The Appellant sought judgment against the Defendant for;
(a) General damages for pain and suffering and future medical expenses,
(b) Special damages of Kshs. 120,705/=
(c) Costs of and incidentals to the suit
(d) Interests on a, b, and c above at court rates
The Appellant’s case was that on 19th March 2020 he was lawfully walking off the road along Kisii-Rongo road when at Nyanchenge area the owner and / or driver of motor vehicle Reg. No. KCR 384 K so negligently drove, managed and / or controlled the said motor vehicle and that he permitted the said motor vehicle to lose control, veer off the road and violently hit the Appellant thus causing the plaintiff to sustain severe bodily injuries for which the Respondent should be held liable.
The injuries suffered by the Appellant were particularized in paragraph 5 of the Plaint as:
-Right tibia fracture
-Right fibula fracture
-Right 3rd, 4th and 6th rib fracture
-Bruises on the lower limbs
-Cut wounds on the lower limbs
-Chest contusion
-Blunt trauma to the neck
-Bruises on the right upper limb
-Bruises on the left limb
The trial Magistrate considered the evidence on record and apportioned liability in the ratio of 50:50 and awarded general damages at Kshs. 1,200,000/= together with special damages of Kshs. 120,705. Costs of the suit was awarded to the Appellant together with interest from the date of judgement.
The Appellant was aggrieved by the judgment of the trial court and brought the appeal herein vide the Memorandum of Appeal dated 22nd September 2022 on the following grounds: -
i) The Learned Trial Magistrate erred in law and fact in apportioning liability at the ratio of 50:50 between the Appellant and the Respondent.
ii) The Learned Trial Magistrate erred in law and fact in failing to hold the Respondent 100% liable for the accident.
iii) The Learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s evidence and submissions in her judgement as regards to the issue of liability.
iv) The Learned Trial Magistrate’s decision on liability albeit a discretionary one was plainly wrong.
The Appellant prayed that:
(a). That the appeal be allowed;
(b). That the judgment and decree of the lower court on liability be set aside and/ or reviewed and that the court enter judgment in favour of the Appellant as per submissions in the lower court.
(c). That the Appellant be awarded costs of suit in the subordinate court and the appeal.
This appeal was canvassed by way of written submissions.
The Appellant’s counsel filed submissions dated 19th December 2024 which are to the effect that the appellate court will not usually disturb a decision of a trial court unless it is shown that the trial court took into issue extraneous circumstances which it ought not to have considered hence arriving at a wrong decision.
The Appellant cited the holdings in the case of Eunice Auma Onyango Vs Salin Akinyi Oluoch Civil Appeal No. 71 of 2015 where it was held:
“an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings”
They also cited the case of Butt Vs Khan [1977] 1 KLR where the court set circumstances under which an appellate court may interfere with a decision of the trial court as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
The Appellant submitted that the Trial Court ignored direct uncontroverted evidence as to the causation of the accident and that was substantial error that warrants a review of the finding on liability.
It was argued that the Respondent’s negligence was plain and self-evident from the uncontroverted evidence on record that the accident vehicle failed to maintain on the road, going off the road and knocking the Appellant who was lawfully walking off the road. It was submitted that the Trial Court’s finding was non-evidential and manifestly inconsistent with precedent set in similar cases and the appeal should be allowed.
The Appellant submitted that the Respondent did not tender evidence at all to discount the veracity, authenticity and truth of the Investigating Officer’s finding or that the Appellant was to blame for the accident.
It was further submitted that the Appellant was a mere pedestrian lawfully walking off the road and was not in control of the accident vehicle and the accident was beyond his control and no degree of liability can reasonably be apportioned to him.
It was argued that the Respondent had the duty to exercise care and attention as a driver of a motor vehicle to avoid injuring other road users. It was therefore the Appellant’s case that sufficient evidence was adduced to show the Respondent failed in his duty as a reasonable driver and should have shouldered 100% liability in the causation of the accident that led to the injuries suffered by the Appellant, and the Trial Court ought to have found that the evidence adduced amounted to conclusive proof of the negligence pleaded by the Appellant in the Plaint.
The Appellant cited the authority in Kansa Vs Solanki [1969] EA 318 where it was held:
"Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ………...This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.”
The Appellant submitted that the Trial Court in stating in the judgement that it was difficult to ascertain the circumstances of the accident did not state a single reason why it disregarded the Appellant’s testimony and the Police Officer’s finding and their evidential value and failed to appreciate that the Appellant was a mere pedestrian who was hit while walking lawfully off the road.
The Appellant urged the court to find that the accident was caused by pure negligence on the part of the Respondent and hold him 100% liable. Costs of the appeal were also sought for by the Appellant.
The Respondents submissions are dated 9th January 2025 and are to the effect that there was no dispute that an accident occurred on 19.03.2020 involving motor vehicle Reg. No. KCR 384 K and the Appellant who was a pedestrian but it was an established practice that apportioning liability was a discretion of the court and for an appellate court to interfere with such discretion the same must be on exceptional circumstances where there is an error of principle or where the apportionment is erroneous.
It was submitted that the Appellant had not demonstrated exceptional circumstances for this court to interfere with the Trial Court’s exercise of discretion in apportioning liability. It was also argued that Section 107 of the Evidence Act puts the burden of proof on the Appellant and it does not matter that the Respondent failed to avail witnesses to controvert the Appellant’s case.
The Respondent relied on the holding in Daniel Toroitich Arap Moi Vs Mwangi Stephen Muriithi & Another [2014] eKLR where it was held:
“The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”
The Respondent also cited the holding in Bwire Vs Wayo & Sailoki (Civil Appeal No. 032 of 2021) [2022] KEHC 7(KLR) (24th January 2022) where it was held:
“Had the trial Magistrate appreciated that the initial evidential burden rests upon the Plaintiff, and had he carefully applied his mind to the law, he would have held that there was nothing for the appellant to rebut since the Respondent had not discharged the legal burden of prove. However, he was blinded by the mere fact that the appellant never called evidence and overlooked binding decisions cited by the appellant before him. At that point it was irrelevant that the appellant never adduced evidence at all because there was nothing to rebut. On this ground alone, I allow this appeal in its entirety”
The Respondent submitted further that PW2 the police officer who testified was not the Investigating Officer and did not produce the sketch plans to assist the court determine the point of impact and did tell circumstances of the accident and his testimony did not assist the court in determining liability.
The Respondent argued that the Appellant as a pedestrian had a duty to take care of his own safety and observe NTSA Highway Code and Guidelines 1 and 2 which require a pedestrian to walk on the right side of the road where he could see oncoming vehicles. That in the instant case the Appellant only saw the accident vehicle after he had been hit as he was walking with his back against the road and was therefore not observing NTSA Highway Code.
The Respondent submitted that the Appellant did not call an independent witness to assist his case since the burden of proof lay on him and he did not discharge the proof that it was only the Respondent who was liable for the accident.
The Respondent cited the case of Salmin Mbarak Awadh Vs Emma Nthoki Mutwota [2017] eKLR where it was held:
“The trial court called it mutual duty of care owed between driver and the pedestrian and thus breach by both driver and the pedestrian of that duty of care thus giving birth to equal blame. The trial court was correct In apportioning blame equally and thus the ground is rejected.
The Respondent submitted further that the Appellant’s submissions in the trial court could not take part of the evidence he was supposed to adduce and urged the court to find that the trial court properly apportioned liability.
The Respondent further relied on the case of Daniel Toroitich Arap Moi Vs Mwangi Stephen Muriithi & Another [2014] eKLR (supra) to support this position. It was posited that the Appellant failed to set out any exceptional circumstances that would make this court interfere with the decision of the trial court and the same should be upheld.
The Respondent urged the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-
i) Whether the Learned Trial Magistrate erred in law and fact in apportioning liability in the ratio of 50:50between the Appellant and the Respondent.
ii) Who should bear costs of the appeal?
Liability in road traffic accidents is ordinarily determined by identifying the party that caused or contributed to the accident. Whose fault was the accident?
In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
The Court of Appeal in Micheal Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR held:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
‘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 this question must be decided as a properly instructed and reasonable jury would decide it…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 and that if any 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 faults 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…’”
Similarly, in Chao vs. Dhanjal Brothers Ltd & 4 Others [1990] KLR 482 the court held that:
“Where the circumstances of the accident give rise to the inference of negligence, then the defendant, in order to escape liability, has to show that there was a probable cause of the accident which does not connote negligence or that the accident was consistent only with the absence of negligence.”
The Appellant in his evidence in court said he was walking 2 meters off the road when the accident vehicle knocked him and he fell on the left side of the road and sustained injuries as enumerated by PW1. In the judgement the Trial Magistrate said that the accident happened during the day at 11.30hrs and as a result there ought to have been eye witnesses for the respective parties without saying what the said independent witnesses were supposed to tell the court and whether the Trial Magistrate did not believe the evidence of the Appellant to require additional evidence.
The Trial Magistrate therefore apportioned liability without saying how the Appellant contributed to the causation of the accident and how the alleged independent witnesses would have affected evidence as to liability and what criteria was used to find that the Appellant was liable in equal measure to the Respondent in the causation of the accident when the Respondent did not tender any evidence to controvert the evidence of the Appellant that it was due to the negligence of the Respondent that the accident occurred.
The Respondent submitted that the Appellant failed to observe the NTSA guidelines and as a result was partly liable for the accident but the submissions on appeal were not raised during trial either through evidence in court or in submissions and cannot therefore be raised now to dislodge evidence adduced by the Appellant that he was walking 2 meters off the road when he was knocked. This piece of evidence was not controverted.
This court finds that the Trial Magistrate’s apportionment of liability was without basis and the same is hereby set aside and substituted with an order that the Respondent be and is hereby held 100 per cent liable for the accident which led to the injuries suffered by the Appellant.
The costs of the appeal and the costs in the subordinate court are awarded to the Appellant. Interest on general damages to accrue from the date of judgement in the Trial Court until payment in full while interest on special damages to accrue from date of filing of the suit until payment in full.
Delivered dated and signed at Kisii this 12th day of June, 2025
(a) General damages for pain and suffering and future medical expenses,
(b) Special damages of Kshs. 120,705/=
(c) Costs of and incidentals to the suit
(d) Interests on a, b, and c above at court rates
The Appellant’s case was that on 19th March 2020 he was lawfully walking off the road along Kisii-Rongo road when at Nyanchenge area the owner and / or driver of motor vehicle Reg. No. KCR 384 K so negligently drove, managed and / or controlled the said motor vehicle and that he permitted the said motor vehicle to lose control, veer off the road and violently hit the Appellant thus causing the plaintiff to sustain severe bodily injuries for which the Respondent should be held liable.
The injuries suffered by the Appellant were particularized in paragraph 5 of the Plaint as:
-Right tibia fracture
-Right fibula fracture
-Right 3rd, 4th and 6th rib fracture
-Bruises on the lower limbs
-Cut wounds on the lower limbs
-Chest contusion
-Blunt trauma to the neck
-Bruises on the right upper limb
-Bruises on the left limb
The trial Magistrate considered the evidence on record and apportioned liability in the ratio of 50:50 and awarded general damages at Kshs. 1,200,000/= together with special damages of Kshs. 120,705. Costs of the suit was awarded to the Appellant together with interest from the date of judgement.
The Appellant was aggrieved by the judgment of the trial court and brought the appeal herein vide the Memorandum of Appeal dated 22nd September 2022 on the following grounds: -
i) The Learned Trial Magistrate erred in law and fact in apportioning liability at the ratio of 50:50 between the Appellant and the Respondent.
ii) The Learned Trial Magistrate erred in law and fact in failing to hold the Respondent 100% liable for the accident.
iii) The Learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s evidence and submissions in her judgement as regards to the issue of liability.
iv) The Learned Trial Magistrate’s decision on liability albeit a discretionary one was plainly wrong.
The Appellant prayed that:
(a). That the appeal be allowed;
(b). That the judgment and decree of the lower court on liability be set aside and/ or reviewed and that the court enter judgment in favour of the Appellant as per submissions in the lower court.
(c). That the Appellant be awarded costs of suit in the subordinate court and the appeal.
This appeal was canvassed by way of written submissions.
The Appellant’s counsel filed submissions dated 19th December 2024 which are to the effect that the appellate court will not usually disturb a decision of a trial court unless it is shown that the trial court took into issue extraneous circumstances which it ought not to have considered hence arriving at a wrong decision.
The Appellant cited the holdings in the case of Eunice Auma Onyango Vs Salin Akinyi Oluoch Civil Appeal No. 71 of 2015 where it was held:
“an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings”
They also cited the case of Butt Vs Khan [1977] 1 KLR where the court set circumstances under which an appellate court may interfere with a decision of the trial court as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
The Appellant submitted that the Trial Court ignored direct uncontroverted evidence as to the causation of the accident and that was substantial error that warrants a review of the finding on liability.
It was argued that the Respondent’s negligence was plain and self-evident from the uncontroverted evidence on record that the accident vehicle failed to maintain on the road, going off the road and knocking the Appellant who was lawfully walking off the road. It was submitted that the Trial Court’s finding was non-evidential and manifestly inconsistent with precedent set in similar cases and the appeal should be allowed.
The Appellant submitted that the Respondent did not tender evidence at all to discount the veracity, authenticity and truth of the Investigating Officer’s finding or that the Appellant was to blame for the accident.
It was further submitted that the Appellant was a mere pedestrian lawfully walking off the road and was not in control of the accident vehicle and the accident was beyond his control and no degree of liability can reasonably be apportioned to him.
It was argued that the Respondent had the duty to exercise care and attention as a driver of a motor vehicle to avoid injuring other road users. It was therefore the Appellant’s case that sufficient evidence was adduced to show the Respondent failed in his duty as a reasonable driver and should have shouldered 100% liability in the causation of the accident that led to the injuries suffered by the Appellant, and the Trial Court ought to have found that the evidence adduced amounted to conclusive proof of the negligence pleaded by the Appellant in the Plaint.
The Appellant cited the authority in Kansa Vs Solanki [1969] EA 318 where it was held:
"Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ………...This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.”
The Appellant submitted that the Trial Court in stating in the judgement that it was difficult to ascertain the circumstances of the accident did not state a single reason why it disregarded the Appellant’s testimony and the Police Officer’s finding and their evidential value and failed to appreciate that the Appellant was a mere pedestrian who was hit while walking lawfully off the road.
The Appellant urged the court to find that the accident was caused by pure negligence on the part of the Respondent and hold him 100% liable. Costs of the appeal were also sought for by the Appellant.
The Respondents submissions are dated 9th January 2025 and are to the effect that there was no dispute that an accident occurred on 19.03.2020 involving motor vehicle Reg. No. KCR 384 K and the Appellant who was a pedestrian but it was an established practice that apportioning liability was a discretion of the court and for an appellate court to interfere with such discretion the same must be on exceptional circumstances where there is an error of principle or where the apportionment is erroneous.
It was submitted that the Appellant had not demonstrated exceptional circumstances for this court to interfere with the Trial Court’s exercise of discretion in apportioning liability. It was also argued that Section 107 of the Evidence Act puts the burden of proof on the Appellant and it does not matter that the Respondent failed to avail witnesses to controvert the Appellant’s case.
The Respondent relied on the holding in Daniel Toroitich Arap Moi Vs Mwangi Stephen Muriithi & Another [2014] eKLR where it was held:
“The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”
The Respondent also cited the holding in Bwire Vs Wayo & Sailoki (Civil Appeal No. 032 of 2021) [2022] KEHC 7(KLR) (24th January 2022) where it was held:
“Had the trial Magistrate appreciated that the initial evidential burden rests upon the Plaintiff, and had he carefully applied his mind to the law, he would have held that there was nothing for the appellant to rebut since the Respondent had not discharged the legal burden of prove. However, he was blinded by the mere fact that the appellant never called evidence and overlooked binding decisions cited by the appellant before him. At that point it was irrelevant that the appellant never adduced evidence at all because there was nothing to rebut. On this ground alone, I allow this appeal in its entirety”
The Respondent submitted further that PW2 the police officer who testified was not the Investigating Officer and did not produce the sketch plans to assist the court determine the point of impact and did tell circumstances of the accident and his testimony did not assist the court in determining liability.
The Respondent argued that the Appellant as a pedestrian had a duty to take care of his own safety and observe NTSA Highway Code and Guidelines 1 and 2 which require a pedestrian to walk on the right side of the road where he could see oncoming vehicles. That in the instant case the Appellant only saw the accident vehicle after he had been hit as he was walking with his back against the road and was therefore not observing NTSA Highway Code.
The Respondent submitted that the Appellant did not call an independent witness to assist his case since the burden of proof lay on him and he did not discharge the proof that it was only the Respondent who was liable for the accident.
The Respondent cited the case of Salmin Mbarak Awadh Vs Emma Nthoki Mutwota [2017] eKLR where it was held:
“The trial court called it mutual duty of care owed between driver and the pedestrian and thus breach by both driver and the pedestrian of that duty of care thus giving birth to equal blame. The trial court was correct In apportioning blame equally and thus the ground is rejected.
The Respondent submitted further that the Appellant’s submissions in the trial court could not take part of the evidence he was supposed to adduce and urged the court to find that the trial court properly apportioned liability.
The Respondent further relied on the case of Daniel Toroitich Arap Moi Vs Mwangi Stephen Muriithi & Another [2014] eKLR (supra) to support this position. It was posited that the Appellant failed to set out any exceptional circumstances that would make this court interfere with the decision of the trial court and the same should be upheld.
The Respondent urged the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-
i) Whether the Learned Trial Magistrate erred in law and fact in apportioning liability in the ratio of 50:50between the Appellant and the Respondent.
ii) Who should bear costs of the appeal?
Liability in road traffic accidents is ordinarily determined by identifying the party that caused or contributed to the accident. Whose fault was the accident?
In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
The Court of Appeal in Micheal Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR held:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
‘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 this question must be decided as a properly instructed and reasonable jury would decide it…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 and that if any 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 faults 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…’”
Similarly, in Chao vs. Dhanjal Brothers Ltd & 4 Others [1990] KLR 482 the court held that:
“Where the circumstances of the accident give rise to the inference of negligence, then the defendant, in order to escape liability, has to show that there was a probable cause of the accident which does not connote negligence or that the accident was consistent only with the absence of negligence.”
The Appellant in his evidence in court said he was walking 2 meters off the road when the accident vehicle knocked him and he fell on the left side of the road and sustained injuries as enumerated by PW1. In the judgement the Trial Magistrate said that the accident happened during the day at 11.30hrs and as a result there ought to have been eye witnesses for the respective parties without saying what the said independent witnesses were supposed to tell the court and whether the Trial Magistrate did not believe the evidence of the Appellant to require additional evidence.
The Trial Magistrate therefore apportioned liability without saying how the Appellant contributed to the causation of the accident and how the alleged independent witnesses would have affected evidence as to liability and what criteria was used to find that the Appellant was liable in equal measure to the Respondent in the causation of the accident when the Respondent did not tender any evidence to controvert the evidence of the Appellant that it was due to the negligence of the Respondent that the accident occurred.
The Respondent submitted that the Appellant failed to observe the NTSA guidelines and as a result was partly liable for the accident but the submissions on appeal were not raised during trial either through evidence in court or in submissions and cannot therefore be raised now to dislodge evidence adduced by the Appellant that he was walking 2 meters off the road when he was knocked. This piece of evidence was not controverted.
This court finds that the Trial Magistrate’s apportionment of liability was without basis and the same is hereby set aside and substituted with an order that the Respondent be and is hereby held 100 per cent liable for the accident which led to the injuries suffered by the Appellant.
The costs of the appeal and the costs in the subordinate court are awarded to the Appellant. Interest on general damages to accrue from the date of judgement in the Trial Court until payment in full while interest on special damages to accrue from date of filing of the suit until payment in full.
Delivered dated and signed at Kisii this 12th day of June, 2025