REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E047 OF 2024
GEORGE CHANGO KASHURU...........................……………………………….APPELLANT
VERSUS
KILIFI HIGH VISION ACADEMY.…………………………...……………….RESPONDENT
(Being an appeal from the judgment and decree delivered by Hon. S. D. Sitati (Senior Resident Magistrate) on 25 th March 2024 in Kilifi Magistrates Courts Civil Case No. E129 of 2023)
JUDGMENT
1. The appellants filed this appeal through a memorandum dated 22 nd April 2024. The appeal is on the apportionment of liability in a claim for general and special damages for personal injuries arising out of a road traffic accident.
2. The appellant was the plaintiff while the respondent was the defendant before the trial court. The appellant sued the respondent through a plaint dated 7 th February 2023. The respondent denied the claim through a defence dated 27 th April 2023.
3. The facts of the case are discernible from the pleadings and testimonies of the parties’ witnesses. They are that on 22 nd November 2022, the appellant was a passenger in motor vehicle registration number KCQ 734G Nissan matatu owned by third parties Abubakar Muye Noor and Faulu Malindi Sacco Society Ltd and driven by one Moses Kitsao Mwatsuma. The matatu was travelling from Mombasa general direction towards Malindi general direction when at Kararacha area an accident occurred involving the said vehicle and the respondent’s motor vehicle registration number KAZ 889L, a school bus.
4. The appellant pleaded that the school bus diverted abruptly and caused obstruction and was hit by the motor vehicle registration number KCQ 734G in which he was travelling as a result whereof the appellant sustained injuries listed as:
a. Multiple cuts on the right lower limb.
b. Blunt injury to the right lower limb.
c. Bruises on the right lower limb.
d. Foreign bodies (glass pieces) on the right lower limb.
5. The appellant blamed the respondent for negligence for the accident.
6. The respondent on its part pleaded contributory negligence against the appellant and also the driver and owner of motor vehicle registration number KCQ 734G Nissan matatu. In furtherance thereof, the respondent took out a third party notice against the owners of the said matatu namely Abubakar Muye Noor and Faulu Malindi Sacco Ltd. The notice was granted but the third parties did not respond to it. In the proceedings the respondent indicated that it had only served the 1 st third party, Abubakar Muye Noor. However the respondent did not prosecute a hearing on the third party notice.
7. At the trial, the appellant George Chango Kashuru testified as PW 1 and called two other witnesses. PW 2, Dr. Ajoni Adede who produced the medical report dated 18 th January 2023 on his examination of the appellant, the injuries he sustained, the treatment received and the doctor’s assessment of the seriousness of the injuries and PW 3, PC Hassan Bruno, the investigating officer in the case from Kilifi police station and who testified produced the police abstract issued in the matter following the accident.
8. In his testimony the appellant adopted his witness statement dated 7 th February 2023. He stated therein that while at the site of the accident, motor vehicle registration number KAZ 889L was ahead of theirs when all of a sudden the driver of the said vehicle diverted without indicating and caused obstruction and was hit by the Nissan matatu which overturned.
9. PW 3, the investigating officer on his part testified that the bus was to blame for the accident because the driver drove off the road to the left of the main road and made a turn to the right and was hit by the matatu. He said he did not know whether the bus indicated or not before turning right but that the bus drove to the far left before turning to the right. According to PW 3, the driver could have stopped to give way to the highway drivers.
10. In cross-examination, PW 3 said that the vehicle behind has a duty to keep a safe distance. He said that the bus was impacted on the right tyre. He also said that the Occurrence Book entry indicated that the matatu failed to keep a safe distance and hit the bus. He conceded that the OB entry did not indicate that the bus left the road at any time and went to the left and that it was returning to the road when it was hit. He said the driver of the bus was not charged for any traffic offence.
11. In re-examination, PW 3 said that the bus was turning and that the issue of keeping a safe distance applies only if a motor vehicle is hit from behind which was not the case herein since the bus was hit on the right side of the body as it was turning right.
12. The appellant produced various documents he had filed alongside the plaint, as his exhibits.
13. The respondent also called three witnesses in defence: DW 1, Kelvin Odhiambo Owino, a mechanic with the respondent and who was a passenger and also the conductor in the bus, DW 2, Barisa Mwambui Tsuma who was the driver of the bus and DW 3, Margaret Muthoni Kalya, an investigator with Funrays General Services.
14. The driver, DW 2 adopted his witness statement dated 5 th May 2023 as evidence in chief. In his evidence, he said he was in the process of dropping home pupils from the respondent’s school. Before he reached the junction where he was to exit some 30m before he indicated and when he reached the junction he diverted to exit and in the process, while the rear part of the bus was yet to exit the road, the Nissan matatu heading in the same direction towards Malindi hit the bus on the rear tyre and the bus rolled down on its side and the matatu also rolled. There was a conductor and five pupils in the bus. The driver and conductor were slightly injured but none of the pupils was injured. The damage to the bus was on the right rear side. Police came to the scene and conducted investigations and the vehicles were towed away.
15. DW 1 who was a conductor in the bus gave similar evidence that the matatu hit the bus and also that the driver of the bus signaled before turning right.
16. After trial the learned trial magistrate in his judgment found that the matatu driver failed to keep a safe distance and rammed into the rear of the bus. He absolved the bus driver of any blame. He therefore found that the appellant had failed to prove his case on a balance of probability and dismissed the suit.
17. The learned trial magistrate found on assessment of damages that had the appellant proved his claim, he would have awarded him KShs 200,000/= for the injuries sustained as general damages for pain, suffering and loss of amenities and special damages of KShs 2,765/=.
18. The appellant was dissatisfied with that decision on liability and has filed the present appeal based on five grounds as follows:
a. The learned magistrate erred in law and in fact in applying the wrong principles in finding that the respondent was not laible for the accident despite all the accident submitted,
b. The learned magistrate erred in law in failing to apply the principles of contributory negligence on the part of the respondent.
c. The learned magistrate erred in fact and in law by failing to consider that the accident was solely caused by the negligence on the part of the respondent who was in control and management of the said vehicle.
d. The learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the evidence adduced by the appellant and the police officer in regard to the circumstanes of the accident.
e. The learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the submissions filed on behalf of the appellants.
f. In all circumstances of the case, the learned judge (sic) failed to do justice.
19. The appellant therefore prays for this court to allow the appeal and the judgment on liability and find that the respondent was 100% liable for the accident with costs to the appellant.
20. The appeal was canvassed by way of written submissions filed by both parties which are considered in the analysis that follows.
21. 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.
22. 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 him and acted on correct principles and arrived at the correct conclusion on the issue of liability.
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 appellant had failed to prove 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 appellant and the respondent and the submissions by learned counsels that it is common ground that the motor vehicle in which the appellant was travelling hit the bus on the rear right tyre towards the middle of the body of the bus. A photograph of the bus showing the dent was produced and is at page 72 of the record of appeal.
27. The learned trial magistrate found that the appellant’s assertion that the bus had failed to indicate while turning right was not credible because from where he sat he could not have been able to see that the bus had failed to signal before turning right. Further that the appellant failed to call the driver of the Nissan matatu to corroborate his version of the events. The learned trial magistrate also found that the evidence of the investigating officer had been discredited for the reason that he had blamed the bus driver in his testimony in court while in the occurrence book he had blamed the nissan matatu driver.
28. I agree with the learned magistrate’s finding that the investigating officer became shifty in his testimony, taking a different stance from the one he had taken at the time of recording the accident in the OB when he had blamed the driver of the matatu for the accident. That was a material point on which the case was to be determined. He could therefore not be relied upon to give a fair account of the investigations and findings in the case. The learned trial magistrate was therefore correct to find his evidence to be unreliable.
29. However, with respect I find the conclusion by the learned trial magistrate that the appellant did not prove that from where he was seated he could say with certainty how the accident had occurred to be unsupported. I have read through the witness statement of the appellant and his testimony in court, including cross-examination and there is nowhere the issue of where he was seated so as to be unable to witness what occurred arose. If such an issue never arose in the evidence of the appellant, the learned trial magistrate had no basis to base his finding upon it. In that case, I find that he took into account a matter that he ought not to and thereby arrived at a wrong conclusion.
30. The undisputed facts are that both vehicles were moving in the same direction with the bus ahead of the matatu. Further that the bus was turning right and that the Nissan matatu hit it on the rear right tyre. The impact appears to have been so great because, according to the appellant and DW2, both vehicles overturned and further the bus driver said that the bus windows and rear windscreen were shuttered. Further, from the evidence of DW 1 and DW 2, the point of impact of the collision was in the opposite lane to where the two vehicles were moving. This evidence was not rebutted. This means therefore that, the matatu had started overtaking the bus. Considering the huge impact that caused the bus and the matatu to overturn, it means that the Nissan matatu was moving at very high speed.
31. The driver of the bus, DW 2 said that this was his usual road that he ferries pupils from the respondent’s school. He was aware that he was about to turn and at some 30 metres before the turn-off, he slowed down and signaled his intentions to do so. The bus had turned a considerable distance to the right when the Nissan matatu collided into it. This fact is evident from the point of impact on the bus.
32. Learned counsel for the appellant agrees that there was evidence that the bus driver signaled before turning but asserts that signaling alone did not discharge the bus driver of his duty of care as a signal is a warning and not a licence to obstruct. I have found that there is no evidence that the bus driver moved to the far left before starting to turn right as was alleged by the investigating officer. The bus driver said that he did not do that. He simply signaled his intention to turn right. Having issued that warning, as correctly observed by learned counsel, it was upon the driver of the matatu to slow down and even stop his vehicle if necessary to allow the vehicle ahead to exit the road and not for him to attempt to speed past it. It was a completely reckless act of him to try to do that. The assertion by learned counsel for the appellant that the bus driver ought to have stopped to give way to the matatu is not correct. I agree with learned counsel for the respoindent that, this would have been the case if the matatu was approaching from the opposite direction. In this case, both vehicles were moving in the same direction and there is no requirement under the Highway Code that the vehicle ahead should stop and give way to the ones following behind to pass before entering a junction to its right.
33. Learned counsel for the respondent supports the findings of the trial court as being based on the objective evidence made available to it. Learned counsel submits that there was no evidence, contrary to the assertion by the appellant, that the bus failed to indicate, that it turned abruptly and/or obstructed the road. He submits that this was a rear-end collision and the driver of the matatu was to blame as he failed to keep a safe distance from the bus contrary to Rule 50 of the Highway Code. He has cited the cases of Multiple Hauliers (E.A) Ltd v ustus Mutua Malundu & 2 others [2017] KEHC 4278 (KLR) and Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) to support his submissions on the issue.
34. Weighing the evidence of the appellant in alleging that the bus driver did not indicate his intention to turn right and that of the bus driver and the conductor that in fact the bus driver did indicate I am inclined to believe DW 1 and DW 2 and reject the assertion by the appellant. The circumstances show that the matatu driver was speeding and failed to heed the signal by the bus that it was turning right, probably hoping to speed past it before it completed the turn, but that was not possible.
35. Learned counsel for the appellant submits that the collision herein cannot be described as rear-end since the matatu did not ram into the rear of a straight-moving bus. Learned counsel appears to rely wholly on the evidence of the investigating officer which he describes as independent, professional and material and that the trial court failed to give it due weight. However, that evidence was found by the trial court to be uncredithworthy, and for good reasons as explained above. Even assuming that the investigating officer had not been discredited for shifting his position, his allegation that the bus moved to the left then turned right was not supported by any eye-witness evidence since he was not present at the scene of the accident at the time of the accident. It would be dismissed as hearsay.
36. Learned counsel for the appellant emphasizes that the bus was hit on the right side of the body as evident from the photograph at page 72 of the record of appeal. That is correct just as it is also correct that the matatu rammed into the school bus while the two vehicles were moving in the same direction.
37. In this case, the undisputed evidence was that the matatu hit the school bus from the rear while the two vehicles were moving in the same direction. This bears the hallmarks of a rear-end collision even as the impact was towards the middle of the bus. Therefore, the appellant herein as the plaintiff before the trial court had both the burden to prove his case that the driver of the school bus was to blame for the accident and at the same time to rebut the presumption that by ramming into the bus it was not due to the negligence of the driver of the matatu in which he was travelling.
38. The learned trial magistrate said that the appellant ought to have called the driver of the matatu to corroborate his evidence but that was not a correct finding. There was no legal requirement that the appellant needed to have his evidence corroborated. It was simply a matter of weighing who between the appellant and the respondent’s witnesses would be believed.
39. If there was more evidence to corroborate his version of the events, well and good, it would have bolstered his case but where there is none like in this case, it cannot make the case for the appellant any weaker just because the appellant alone. It seems to me that even if the driver of the matatu had appeared and supported the assertion that the driver of the bus did not indicate that he was turning right, it would not have changed the conclusion that the driver of the matatu was at fault.
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 matatu driver rammed his motor vehicle into the rear right tyre of the school bus being driven by DW 2. In that case, a presumption arose that the matatu driver was to blame for the accident. The appellant 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 failed to prove his case on a balance of probability.
42. Consequently, I find that the appeal has no merit and is hereby dismissed on the issue of liability. The trial court’s finding that the respondent’s driver was not liable for the accident is hereby affirmed but on slightly different evaluation of the evidence.
43. The respondent gets the costs of the appeal.
44. This judgment arose from the judgment on liability in a test case and therefore it applies to Malindi High Court Civil Appeal Nos E048 of 2024 Samson Bomu Kazungu v. Kilifi High Vision Academy and E065 of 2024 Ali Mohamed Lali v. Kilifi High Vision Academy where the cases in the trial court were in a series with the test case.
45. Orders accordingly.
46. Delivered, dated and signed on the Virtual Platform, MicrosoftTeams this 14 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Nyabuto (Ms) for the appellant appearing earlier in the day.
N/A for the Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
malindi HCCA No. e047/20249/liability-RTA
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E047 OF 2024
GEORGE CHANGO KASHURU...........................……………………………….APPELLANT
VERSUS
KILIFI HIGH VISION ACADEMY.…………………………...……………….RESPONDENT
(Being an appeal from the judgment and decree delivered by Hon. S. D. Sitati (Senior Resident Magistrate) on 25 th March 2024 in Kilifi Magistrates Courts Civil Case No. E129 of 2023)
JUDGMENT
1. The appellants filed this appeal through a memorandum dated 22 nd April 2024. The appeal is on the apportionment of liability in a claim for general and special damages for personal injuries arising out of a road traffic accident.
2. The appellant was the plaintiff while the respondent was the defendant before the trial court. The appellant sued the respondent through a plaint dated 7 th February 2023. The respondent denied the claim through a defence dated 27 th April 2023.
3. The facts of the case are discernible from the pleadings and testimonies of the parties’ witnesses. They are that on 22 nd November 2022, the appellant was a passenger in motor vehicle registration number KCQ 734G Nissan matatu owned by third parties Abubakar Muye Noor and Faulu Malindi Sacco Society Ltd and driven by one Moses Kitsao Mwatsuma. The matatu was travelling from Mombasa general direction towards Malindi general direction when at Kararacha area an accident occurred involving the said vehicle and the respondent’s motor vehicle registration number KAZ 889L, a school bus.
4. The appellant pleaded that the school bus diverted abruptly and caused obstruction and was hit by the motor vehicle registration number KCQ 734G in which he was travelling as a result whereof the appellant sustained injuries listed as:
a. Multiple cuts on the right lower limb.
b. Blunt injury to the right lower limb.
c. Bruises on the right lower limb.
d. Foreign bodies (glass pieces) on the right lower limb.
5. The appellant blamed the respondent for negligence for the accident.
6. The respondent on its part pleaded contributory negligence against the appellant and also the driver and owner of motor vehicle registration number KCQ 734G Nissan matatu. In furtherance thereof, the respondent took out a third party notice against the owners of the said matatu namely Abubakar Muye Noor and Faulu Malindi Sacco Ltd. The notice was granted but the third parties did not respond to it. In the proceedings the respondent indicated that it had only served the 1 st third party, Abubakar Muye Noor. However the respondent did not prosecute a hearing on the third party notice.
7. At the trial, the appellant George Chango Kashuru testified as PW 1 and called two other witnesses. PW 2, Dr. Ajoni Adede who produced the medical report dated 18 th January 2023 on his examination of the appellant, the injuries he sustained, the treatment received and the doctor’s assessment of the seriousness of the injuries and PW 3, PC Hassan Bruno, the investigating officer in the case from Kilifi police station and who testified produced the police abstract issued in the matter following the accident.
8. In his testimony the appellant adopted his witness statement dated 7 th February 2023. He stated therein that while at the site of the accident, motor vehicle registration number KAZ 889L was ahead of theirs when all of a sudden the driver of the said vehicle diverted without indicating and caused obstruction and was hit by the Nissan matatu which overturned.
9. PW 3, the investigating officer on his part testified that the bus was to blame for the accident because the driver drove off the road to the left of the main road and made a turn to the right and was hit by the matatu. He said he did not know whether the bus indicated or not before turning right but that the bus drove to the far left before turning to the right. According to PW 3, the driver could have stopped to give way to the highway drivers.
10. In cross-examination, PW 3 said that the vehicle behind has a duty to keep a safe distance. He said that the bus was impacted on the right tyre. He also said that the Occurrence Book entry indicated that the matatu failed to keep a safe distance and hit the bus. He conceded that the OB entry did not indicate that the bus left the road at any time and went to the left and that it was returning to the road when it was hit. He said the driver of the bus was not charged for any traffic offence.
11. In re-examination, PW 3 said that the bus was turning and that the issue of keeping a safe distance applies only if a motor vehicle is hit from behind which was not the case herein since the bus was hit on the right side of the body as it was turning right.
12. The appellant produced various documents he had filed alongside the plaint, as his exhibits.
13. The respondent also called three witnesses in defence: DW 1, Kelvin Odhiambo Owino, a mechanic with the respondent and who was a passenger and also the conductor in the bus, DW 2, Barisa Mwambui Tsuma who was the driver of the bus and DW 3, Margaret Muthoni Kalya, an investigator with Funrays General Services.
14. The driver, DW 2 adopted his witness statement dated 5 th May 2023 as evidence in chief. In his evidence, he said he was in the process of dropping home pupils from the respondent’s school. Before he reached the junction where he was to exit some 30m before he indicated and when he reached the junction he diverted to exit and in the process, while the rear part of the bus was yet to exit the road, the Nissan matatu heading in the same direction towards Malindi hit the bus on the rear tyre and the bus rolled down on its side and the matatu also rolled. There was a conductor and five pupils in the bus. The driver and conductor were slightly injured but none of the pupils was injured. The damage to the bus was on the right rear side. Police came to the scene and conducted investigations and the vehicles were towed away.
15. DW 1 who was a conductor in the bus gave similar evidence that the matatu hit the bus and also that the driver of the bus signaled before turning right.
16. After trial the learned trial magistrate in his judgment found that the matatu driver failed to keep a safe distance and rammed into the rear of the bus. He absolved the bus driver of any blame. He therefore found that the appellant had failed to prove his case on a balance of probability and dismissed the suit.
17. The learned trial magistrate found on assessment of damages that had the appellant proved his claim, he would have awarded him KShs 200,000/= for the injuries sustained as general damages for pain, suffering and loss of amenities and special damages of KShs 2,765/=.
18. The appellant was dissatisfied with that decision on liability and has filed the present appeal based on five grounds as follows:
a. The learned magistrate erred in law and in fact in applying the wrong principles in finding that the respondent was not laible for the accident despite all the accident submitted,
b. The learned magistrate erred in law in failing to apply the principles of contributory negligence on the part of the respondent.
c. The learned magistrate erred in fact and in law by failing to consider that the accident was solely caused by the negligence on the part of the respondent who was in control and management of the said vehicle.
d. The learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the evidence adduced by the appellant and the police officer in regard to the circumstanes of the accident.
e. The learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the submissions filed on behalf of the appellants.
f. In all circumstances of the case, the learned judge (sic) failed to do justice.
19. The appellant therefore prays for this court to allow the appeal and the judgment on liability and find that the respondent was 100% liable for the accident with costs to the appellant.
20. The appeal was canvassed by way of written submissions filed by both parties which are considered in the analysis that follows.
21. 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.
22. 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 him and acted on correct principles and arrived at the correct conclusion on the issue of liability.
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 appellant had failed to prove 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 appellant and the respondent and the submissions by learned counsels that it is common ground that the motor vehicle in which the appellant was travelling hit the bus on the rear right tyre towards the middle of the body of the bus. A photograph of the bus showing the dent was produced and is at page 72 of the record of appeal.
27. The learned trial magistrate found that the appellant’s assertion that the bus had failed to indicate while turning right was not credible because from where he sat he could not have been able to see that the bus had failed to signal before turning right. Further that the appellant failed to call the driver of the Nissan matatu to corroborate his version of the events. The learned trial magistrate also found that the evidence of the investigating officer had been discredited for the reason that he had blamed the bus driver in his testimony in court while in the occurrence book he had blamed the nissan matatu driver.
28. I agree with the learned magistrate’s finding that the investigating officer became shifty in his testimony, taking a different stance from the one he had taken at the time of recording the accident in the OB when he had blamed the driver of the matatu for the accident. That was a material point on which the case was to be determined. He could therefore not be relied upon to give a fair account of the investigations and findings in the case. The learned trial magistrate was therefore correct to find his evidence to be unreliable.
29. However, with respect I find the conclusion by the learned trial magistrate that the appellant did not prove that from where he was seated he could say with certainty how the accident had occurred to be unsupported. I have read through the witness statement of the appellant and his testimony in court, including cross-examination and there is nowhere the issue of where he was seated so as to be unable to witness what occurred arose. If such an issue never arose in the evidence of the appellant, the learned trial magistrate had no basis to base his finding upon it. In that case, I find that he took into account a matter that he ought not to and thereby arrived at a wrong conclusion.
30. The undisputed facts are that both vehicles were moving in the same direction with the bus ahead of the matatu. Further that the bus was turning right and that the Nissan matatu hit it on the rear right tyre. The impact appears to have been so great because, according to the appellant and DW2, both vehicles overturned and further the bus driver said that the bus windows and rear windscreen were shuttered. Further, from the evidence of DW 1 and DW 2, the point of impact of the collision was in the opposite lane to where the two vehicles were moving. This evidence was not rebutted. This means therefore that, the matatu had started overtaking the bus. Considering the huge impact that caused the bus and the matatu to overturn, it means that the Nissan matatu was moving at very high speed.
31. The driver of the bus, DW 2 said that this was his usual road that he ferries pupils from the respondent’s school. He was aware that he was about to turn and at some 30 metres before the turn-off, he slowed down and signaled his intentions to do so. The bus had turned a considerable distance to the right when the Nissan matatu collided into it. This fact is evident from the point of impact on the bus.
32. Learned counsel for the appellant agrees that there was evidence that the bus driver signaled before turning but asserts that signaling alone did not discharge the bus driver of his duty of care as a signal is a warning and not a licence to obstruct. I have found that there is no evidence that the bus driver moved to the far left before starting to turn right as was alleged by the investigating officer. The bus driver said that he did not do that. He simply signaled his intention to turn right. Having issued that warning, as correctly observed by learned counsel, it was upon the driver of the matatu to slow down and even stop his vehicle if necessary to allow the vehicle ahead to exit the road and not for him to attempt to speed past it. It was a completely reckless act of him to try to do that. The assertion by learned counsel for the appellant that the bus driver ought to have stopped to give way to the matatu is not correct. I agree with learned counsel for the respoindent that, this would have been the case if the matatu was approaching from the opposite direction. In this case, both vehicles were moving in the same direction and there is no requirement under the Highway Code that the vehicle ahead should stop and give way to the ones following behind to pass before entering a junction to its right.
33. Learned counsel for the respondent supports the findings of the trial court as being based on the objective evidence made available to it. Learned counsel submits that there was no evidence, contrary to the assertion by the appellant, that the bus failed to indicate, that it turned abruptly and/or obstructed the road. He submits that this was a rear-end collision and the driver of the matatu was to blame as he failed to keep a safe distance from the bus contrary to Rule 50 of the Highway Code. He has cited the cases of Multiple Hauliers (E.A) Ltd v ustus Mutua Malundu & 2 others [2017] KEHC 4278 (KLR) and Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) to support his submissions on the issue.
34. Weighing the evidence of the appellant in alleging that the bus driver did not indicate his intention to turn right and that of the bus driver and the conductor that in fact the bus driver did indicate I am inclined to believe DW 1 and DW 2 and reject the assertion by the appellant. The circumstances show that the matatu driver was speeding and failed to heed the signal by the bus that it was turning right, probably hoping to speed past it before it completed the turn, but that was not possible.
35. Learned counsel for the appellant submits that the collision herein cannot be described as rear-end since the matatu did not ram into the rear of a straight-moving bus. Learned counsel appears to rely wholly on the evidence of the investigating officer which he describes as independent, professional and material and that the trial court failed to give it due weight. However, that evidence was found by the trial court to be uncredithworthy, and for good reasons as explained above. Even assuming that the investigating officer had not been discredited for shifting his position, his allegation that the bus moved to the left then turned right was not supported by any eye-witness evidence since he was not present at the scene of the accident at the time of the accident. It would be dismissed as hearsay.
36. Learned counsel for the appellant emphasizes that the bus was hit on the right side of the body as evident from the photograph at page 72 of the record of appeal. That is correct just as it is also correct that the matatu rammed into the school bus while the two vehicles were moving in the same direction.
37. In this case, the undisputed evidence was that the matatu hit the school bus from the rear while the two vehicles were moving in the same direction. This bears the hallmarks of a rear-end collision even as the impact was towards the middle of the bus. Therefore, the appellant herein as the plaintiff before the trial court had both the burden to prove his case that the driver of the school bus was to blame for the accident and at the same time to rebut the presumption that by ramming into the bus it was not due to the negligence of the driver of the matatu in which he was travelling.
38. The learned trial magistrate said that the appellant ought to have called the driver of the matatu to corroborate his evidence but that was not a correct finding. There was no legal requirement that the appellant needed to have his evidence corroborated. It was simply a matter of weighing who between the appellant and the respondent’s witnesses would be believed.
39. If there was more evidence to corroborate his version of the events, well and good, it would have bolstered his case but where there is none like in this case, it cannot make the case for the appellant any weaker just because the appellant alone. It seems to me that even if the driver of the matatu had appeared and supported the assertion that the driver of the bus did not indicate that he was turning right, it would not have changed the conclusion that the driver of the matatu was at fault.
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 matatu driver rammed his motor vehicle into the rear right tyre of the school bus being driven by DW 2. In that case, a presumption arose that the matatu driver was to blame for the accident. The appellant 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 failed to prove his case on a balance of probability.
42. Consequently, I find that the appeal has no merit and is hereby dismissed on the issue of liability. The trial court’s finding that the respondent’s driver was not liable for the accident is hereby affirmed but on slightly different evaluation of the evidence.
43. The respondent gets the costs of the appeal.
44. This judgment arose from the judgment on liability in a test case and therefore it applies to Malindi High Court Civil Appeal Nos E048 of 2024 Samson Bomu Kazungu v. Kilifi High Vision Academy and E065 of 2024 Ali Mohamed Lali v. Kilifi High Vision Academy where the cases in the trial court were in a series with the test case.
45. Orders accordingly.
46. Delivered, dated and signed on the Virtual Platform, MicrosoftTeams this 14 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Nyabuto (Ms) for the appellant appearing earlier in the day.
N/A for the Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
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ENDNOTES
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malindi HCCA No. e047/20249/liability-RTA