN 228U:
[29] Under this head, the lower court awarded Kshs. 300,000/= to the respondent. The award was premised on the evidence of the investigating officer, PW2. PW2 visited the scene soon after the accident and confirmed that the deceased’s motor vehicle was indeed extensively damaged. He produced the Police Abstract marked the Plaintiff’s Exhibit 2 before the lower court along with photographs of Motor Vehicle Registration No. KBN 228U in its accident state. That evidence was not controverted.
[30] The respondent also presented uncontroverted evidence through PW3 that the deceased’s motor vehicle was a complete write-off. In the Accident Assessment Report dated 28 th November 2019, PW3 listed all the damaged parts of the subject vehicle and concluded that repairs to bring it back to its pre-accident condition would be uneconomical. He consequently recommended that it be treated as a total loss. He also assessed its pre-accident value at Kshs. 350,000/= and a salvage value of Kshs. 50,000/=. That was credible and acceptable evidence, especially in cases, such as this, where repair is uneconomical.
[31] In Nkuene Dairy Farmers Co-op Society Ltd & Another v Ngacha Ndeiya [2010] eKLR the Court of Appeal held:
“Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are common items and any price which the assessor might have given could be counterchecked and either accepted or disproved. The Appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor’s report. The experience of the Assessor was not challenged…The Respondent, to our mind, particularized his claim in the plaint and called acceptable evidence to prove the same and we have no basis for faulting both the trial and first appellate courts in the concurrent decision they came to. Indeed the decision of David Bagine vs. Martin Bundi Civil Appeal No. 283 of 1996 which Mr. Kaburu cited to us, does state that a motor vehicle Assessor’s report would provide acceptable evidence to prove the value of material damage to a motor vehicle…We agree with Mr. Charles Kariuki that the Assessor’s report was sufficient proof and the failure to produce receipts for any repairs done was not fatal to the respondent’s claim…”
[32] Consequently, although the appellant denied the particulars of material damage to the deceased motor vehicle, no evidence was presented to rebut the respondent’s evidence. Indeed, in his written submissions the appellant conceded at paragraph 18 that the assessor gave details of the parts of the respondent's vehicle which were damaged and therefore he had no objection to the award for material damage by the lower court being upheld by this Court. I therefore find no basis for interfering with the material damage award of Kshs. 300,000/= made by the lower court.
[33] The sum of Kshs. 6,000/= claimed as a special damages item was proved by the Assessor’s receipt marked the Plaintiff’s Exhibit 1(b). I therefore find no basis for interfering with the lower court’s award of Kshs. 306,000/=.
[34] In the result, I find no merit in the appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED AND SIGNED AND DELIVERED VIRTUALLY THIS 10 TH DAY OF SEPTEMBER 2026