(Being an appeal from the judgment of Hon. V.K. Momanyi in Milimani SCCC No. 3249 of 2024 and E3247 of 2024 (consolidated)
JUDGMENT
The appellant (Jane Njoki) instituted SCCC E3247 of 2024 against the respondent (Wanyika Ndurumo) on 4.7.24 claiming special damages on behalf of her insurer under subrogation for an accident that occurred on 5.7.2021 involving motor vehicle KCU 704T and the respondent’s motor vehicle KCY 403A. The appellant blamed the respondent for the accident.
On the same date, the respondent also filed his own subrogation suit being SCCC E3249 of 2024 on behalf of his insurer. He on the other hand blamed the appellant. Both suits were consolidated and the respondent’s suit (SCCC E3249 of 2024) was made the lead suit.
The appellant’s case before the lower court is that the respondent had parked a stalled vehicle KCY 403A on the road without any warning signs, thereby leading to the appellant’s motor vehicle KCU 704T ramming onto the respondent’s motor vehicle. The appellant’s case was that the motor vehicle had stalled in the lane for fast moving vehicles.
In her evidence, the appellant stated that a motor vehicle which was moving ahead of her motor vehicle had also blocked the view ahead and the driver suddenly swerved to avoid ramming onto the respondent’s motor vehicle but she could not swerve due to the other vehicles on her left side and also on her right side there was the road barrier.
The respondent on the other hand testified that on the material day, he was lawfully and carefully driving motor vehicle KCY 403A along Thika road when at Utalii College area, he encountered a motor vehicle reg No. KCW 316L which was stalled on the road ahead of him. He was forced to slow down to avoid bumping into the said motor vehicle. That the appellant who was driving motor vehicle KCU 704T directly behind his motor vehicle failed to slow down as a consequence of which motor vehicle reg No. KCU 704T violently rammed onto the rear of his motor vehicle and caused extensive damage.
A police officer who testified as CW3 No. 81685 senior sergeant Maurine Odero, brought to the attention of the court two police abstracts dated 6.7.2021, which blamed the respondent for the accident, and one dated 7.7.2024 which indicated that the appellant was to blame for the accident. The trial magistrate found the police officer’s evidence unreliable.
Confronted with two conflicting accounts of how the accident occurred, the trial magistrate in her judgment stated as follows:
“In this case, it is clear that Jane (the appellant) did not maintain a safe distance behind Wanyika (the respondent) or was driving at a high speed that it was impossible for her to avoid colliding with Wanyika’s vehicle. Further and in any event, Jane did not prove that Wanyika’s vehicle had stalled on her lane without any warning signs. Consequently, the court finds Jane wholly responsible for causing the accident and holds her 100% liable for the same”
The appellant being aggrieved by the finding of the trial court on liability raised 8 grounds of appeal but which can be summarized as follows;
-That the learned magistrate erred in law by treating the evidence superficially and in failing to evaluate the evidence in its entirety and thereby reached a wrong conclusion.
The appeal was disposed through written submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate ignored police occurrence book extract that indicated that the respondent was to blame because his motor vehicle had stalled on the road and there was no life saver. The extract also indicates the details of the reporter to be the appellant. The appellant’s position, however, is that a PC Kinoti visited the scene and came to the said conclusion. Unfortunately, the said PC Kinoti was not a witness. The appellant’s case is that the entries in the police occurrence book corroborated he version of events.
The appellant submitted that the respondent was to blame for the accident as it failed to place any warning signs to other road users that his motor vehicle had stalled on the road. The appellant relied on the case of Njuguna Njoroge v Peter Kihiu Mutheru and others (2019) eKLR where the court held that where a vehicle breaks down on the road, the driver of the vehicle is under an obligation to place sufficient warnings signs on the road to warn other road users of the stationery vehicle so as to avoid accidents.
RESPONDENT’S SUBMISSIONS
The respondent submitted that where one motor vehicle rams onto another from the rear, a rebuttable presumption of negligence arises against the driver of the trailing vehicle who bears the duty to maintain a safe distance and proper control of his motor vehicle so as to avoid such a collision. The respondent relied on the case of Atanga v Rojeh (2025) KEHC 6067 (KLR).
The respondent submitted that there was no evidence that his motor vehicle had stalled on the highway. The respondent further relied on the case of Orioki v Kevian Kenya Ltd (2025) KECA 780 (KLR).
ANALYSIS AND DETERMINATION
This court being the first appellate court, I have a duty to evaluate the evidence on record and come to my own conclusion. I however must give allowance to the fact that I never heard or saw the witnesses when they testified.
See Selle and Another v Associated Motor Boat Company Ltd (1968) EA 123.
This jurisdiction entails reviewing the evidence in order to determine whether the conclusion originally reached upon the evidence before the trial court should stand. The jurisdiction must however be exercised with caution. If there is no evidence to support a particular conclusion, as an appellate court, I will not hesitate so to decide.
I have carefully considered the evidence on record before the trial court on liability. The critical evidence in this respect was from the appellant and the respondent. Though the appellant put a lot of premia on the evidence from the police, a critical examination of the police documents including two police abstracts which were relied on by the parties and the occurrence book extract show that the police were not helpful. For instance, the appellant sought to rely on police abstract which placed blame on the appellant. The OB extract which the appellant puts a lot of weight on appeared incredible. Firstly, it emerged that the reporter who influenced the entry details in the OB extract was the appellant who had apparently arrived at the police station earlier than the respondent. PC Kinoti who is listed as the originator of the OB extract was not called as a witness to enable the parties to test his version through cross examination. On my part I find that there is no credible evidence upon which this court can find that the respondent’s motor vehicle had stalled on the road.
The respondent in his evidence testified that the police who visited the scene instructed the appellant and the respondent to drive to Pangani Police Station for purposes of recording their respective statements in the OB. He stated further that he could not drive to the police station immediately because his motor vehicle rear hand side tyre was stuck on the rear wing panel due to the impact of the collision. That he was forced to carry out a first aid repair at the nearby service station before proceeding to the Pangani Police Station.
The appellant in her version testified that a motor vehicle ahead of hers had also blocked the view ahead and it suddenly swerved to avoid ramming onto the appellant’s motor vehicle but that she could not swerve due to the other vehicles on her left side and the road barrier on the right side.
There is no dispute that it is the appellant’s motor vehicle that rammed onto the respondents’ motor vehicle from the rear. The photographs and all the evidence demonstrate that the damage caused to the respondent’s motor vehicle was consistent with his account of what had happened. From the record as a whole, there is no cogent evidence that the respondent’s motor vehicle had stalled on the highway. An entry in an occurrence book only shows a version by one party as reported. It is not conclusive finding as what exactly transpired in an accident scene.
The photographs which were produced as exhibits actually show that there was a third motor vehicle ahead of the respondent’s and this is consistent with his version that he had slowed down due to the obstruction caused by the motor vehicle ahead of his.
Every driver bears a duty to maintain a safe and responsible distance from the motor vehicle ahead so as to ensure that he or she has proper control of their motor vehicle in case of an emergency and a need to react to any occurrence in good time. It was therefore incumbent upon the appellant as the driver of the trailing motor vehicle to maintain a safe distance to enable her have proper control of her motor vehicle so as to avoid colliding with the respondent’s motor vehicle which was ahead.
If we were to believe the appellant’s version, the revelation that a motor vehicle which was immediately ahead of hers was able to avoid the collision only indicate that she was not keen on the road and accordingly failed in her duty of care to other road users as a result of which she rammed onto the respondent’s motor vehicle. I am persuaded by the finding of my brother, B.M. Musyoki, J, in Atanga v Rojeh (2025) KEHC 6067 (KLR) where he held:
“A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind, creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicles from behind creates a prima facie case of negligence against him because in normal circumstance, drivers are expected to concentrate on what is ahead of them and unless there are exceptional causes for such an accident, the driver from behind must be blamed.”
In Orioki v Kevian Kenya Ltd (2025) KECA 780 (KLR) the court of appeal held as follows:
‘Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, when there is insufficient 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’
In light of the above analysis, I find that the appellant has not demonstrated that the trial court considered matters that it should not have considered or failed to consider matters that it should have considered. The trial court correctly found that the appellant was wholly liable for the accident. The appellant failed to maintain a safe distance from the respondent’s motor vehicle and this negligence was the proximate cause of the accident. The appeal is therefore dismissed with costs to the respondent.
DATED, SIGNED AND DELIVERED via Teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1
JUDGMENT
The appellant (Jane Njoki) instituted SCCC E3247 of 2024 against the respondent (Wanyika Ndurumo) on 4.7.24 claiming special damages on behalf of her insurer under subrogation for an accident that occurred on 5.7.2021 involving motor vehicle KCU 704T and the respondent’s motor vehicle KCY 403A. The appellant blamed the respondent for the accident.
On the same date, the respondent also filed his own subrogation suit being SCCC E3249 of 2024 on behalf of his insurer. He on the other hand blamed the appellant. Both suits were consolidated and the respondent’s suit (SCCC E3249 of 2024) was made the lead suit.
The appellant’s case before the lower court is that the respondent had parked a stalled vehicle KCY 403A on the road without any warning signs, thereby leading to the appellant’s motor vehicle KCU 704T ramming onto the respondent’s motor vehicle. The appellant’s case was that the motor vehicle had stalled in the lane for fast moving vehicles.
In her evidence, the appellant stated that a motor vehicle which was moving ahead of her motor vehicle had also blocked the view ahead and the driver suddenly swerved to avoid ramming onto the respondent’s motor vehicle but she could not swerve due to the other vehicles on her left side and also on her right side there was the road barrier.
The respondent on the other hand testified that on the material day, he was lawfully and carefully driving motor vehicle KCY 403A along Thika road when at Utalii College area, he encountered a motor vehicle reg No. KCW 316L which was stalled on the road ahead of him. He was forced to slow down to avoid bumping into the said motor vehicle. That the appellant who was driving motor vehicle KCU 704T directly behind his motor vehicle failed to slow down as a consequence of which motor vehicle reg No. KCU 704T violently rammed onto the rear of his motor vehicle and caused extensive damage.
A police officer who testified as CW3 No. 81685 senior sergeant Maurine Odero, brought to the attention of the court two police abstracts dated 6.7.2021, which blamed the respondent for the accident, and one dated 7.7.2024 which indicated that the appellant was to blame for the accident. The trial magistrate found the police officer’s evidence unreliable.
Confronted with two conflicting accounts of how the accident occurred, the trial magistrate in her judgment stated as follows:
“In this case, it is clear that Jane (the appellant) did not maintain a safe distance behind Wanyika (the respondent) or was driving at a high speed that it was impossible for her to avoid colliding with Wanyika’s vehicle. Further and in any event, Jane did not prove that Wanyika’s vehicle had stalled on her lane without any warning signs. Consequently, the court finds Jane wholly responsible for causing the accident and holds her 100% liable for the same”
The appellant being aggrieved by the finding of the trial court on liability raised 8 grounds of appeal but which can be summarized as follows;
-That the learned magistrate erred in law by treating the evidence superficially and in failing to evaluate the evidence in its entirety and thereby reached a wrong conclusion.
The appeal was disposed through written submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate ignored police occurrence book extract that indicated that the respondent was to blame because his motor vehicle had stalled on the road and there was no life saver. The extract also indicates the details of the reporter to be the appellant. The appellant’s position, however, is that a PC Kinoti visited the scene and came to the said conclusion. Unfortunately, the said PC Kinoti was not a witness. The appellant’s case is that the entries in the police occurrence book corroborated he version of events.
The appellant submitted that the respondent was to blame for the accident as it failed to place any warning signs to other road users that his motor vehicle had stalled on the road. The appellant relied on the case of Njuguna Njoroge v Peter Kihiu Mutheru and others (2019) eKLR where the court held that where a vehicle breaks down on the road, the driver of the vehicle is under an obligation to place sufficient warnings signs on the road to warn other road users of the stationery vehicle so as to avoid accidents.
RESPONDENT’S SUBMISSIONS
The respondent submitted that where one motor vehicle rams onto another from the rear, a rebuttable presumption of negligence arises against the driver of the trailing vehicle who bears the duty to maintain a safe distance and proper control of his motor vehicle so as to avoid such a collision. The respondent relied on the case of Atanga v Rojeh (2025) KEHC 6067 (KLR).
The respondent submitted that there was no evidence that his motor vehicle had stalled on the highway. The respondent further relied on the case of Orioki v Kevian Kenya Ltd (2025) KECA 780 (KLR).
ANALYSIS AND DETERMINATION
This court being the first appellate court, I have a duty to evaluate the evidence on record and come to my own conclusion. I however must give allowance to the fact that I never heard or saw the witnesses when they testified.
See Selle and Another v Associated Motor Boat Company Ltd (1968) EA 123.
This jurisdiction entails reviewing the evidence in order to determine whether the conclusion originally reached upon the evidence before the trial court should stand. The jurisdiction must however be exercised with caution. If there is no evidence to support a particular conclusion, as an appellate court, I will not hesitate so to decide.
I have carefully considered the evidence on record before the trial court on liability. The critical evidence in this respect was from the appellant and the respondent. Though the appellant put a lot of premia on the evidence from the police, a critical examination of the police documents including two police abstracts which were relied on by the parties and the occurrence book extract show that the police were not helpful. For instance, the appellant sought to rely on police abstract which placed blame on the appellant. The OB extract which the appellant puts a lot of weight on appeared incredible. Firstly, it emerged that the reporter who influenced the entry details in the OB extract was the appellant who had apparently arrived at the police station earlier than the respondent. PC Kinoti who is listed as the originator of the OB extract was not called as a witness to enable the parties to test his version through cross examination. On my part I find that there is no credible evidence upon which this court can find that the respondent’s motor vehicle had stalled on the road.
The respondent in his evidence testified that the police who visited the scene instructed the appellant and the respondent to drive to Pangani Police Station for purposes of recording their respective statements in the OB. He stated further that he could not drive to the police station immediately because his motor vehicle rear hand side tyre was stuck on the rear wing panel due to the impact of the collision. That he was forced to carry out a first aid repair at the nearby service station before proceeding to the Pangani Police Station.
The appellant in her version testified that a motor vehicle ahead of hers had also blocked the view ahead and it suddenly swerved to avoid ramming onto the appellant’s motor vehicle but that she could not swerve due to the other vehicles on her left side and the road barrier on the right side.
There is no dispute that it is the appellant’s motor vehicle that rammed onto the respondents’ motor vehicle from the rear. The photographs and all the evidence demonstrate that the damage caused to the respondent’s motor vehicle was consistent with his account of what had happened. From the record as a whole, there is no cogent evidence that the respondent’s motor vehicle had stalled on the highway. An entry in an occurrence book only shows a version by one party as reported. It is not conclusive finding as what exactly transpired in an accident scene.
The photographs which were produced as exhibits actually show that there was a third motor vehicle ahead of the respondent’s and this is consistent with his version that he had slowed down due to the obstruction caused by the motor vehicle ahead of his.
Every driver bears a duty to maintain a safe and responsible distance from the motor vehicle ahead so as to ensure that he or she has proper control of their motor vehicle in case of an emergency and a need to react to any occurrence in good time. It was therefore incumbent upon the appellant as the driver of the trailing motor vehicle to maintain a safe distance to enable her have proper control of her motor vehicle so as to avoid colliding with the respondent’s motor vehicle which was ahead.
If we were to believe the appellant’s version, the revelation that a motor vehicle which was immediately ahead of hers was able to avoid the collision only indicate that she was not keen on the road and accordingly failed in her duty of care to other road users as a result of which she rammed onto the respondent’s motor vehicle. I am persuaded by the finding of my brother, B.M. Musyoki, J, in Atanga v Rojeh (2025) KEHC 6067 (KLR) where he held:
“A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind, creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicles from behind creates a prima facie case of negligence against him because in normal circumstance, drivers are expected to concentrate on what is ahead of them and unless there are exceptional causes for such an accident, the driver from behind must be blamed.”
In Orioki v Kevian Kenya Ltd (2025) KECA 780 (KLR) the court of appeal held as follows:
‘Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, when there is insufficient 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’
In light of the above analysis, I find that the appellant has not demonstrated that the trial court considered matters that it should not have considered or failed to consider matters that it should have considered. The trial court correctly found that the appellant was wholly liable for the accident. The appellant failed to maintain a safe distance from the respondent’s motor vehicle and this negligence was the proximate cause of the accident. The appeal is therefore dismissed with costs to the respondent.
DATED, SIGNED AND DELIVERED via Teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1