(Being an Appeal from the judgment and decree of Hon. D. W. MBURU Senior Principal Magistrate, delivered on 22nd December 2021 in Milimani Commercial Courts Civil Suit No. 7754 of 2019)
JUDGMENT
1. The appellants filed this appeal through a memorandum of appeal dated 14th January 2022 against the judgment of the trial court delivered on 22nd December 2021 in a suit by the 1st respondent, Daniel Morara Singa, against the appellants herein and the 2nd and 3rd respondents.
2. The case before the trial court was that on 2nd June 2018, the 1st respondent was a fare-paying passenger in motor vehicle registration number KBS 255V owned by the 1st appellant and driven by the 2nd appellant along Outering road in Embakasi, Nairobi. The said vehicle was involved in an accident with motor vehicle registration number KCA 622U owned by the 2nd respondent herein and driven by the 3rd respondent.
3. The 1st respondent’s case was that motor vehicle registration number KBS 255V, in which she was a passenger, abruptly stopped on the road, causing obstruction for motor vehicle registration number KCA 622U, which rammed into it from the rear.
4. The 1st respondent blamed both drivers in negligence for the accident and further that the motor vehicle owners were vicariously liable for the same.
5. The appellants filed a common statement of defence dated 21st December 2020. They denied the 1st respondent’s claim and blamed the 1st respondent and the 2nd and 3rd respondents for negligence in causing the accident.
6. The 2nd and 3rd respondents also filed a joint statement of defense dated December 3, 2019. They denied causing the accident and instead blamed the 1st respondent and the appellants.
7. At the hearing, the 1st respondent testified as PW 1. He was the only witness for the plaintiff’s case. PC Jackline Naeku of Embakasi police station and Lucas Kyule, secretary of Embassava Sacco, the 1st appellant, gave evidence as DW 3 and DW 4, respectively, for the appellants. The appellants did not call an eyewitness to the accident. Alfred Nyabuto Bichanga, the 2nd respondent herein and owner of motor vehicle registration number KCA 622U, and Jared Chore Osiemo, the 3rd respondent and the driver of the same vehicle, testified as DW 1 and DW 2, respectively. The driver, DW 2, denied that he was to blame for the accident.
8. Upon hearing the case, the learned trial magistrate found the drivers of both vehicles equally liable for the accident and the respective owners vicariously liable. He apportioned liability in the ratio of 50:50 between the appellants herein on the one part and the 2nd and 3rd respondents herein on the other part and entered judgment against them as such jointly and severally.
9. The trial court assessed damages for the 1st respondent as follows:
a. General damages KShs 1,500,000/=
b. Loss of earning capacity KShs 1,500,000/=
c. Future medical expenses KShs 175,000/=
d. Special damages KShs 501,804/=
Total KShs 3,676,804/=
10. The appellants were dissatisfied with that decision and have filed the present appeal based on the grounds that:
a. The trial court erred in law and in fact by failing to consider the tangible evidence of the appellants on record.
b. The trial court erred in law and in fact by totally ignoring the appellants’ submissions.
c. The trial court erred in law and in fact by holding that the appellants were equally to blame for the accident.
d. The trial court erred in law and in fact by failing to apportion joint liability on the part of the plaintiff, 3rd and 4th defendants despite there not being called an eye witness.
e. The trial court erred in law and in fact by failing to appreciate the issue of liability was contested by the 1st and 2nd defendants and it was upon the plaintiff to prove that the 1st and 2nd defendants were liable and in the absence of an eye witness testimony, the plaintiff cannot be said to have proved the case on a balance of probabilities.
f. The trial court erred in law and in fact in relying only on the evidence of the plaintiff yet he was neither they eye witness nor could he address the issue of liability.
g. The trial court erred in law and in fact in awarding the plaintiff KShs 3,676,894/= plus interest and costs.
11. The appellant therefore prays for orders that:
a. The appeal be allowed, and the judgment of Hon. D. W. Mburu (SPM) delivered on 22nd December 2021 be set aside.
b. Costs of the appeal be awarded to the appellants.
12. The appeal was canvassed by way of written submissions filed by learned counsels for the appellants and the 1st respondent. The 2nd and 3rd respondents did not participate in the appeal
13. This being a first appeal, the duty of the court is to re-evaluate, re-analyze, and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A. at page 126, it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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, this 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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
14. The case herein is straightforward, as the evidence before the trial court established. Two eyewitnesses to the accident testified at the trial, PW 1, the 1st respondent, who was the only witness for the plaintiff, and DW 2, Jared Chore Osiemo, the driver of motor vehicle registration number KCA 622U, who was one of the witnesses for the 2nd and 3rd respondents herein.
15. The other witnesses, DW 1, DW 3, and DW 4, who testified before the trial court, did not witness the accident.
16. DW 1, Alfred Nyabuto Bichanga, the 2nd respondent herein (the 3rd defendant before the trial court) and the owner of motor vehicle registration number KCA 622U. He testified on behalf of the 3rd and 4th defendants (2nd and 3rd respondents herein) at the trial. The trial court found, correctly, that he was not present at the accident scene and he had no evidence on the causation of the accident.
17. DW 3 PC Jackline Naeku of Embakasi traffic police department and DW 4, Lucas Kyule, secretary of Embassava Sacco, the 1st appellant herein, testified on behalf of the appellants. DW 3 said that according to investigations, the driver of the motor vehicle registration number KCA 622U was blamed for the accident. This is the vehicle that belongs to the 2nd and 3rd respondents herein and which rammed into that of the appellants.
18. The appellants submit that the trial court was wrong to find the appellants 100% liable for the accident when it was their defence that the 1st respondent and the 2nd and 3rd respondents were at fault and ought to have been found to have contributed to the accident between themselves. The appellants insist that there was no eyewitness to the accident and that the police blamed the driver of motor vehicle KCA 622U for the accident.
19. In the first place, the trial court did not find them 100% liable for the accident. The trial court found that the drivers of both vehicles, the 2nd appellant and the 3rd respondent herein, were equally to blame for the accident and apportioned liability accordingly.
20. Secondly, I think insisting that there was no eyewitness to the accident is a failure to appreciate who an eyewitness is. As stated in the case cited by learned counsel for the appellant of Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased) v Mwangi [2024] KEHC 2434 (KLR) with which I agree, an eye witness is a person who gives direct evidence of how an event took place. Direct evidence is provided for under section 63 of the Evidence Act that oral evidence must be direct as follows:
(1) Oral evidence must in all cases be direct evidence.
(2) For the purposes of subsection (1) of this section, “direct evidence” means —
a) with reference to a fact which could be seen, the evidence of a witness who says he saw it;
b) with reference to a fact which could be heard, the evidence of a witness who says he heard it;
c) with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner;
d) with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds:
Provided that the opinion of an expert expressed in any treatise commonly offered for sale, and the grounds on which such opinion is held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.”
21. From the above provision, it follows that eyewitness evidence is direct evidence of an account of fact as perceived by the witness with his or her senses. That is what PW 1 and DW 2 said in their respective pieces of evidence. They witnessed the accident occur with their eyes. They saw what happened. That was eye-witness evidence. The assertion that the learned trial magistrate erred in relying on the evidence of the 1st respondent when she was not an eyewitness is thus misplaced.
22. Both PW 1 and DW 2 testified that motor vehicle registration number KBS 255V was speeding and stopped abruptly, and that motor vehicle registration number KCA 622U rammed into its rear.
23. 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 1st 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.”
24. 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.”
25. 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.
26. I find from the evidence tendered by both the 1st respondent and the 3rd respondent and the submissions by learned counsels before the trial court that it is common ground that the 2nd and 3rd respondents’ motor vehicle KCA 622U rammed into the appellants’ vehicle KBS 255V from the rear end.
27. The 1st respondent, whom I consider to have been a neutral and unbiased witness to the accident blamed both vehicles for the accident saying that motor vehicle KBS 255V stopped abruptly in the middle of the road whereupon motor vehicle KCA 622U rammed into it. The 2nd and 3rd respondents’ position was that indeed their vehicle did ram into the appellants’ vehicle from the rear end because the vehicle stopped abruptly ahead of theirs.
28. 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.”
29. From the above holding, it is apparent that the 3rd respondent herein as the one who rammed into the appellants’ vehicle from the rear, bore the burden to rebut the presumption that the rear-end collision of his motor vehicle with the appellant’s vehicle was not due to his negligence.
30. The 2nd appellant as the driver of the appellants’ vehicle, did not counter the evidence that he suddenly stopped his vehicle in the middle of the road because no witness testified for the appellants on how the accident occurred. The evidence of the 3rd respondent on how the accident occurred was corroborated by that of the 1st respondent. On the other hand, there was no explanation why the driver of the appellant’s vehicle stopped suddenly in the middle of the road. In doing so, he obviously obstructed motor vehicle registration number KCA 622U that was driving behind him. Therefore, inasmuch as the 3rd respondent was at fault for not maintaining a safe distance between his vehicle and the one ahead of him, the 2nd appellant was also at fault for stopping abruptly in the middle of the road.
31. 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.”
32. Having analyzed the facts at hand in this case as presented before the trial court, I find that the 2nd and 3rd respondents effectively rebutted the presumption that their vehicle was solely to blame for the accident.
33. I am satisfied that the learned trial magistrate came to the correct conclusion that both drivers were equally to blame for the accident. In the circumstances, I find no reason to interfere with the exercise of discretion by the learned trial magistrate in the apportionment of liability in the ratio of 50:50 between the appellants and the 2nd and 3rd respondents.
34. At the same time, there was no iota of evidence of how the 1st respondent, a passenger in the appellant’s vehicle contributed to the accident. The assertion that the trial court was wrong not to apportion liability to the 1st respondent has no basis and that ground of appeal is dismissed.
35. Consequently, the appeal on liability fails and is dismissed.
36. Although the final ground of appeal was that the trial court erred in law and in fact in awarding the plaintiff KShs 3,676,894/= plus interest and costs, I observe there was no submission by the appellants on the assessment and award of damages. It follows that there is no basis for this court to fault the assessment of damages. Consequently, I find that the same is deemed to have been abandoned by the appellant.
37. In the final analysis, I find that the appeal herein has no merit and the same is dismissed with costs to the 1st respondent.
38. Orders accordingly.
Delivered, dated, and signed on the Virtual Platform, Microsoft Teams, this 14th day of April 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
N/A for the Appellant
Ochieng for the 1st Respondent.
N/A for the 2nd and 3rd Respondents.
Ummu: Court Assistant.
JUDGMENT
1. The appellants filed this appeal through a memorandum of appeal dated 14th January 2022 against the judgment of the trial court delivered on 22nd December 2021 in a suit by the 1st respondent, Daniel Morara Singa, against the appellants herein and the 2nd and 3rd respondents.
2. The case before the trial court was that on 2nd June 2018, the 1st respondent was a fare-paying passenger in motor vehicle registration number KBS 255V owned by the 1st appellant and driven by the 2nd appellant along Outering road in Embakasi, Nairobi. The said vehicle was involved in an accident with motor vehicle registration number KCA 622U owned by the 2nd respondent herein and driven by the 3rd respondent.
3. The 1st respondent’s case was that motor vehicle registration number KBS 255V, in which she was a passenger, abruptly stopped on the road, causing obstruction for motor vehicle registration number KCA 622U, which rammed into it from the rear.
4. The 1st respondent blamed both drivers in negligence for the accident and further that the motor vehicle owners were vicariously liable for the same.
5. The appellants filed a common statement of defence dated 21st December 2020. They denied the 1st respondent’s claim and blamed the 1st respondent and the 2nd and 3rd respondents for negligence in causing the accident.
6. The 2nd and 3rd respondents also filed a joint statement of defense dated December 3, 2019. They denied causing the accident and instead blamed the 1st respondent and the appellants.
7. At the hearing, the 1st respondent testified as PW 1. He was the only witness for the plaintiff’s case. PC Jackline Naeku of Embakasi police station and Lucas Kyule, secretary of Embassava Sacco, the 1st appellant, gave evidence as DW 3 and DW 4, respectively, for the appellants. The appellants did not call an eyewitness to the accident. Alfred Nyabuto Bichanga, the 2nd respondent herein and owner of motor vehicle registration number KCA 622U, and Jared Chore Osiemo, the 3rd respondent and the driver of the same vehicle, testified as DW 1 and DW 2, respectively. The driver, DW 2, denied that he was to blame for the accident.
8. Upon hearing the case, the learned trial magistrate found the drivers of both vehicles equally liable for the accident and the respective owners vicariously liable. He apportioned liability in the ratio of 50:50 between the appellants herein on the one part and the 2nd and 3rd respondents herein on the other part and entered judgment against them as such jointly and severally.
9. The trial court assessed damages for the 1st respondent as follows:
a. General damages KShs 1,500,000/=
b. Loss of earning capacity KShs 1,500,000/=
c. Future medical expenses KShs 175,000/=
d. Special damages KShs 501,804/=
Total KShs 3,676,804/=
10. The appellants were dissatisfied with that decision and have filed the present appeal based on the grounds that:
a. The trial court erred in law and in fact by failing to consider the tangible evidence of the appellants on record.
b. The trial court erred in law and in fact by totally ignoring the appellants’ submissions.
c. The trial court erred in law and in fact by holding that the appellants were equally to blame for the accident.
d. The trial court erred in law and in fact by failing to apportion joint liability on the part of the plaintiff, 3rd and 4th defendants despite there not being called an eye witness.
e. The trial court erred in law and in fact by failing to appreciate the issue of liability was contested by the 1st and 2nd defendants and it was upon the plaintiff to prove that the 1st and 2nd defendants were liable and in the absence of an eye witness testimony, the plaintiff cannot be said to have proved the case on a balance of probabilities.
f. The trial court erred in law and in fact in relying only on the evidence of the plaintiff yet he was neither they eye witness nor could he address the issue of liability.
g. The trial court erred in law and in fact in awarding the plaintiff KShs 3,676,894/= plus interest and costs.
11. The appellant therefore prays for orders that:
a. The appeal be allowed, and the judgment of Hon. D. W. Mburu (SPM) delivered on 22nd December 2021 be set aside.
b. Costs of the appeal be awarded to the appellants.
12. The appeal was canvassed by way of written submissions filed by learned counsels for the appellants and the 1st respondent. The 2nd and 3rd respondents did not participate in the appeal
13. This being a first appeal, the duty of the court is to re-evaluate, re-analyze, and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A. at page 126, it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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, this 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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
14. The case herein is straightforward, as the evidence before the trial court established. Two eyewitnesses to the accident testified at the trial, PW 1, the 1st respondent, who was the only witness for the plaintiff, and DW 2, Jared Chore Osiemo, the driver of motor vehicle registration number KCA 622U, who was one of the witnesses for the 2nd and 3rd respondents herein.
15. The other witnesses, DW 1, DW 3, and DW 4, who testified before the trial court, did not witness the accident.
16. DW 1, Alfred Nyabuto Bichanga, the 2nd respondent herein (the 3rd defendant before the trial court) and the owner of motor vehicle registration number KCA 622U. He testified on behalf of the 3rd and 4th defendants (2nd and 3rd respondents herein) at the trial. The trial court found, correctly, that he was not present at the accident scene and he had no evidence on the causation of the accident.
17. DW 3 PC Jackline Naeku of Embakasi traffic police department and DW 4, Lucas Kyule, secretary of Embassava Sacco, the 1st appellant herein, testified on behalf of the appellants. DW 3 said that according to investigations, the driver of the motor vehicle registration number KCA 622U was blamed for the accident. This is the vehicle that belongs to the 2nd and 3rd respondents herein and which rammed into that of the appellants.
18. The appellants submit that the trial court was wrong to find the appellants 100% liable for the accident when it was their defence that the 1st respondent and the 2nd and 3rd respondents were at fault and ought to have been found to have contributed to the accident between themselves. The appellants insist that there was no eyewitness to the accident and that the police blamed the driver of motor vehicle KCA 622U for the accident.
19. In the first place, the trial court did not find them 100% liable for the accident. The trial court found that the drivers of both vehicles, the 2nd appellant and the 3rd respondent herein, were equally to blame for the accident and apportioned liability accordingly.
20. Secondly, I think insisting that there was no eyewitness to the accident is a failure to appreciate who an eyewitness is. As stated in the case cited by learned counsel for the appellant of Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased) v Mwangi [2024] KEHC 2434 (KLR) with which I agree, an eye witness is a person who gives direct evidence of how an event took place. Direct evidence is provided for under section 63 of the Evidence Act that oral evidence must be direct as follows:
(1) Oral evidence must in all cases be direct evidence.
(2) For the purposes of subsection (1) of this section, “direct evidence” means —
a) with reference to a fact which could be seen, the evidence of a witness who says he saw it;
b) with reference to a fact which could be heard, the evidence of a witness who says he heard it;
c) with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner;
d) with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds:
Provided that the opinion of an expert expressed in any treatise commonly offered for sale, and the grounds on which such opinion is held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.”
21. From the above provision, it follows that eyewitness evidence is direct evidence of an account of fact as perceived by the witness with his or her senses. That is what PW 1 and DW 2 said in their respective pieces of evidence. They witnessed the accident occur with their eyes. They saw what happened. That was eye-witness evidence. The assertion that the learned trial magistrate erred in relying on the evidence of the 1st respondent when she was not an eyewitness is thus misplaced.
22. Both PW 1 and DW 2 testified that motor vehicle registration number KBS 255V was speeding and stopped abruptly, and that motor vehicle registration number KCA 622U rammed into its rear.
23. 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 1st 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.”
24. 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.”
25. 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.
26. I find from the evidence tendered by both the 1st respondent and the 3rd respondent and the submissions by learned counsels before the trial court that it is common ground that the 2nd and 3rd respondents’ motor vehicle KCA 622U rammed into the appellants’ vehicle KBS 255V from the rear end.
27. The 1st respondent, whom I consider to have been a neutral and unbiased witness to the accident blamed both vehicles for the accident saying that motor vehicle KBS 255V stopped abruptly in the middle of the road whereupon motor vehicle KCA 622U rammed into it. The 2nd and 3rd respondents’ position was that indeed their vehicle did ram into the appellants’ vehicle from the rear end because the vehicle stopped abruptly ahead of theirs.
28. 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.”
29. From the above holding, it is apparent that the 3rd respondent herein as the one who rammed into the appellants’ vehicle from the rear, bore the burden to rebut the presumption that the rear-end collision of his motor vehicle with the appellant’s vehicle was not due to his negligence.
30. The 2nd appellant as the driver of the appellants’ vehicle, did not counter the evidence that he suddenly stopped his vehicle in the middle of the road because no witness testified for the appellants on how the accident occurred. The evidence of the 3rd respondent on how the accident occurred was corroborated by that of the 1st respondent. On the other hand, there was no explanation why the driver of the appellant’s vehicle stopped suddenly in the middle of the road. In doing so, he obviously obstructed motor vehicle registration number KCA 622U that was driving behind him. Therefore, inasmuch as the 3rd respondent was at fault for not maintaining a safe distance between his vehicle and the one ahead of him, the 2nd appellant was also at fault for stopping abruptly in the middle of the road.
31. 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.”
32. Having analyzed the facts at hand in this case as presented before the trial court, I find that the 2nd and 3rd respondents effectively rebutted the presumption that their vehicle was solely to blame for the accident.
33. I am satisfied that the learned trial magistrate came to the correct conclusion that both drivers were equally to blame for the accident. In the circumstances, I find no reason to interfere with the exercise of discretion by the learned trial magistrate in the apportionment of liability in the ratio of 50:50 between the appellants and the 2nd and 3rd respondents.
34. At the same time, there was no iota of evidence of how the 1st respondent, a passenger in the appellant’s vehicle contributed to the accident. The assertion that the trial court was wrong not to apportion liability to the 1st respondent has no basis and that ground of appeal is dismissed.
35. Consequently, the appeal on liability fails and is dismissed.
36. Although the final ground of appeal was that the trial court erred in law and in fact in awarding the plaintiff KShs 3,676,894/= plus interest and costs, I observe there was no submission by the appellants on the assessment and award of damages. It follows that there is no basis for this court to fault the assessment of damages. Consequently, I find that the same is deemed to have been abandoned by the appellant.
37. In the final analysis, I find that the appeal herein has no merit and the same is dismissed with costs to the 1st respondent.
38. Orders accordingly.
Delivered, dated, and signed on the Virtual Platform, Microsoft Teams, this 14th day of April 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
N/A for the Appellant
Ochieng for the 1st Respondent.
N/A for the 2nd and 3rd Respondents.
Ummu: Court Assistant.