REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E1346 OF 2023
MIKELINA NJERI MWAI
ANNE WAIRIMU WANJIRU (Suing as the legal representatives
Of the estate of PETER GATHOGO MWAI................................................... APPELLANTS
VERSUS
MOSES NGUGI...................................................................................................1 ST RESPONDENT
JOHN NJIRU NDOVO.......................................................................................2 ND RESPONDENT
(Being an appeal from the judgment and decree delivered by Hon. S. A. Opande (Principal Magistrate) on 6 th November 2023 in Nairobi CMCC No. 5270 of 2018)
JUDGMENT
1. The appellants filed this appeal through a memorandum dated 1 st November 2023. The appeal is on one issue only, the assessment of liability in a claim for general and special damages under the Law Reform Act (Cap. 26) Laws of Kenya, for the estate and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents of the deceased following a fatal road traffic accident involving the deceased, who was riding a motorcycle registration number KMDP 618L and a motor vehicle registration number KCD 761Y owned by the 1 st respondent and driven by the 2 nd respondent.
2. The appellants were the plaintiffs while the respondents were the defendants before the trial court.
3. At the trial, one of the appellants Ann Wairimu Wanjiru, the mother of the deceased testified as PW 1 and called two other witnesses, PW 2, Amos Githinji Irungu, a witness who was nearby and heard a loud bang then went to the scene and attended to the deceased and PW 2, PC Masinde Sindani from Buru Buru police station who produced the police abstract dated 9 th June 2026 issued in the matter following the accident.
4. For the respondents, the 2 nd respondent’s written witness statement dated 10 th January 2017 was adopted by consent of the parties as evidence for the defence without calling the maker. The respondents also called one witness, DW 1, Police Corporal Philip Munga Atia of Buru Buru police station who produced yet another police abstract dated 26 th September 2016. This police abstract is not part of the record of appeal and neither is it available in the lower court file made available to this court and which I have looked at. However, that does not make difference to the case seeing that the witness who produced it was not the investigating officer and his evidence did not add any value to the case. In fact, the evidence of both police officers had no value to the case. Each said he was not the investigating officer in the case. None of them said he visted the scene of the accident. None of them produced any maps, sketch plans or drawings of the scene of the accident. None of them spoke of how the accident occurred.
5. Evidence of how the accident occurred was taken from PW 2, Amos Githinji Irungu and the written statement of the driver of the accident vehicle. I will later in this judgment reproduce material parts of both statements for a fuller appreciation of their respective contents.
6. PW 3 said that the driver of the accident vehicle had been charged with the traffic offence of causing death by dangerous driving and at the time of testifying in court, the traffic case was still pending before court.
7. After trial the learned magistrate in his judgment found that the appellants had not proved their case against the respondents on a balance of probability and dismissed it. The learned magistrate found that PW 2 (whom the learned trial magistrate repeatedly referred to as PW 1 in the judgment) did not witness the occurrence of the accident because when he looked in the direction the loud bang had come from, he saw that an accident had already occurred. He found further that the net effect was that the only eye witness to the accident was the driver whose written witness statement had been admitted by consent. Further that since the contents of the witness statement of the driver had not been challenged he had no cause to distrust him since counsel for the appellants had also not found cause not to believe it. He then faulted counsel for the appellants for taking a shortcut by not seeking to cross-examine the driver, which in the end would turn out to be costly. To this end, he cited the case of James Njoro Kibutiri v Eliud Njau Kibutiri 1 KAR 60 [1983] KLR 62; [1976-1985] EA 220.
8. The learned trial magistrate proceeded to correctly assess the damages that would have been payable to the appellants as follows:
a. Pain and suffering KShs 50,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 1,200,000/=
d. Special damages KShs 66,200/= (as pleaded)
9. The appellants were dissatisfied with that decision on liability and have filed the present appeal based on the following grounds:
a. The Learned Magistrate misdirected himself in both in law and in fact and arrived at an erroneous decision in failing to acknowledge that the eye witness who was called by the plaintiff, witnessed the point of impact of the accident which shows that the 2 nd defendant was overtaking and driving on the wrong side of the road and that no evidence to the contrary was adduced by the respondents during the trial.
b. The learned magistrate failed to take into account that the evidence of the eye witness and PW 3, Corporal Masinde, were in tandem as to the point of impact of the accident being on the wrong side of the road and thus by the 2 nd respondent merely stating that he was not the one who caused the accident despite the overwhelming evidence on record, the trial court arrived at an erroneous decision.
c. The trial magistrate failed to consider the crucial evidence of PW 3 who was the investigating officer and condcteed investigations on the point of impact of the said accident and which was the wrong side of the road and which informed the decision to charge the 2 nd respondent in Makadara Traffic Case No. 2715 of 2016, Republic v. John Njiru Ndovu with causing death by dangerous driving.
d. The learned magistrate misdirected himself in both law and fact by placing a heavy evidentiary burden on the appellant who had sufficiently proved her claim to the required standard of the law.
e. The learned magistrate erred in both law and fact in failing to appreciate that there were sufficient reasons for the court to enter judgment against the defendants.
10. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court and substitute it with an order allowing the appellants’ suit in the trial court and the court to award the probable damages as assessed by the lower court together with costs of the appeal and in the lower court.
11. The appeal was canvassed by way of written submissions filed by both parties which are considered in the analysis that follows.
12. 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.
13. 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 the appellants proved their case of negligence against the respondents or not and whether or not the learned trial magistrate properly evaluated the evidence before him and acted on correct principles in arriving at his decision on liability.
14. Learned counsel for the appellant submits that the appellants and the defendants gave contradictory evidence of how the accident occurred and it was incumbent upon the trial court to evaluate the evidence of the witnesses and make a decision on whose evidence was probable. He concedes that PW 2 did not witness the accident but states that having heard a loud bang, that means that there was contact between the deceased and the accident motor vehicle. He says further that the evidence of PW 2 was corroborated by that of PW 3 while the statement of the driver had no corroboration.
15. Learned counsel for the respondent on his part supports the findings of the trial court that the appellants failed to prove their case that the respondents were to blame for the accident.
16. Learned counsel for the respondent submits that from the evidence of PW 2, he did not see how the accident occurred, and thus his evidence cannot be used to attribute any liability.
17. 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 appellants had not proved their case on a balance of probability.
18. The only witness who was at the scene of the accident upon its occurrence was PW 2, Amos Githinji Irungu. He gave evidence of what he witnessed at the scene. He said the accident occurred near his place of work and that the deceased was known to him and was his friend.
“ On or about 3 rd June 2016 at around 5.30 p.m. I was at my place of work just about to close my shop when I heard a loud bang. I quickly looked at the direction where the noise had come from and that is when I saw it was an accident that had occurred.
I quickly dashed to the scene of accident which was a few metres from my shop. When I got there, I found a matatu which plies route 36 had hit an oncoming motor cycle. People at the scene were saying that the matatu that hit the motor cycle rider was attempting to overtake another matatu and then the accident occurred.
The motor cycle rider was stuck at thr right front wheel of the matatu that had hit him. The matatu was coming from town while the motor cycle was heading towards town .
When I got closer, I realized that it was my friend Peter, who had been hit. We managed to move the deceased away from the wheel and closer to his motor cycle.”
19. On his part, the driver of the matatu, the 2 nd respondent did not testify in court. Rather his witness statement was adopted without even calling him to adopt it under oath. In his said witness statement he agreed with PW 2 on the date, time and place of the accident and went on to state that and also that he was driving from town direction towards Dandora. He wrote as follows:
“ I was driving from City stadium to Dandora terminus. On reaching Dandora phase 3, a boda boda cyclist was overtaking my vehicle from the right side of the road through a pavement and he suddenly knocked a woman pedestrian and the impact through him to the road where he lost control and landed on the tarmac from the head in front of my vehicle KCD 761- (the last letter is not provided) and I applied the emergency brake. There was no contact whatsoever with the cyclist. His colleagues who were at the scene then descendent on me accusing me of knocking down the cyclist and forcing me to take him to the hospital .”
20. It is apparent from the excerpts of the evidence by PW 2 and the witness statement of the driver of the vehicle that the learned trial magistrate left out material evidence in his evaluation and also failed to place the evidence of the two side by side and consider it as such. I think his mind may have been clouded by his first approaching the case as one where there was evidence of the driver as the only eye witness. That was erroneous. The fact that PW 2 did not see the collision and impact as it happened does not mean that whatever else he saw could not be relevant to how the accident occurred.
21. PW 2 testified, and this was not rebutted that he operates his shop near the accident scene, he heard a bang and immediately proceeded to the scene. What he perceived at the scene was eye-witness testimony. He said that he assisted the deceased who was stuck in the matatu’s front right tyre. He therefore saw the position of the matatu in relation to the deceased and the motorcycle.
22. In the first place, the driver’s statement was not taken under oath as was the evidence of PW 2. It was an unsworn statement regardless of the fact that the appellant’s counsel had consented that it be produced as his evidence. It would have been different if the driver had attended court, adopted the statement under oath and learned counsel for the appellant failed to cross-examine him. Whereas it was not outright hearsay evidence, it was of a lower probative value than the sworn evidence of PW 2. Failing to offer the witness for cross-examination meant that the credibility of that witness, inconsistencies and biases in his statement could not be tested.
23. Therefore, in as much as the short cut was not favourable to the appellants, as commented by the learned trial magistrate, in fact, it was more disadvantageous to the respondents because it also meant that the respondents were placing the witness statement on a lower pedestal than that of PW 2, the witness for the appellants who had given evidence on oath. The weight to be attached to a witness statement is obviously lower than that of sworn evidence which is subjected to cross-examination which has been referred to as, “the greatest legal engine ever invented for the discovery of truth” as per the American legal scholar Professor J. H. Wigmore,. in Evidence , 3 rd ed. V §1367, quoted in Glanville Williams, The Proof of Guilt (3 rd ed. Stevens & Sons, London, 1963) p.79. The statement could only be used as corroborative evidence of other primary evidence. In this case, there was no other primary evidence for the respondent which that statement supported. The learned trial magistrate therefore gave undue weight to the witness statement of the driver.
24. With that in mind, the next issue is to consider the evidence of PW 2 as against the statement of the driver. As stated above, the learned magistrate’s evaluation of the incident was hampered by his initial dismissal of the evidence of PW 2 beforehand as not being eye witness evidence and therefore not useful in determining the case. As submitted by learned counsel for the appellants, it is true that PW 2 did not see but heard the impact of the accident. However, he was nearby and immediately moved to the scene and then he was able to see the scene as it was immediately after the accident.
25. His eye-witness evidence was that when he got to the scene, he found a matatu which plies route 36 had hit an oncoming motor cycle. In finding that the driver’s statement was not challenged, the learned trial magistrate does not seem to have noticed this crucial piece of evidence that the, “matatu had hit an oncoming motor cycle.” PW 2 went further to state that, “the motor cycle rider was stuck at the right front wheel of the matatu,” and also that “the matatu was coming from town while the motor cycle was heading towards town.” In cross-examination he said that, “ the accident was head on ”. This narrative by PW 2 was an eye-witness account of what he perceived with his eyes. The learned trial magistrate did not give it any consideration.
26. PW 2 went on and stated that people at the scene were saying that the matatu that hit the motor cycle rider was attempting to overtake another matatu and then the accident occurred. That the matatu was attempting to overtake another, was at that point hearsay evidence because the witness did not perceive the overtaking with his eyes. However, that part of his evidence received support from the driver’s witness statement.
27. The driver stated that the deceased was overtaking his vehicle on the right on a pavement. In the the normal course of driving on a road, the probable course of events is that if the driver of the vehicle was on his left lane on the road and the deceased was overtaking him on the right, the motor cycle would not be overtaking the matatu on a pavement on the right handside of the matatu driver. It could only mean that the vehicle was occupying the right lane such that the motor cycle had to move onto the pavement. This would then support the evidence of PW 2 that indeed the matatu was being driven on the right hand lane instead of the lefthand lane. It supports the assertion by PW 2, which was otherwise hearsay, that in fact the driver of the vehicle was overtaking another matatu when the accident occurred.
28. What remained to be resolved then was who between PW 2 and the driver’s version of how the accident occurred was probable. The driver said that the motor cycle was overtaking the vehicle, meaning they were moving in the oppsite direction while PW 2 said the vehicle and motor cycle were moving in oppsite directions when the vehicle hit the motor cycle. In determining who was credible, there is the evidence that whichever direction the motor cycle was moving, the vehicle was on the righ hand lane and without explanation from the driver, then it was overtaking. However, the evidence of PW 2, an independent witness, given on oath has to be given more weight than the statement of the driver. One other issue the driver mentioned in his statement was that the deceased had hit a woman and then lost control and he fell on the road.
29. The issue of the deceased hitting a woman was very crucial to the driver’s statement such that if indeed it was the case, learned counsel for the respondents would not have failed to cross-examine PW 2 on the same. He did not do so and from that I find that it was never the case, especially seeing that the driver wrote his statement on 10 th January 2017, some seven months after the accident. At the same time, PW 2 did not mention in his evidence that there was a woman who had been hit by the motor cycle at the scene. I do not think that if indeed there was such a woman, he would have failed to do so.
30. In the end therefore, I find that there was evidence to believe the version of the accident as testified by PW 2 and not the witness statement of the driver. The witness statement of the driver was discounted by the strong evidence offered by PW 2 on his eye-witness account of what occurred.
31. The circumstances of the accident were that the matatu being driven by the 2 nd respondent collided with an oncoming motorcycle ridden by the deceased on the lane of the deceased thereby causing him fatal injuries. Therefore, the learned trial magistrate erred in finding that the appellants had failed to support their case with sufficient evidence.
32. Finally, on the eye witness evidence of PW 2, he said that the deceased was stuck at the right front wheel (or tyre) of the matatu and they managed to move him away from there. On his part, the driver wrote in his witness statement that there was no contact between the motor cyclist and the vehicle he was driving. He also alleged that the motorcyclist hit his head on the tarmac, an indication that he may have died due to hitting the head on tarmac. I have found that the evidence of PW 2 was more credible than that of the driver.
33. The evidence of PW 2 and the witness statement of the driver should be considered with the evidence of the postmortem examination tendered through the report dated 19 th July 2016 prepared by Dr. C. K. Mutwi, pathologist, which was produced by PW 1 without objection. In the report, the post mortem examination was conducted on 7 th June 2016, about four days after the accident. The results were as follows:
a. External examination revealed extensive frictional abrasions over the back of both forearms with a few abrasions on the the right palm and knees. The only injuries noted on the head upon external examination were bruises over the right forehead with other bruises over the right shoulder, lower chest and upper abdomen and left lower abdomen.
b. Internal examination revealed that:
i. The deceased had fractured ribs on the right side from the 5 th rib to 11 th rib and heamothorax approximately 100 ml. There were also few contusions on the right lung, mid and lower lobes.
ii. Cardio-Vascular system was normal. In the digestive system, the liver revealed multiple lacerations on the right lobe, multiple contusions on the stomach, small and large gut; haemoperitoneum approximately 1500 – 2000 ml.
iii. Genito-Urinary System revealed contusions on the right kidney and extensive haematoma around the organ.
iv. On the head there were no skull fractures.
v. The nervous system, spinal column and spinal cord were all normal.
34. As a result of the examination, the doctor formed the opinion that the cause of death was exsanguination following blunt force trauma to the chest and abdomen consistent with road traffic accident.
35. It is apparent from the findings of the post mortem that the deceased’s head was not so injured as to have caused him the death. However, the injuries sustained around the rib and abdomen regions, were consistent with the deceased having been struck and stuck by the motor vehicle tyre as testified by PW 2 rather than having landed on the tarmac on his head, as alleged in the statement of the driver.
36. 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.”
37. In the present case there was credible evidence by PW 2 that pointed to the driver of the vehicle, the 2 nd respondent as the one who caused the accident by driving in the lane of the motorcycle that the deceased was riding thereby causing the collision that caused the death of the deceased. In the circumstances, I find the 2 nd respondent was wholly to blame for the accident and 1 st respondent was vicariously liable for the same.
38. Consequently, I find that the appeal has merit and is hereby allowed on the issue of liability. The trial court’s finding that the appellants had not proved their case on a balance of probability is hereby set aside and substituted with a finding that the 2 nd respondent was wholly liable for the accident with the 1 st respondent being vicariously liable. Judgment be and is heraby entered for the appellants against the respondents jointly and severally in the sum of KShs 1,416,200/= together with interest at court rates and costs both in the lower court and this appeal.
39. Orders accordingly.
40. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 25 th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellants.
N/A for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
milimani HCCA No. e1346 of 202311/liability-RTA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E1346 OF 2023
MIKELINA NJERI MWAI
ANNE WAIRIMU WANJIRU (Suing as the legal representatives
Of the estate of PETER GATHOGO MWAI................................................... APPELLANTS
VERSUS
MOSES NGUGI...................................................................................................1 ST RESPONDENT
JOHN NJIRU NDOVO.......................................................................................2 ND RESPONDENT
(Being an appeal from the judgment and decree delivered by Hon. S. A. Opande (Principal Magistrate) on 6 th November 2023 in Nairobi CMCC No. 5270 of 2018)
JUDGMENT
1. The appellants filed this appeal through a memorandum dated 1 st November 2023. The appeal is on one issue only, the assessment of liability in a claim for general and special damages under the Law Reform Act (Cap. 26) Laws of Kenya, for the estate and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents of the deceased following a fatal road traffic accident involving the deceased, who was riding a motorcycle registration number KMDP 618L and a motor vehicle registration number KCD 761Y owned by the 1 st respondent and driven by the 2 nd respondent.
2. The appellants were the plaintiffs while the respondents were the defendants before the trial court.
3. At the trial, one of the appellants Ann Wairimu Wanjiru, the mother of the deceased testified as PW 1 and called two other witnesses, PW 2, Amos Githinji Irungu, a witness who was nearby and heard a loud bang then went to the scene and attended to the deceased and PW 2, PC Masinde Sindani from Buru Buru police station who produced the police abstract dated 9 th June 2026 issued in the matter following the accident.
4. For the respondents, the 2 nd respondent’s written witness statement dated 10 th January 2017 was adopted by consent of the parties as evidence for the defence without calling the maker. The respondents also called one witness, DW 1, Police Corporal Philip Munga Atia of Buru Buru police station who produced yet another police abstract dated 26 th September 2016. This police abstract is not part of the record of appeal and neither is it available in the lower court file made available to this court and which I have looked at. However, that does not make difference to the case seeing that the witness who produced it was not the investigating officer and his evidence did not add any value to the case. In fact, the evidence of both police officers had no value to the case. Each said he was not the investigating officer in the case. None of them said he visted the scene of the accident. None of them produced any maps, sketch plans or drawings of the scene of the accident. None of them spoke of how the accident occurred.
5. Evidence of how the accident occurred was taken from PW 2, Amos Githinji Irungu and the written statement of the driver of the accident vehicle. I will later in this judgment reproduce material parts of both statements for a fuller appreciation of their respective contents.
6. PW 3 said that the driver of the accident vehicle had been charged with the traffic offence of causing death by dangerous driving and at the time of testifying in court, the traffic case was still pending before court.
7. After trial the learned magistrate in his judgment found that the appellants had not proved their case against the respondents on a balance of probability and dismissed it. The learned magistrate found that PW 2 (whom the learned trial magistrate repeatedly referred to as PW 1 in the judgment) did not witness the occurrence of the accident because when he looked in the direction the loud bang had come from, he saw that an accident had already occurred. He found further that the net effect was that the only eye witness to the accident was the driver whose written witness statement had been admitted by consent. Further that since the contents of the witness statement of the driver had not been challenged he had no cause to distrust him since counsel for the appellants had also not found cause not to believe it. He then faulted counsel for the appellants for taking a shortcut by not seeking to cross-examine the driver, which in the end would turn out to be costly. To this end, he cited the case of James Njoro Kibutiri v Eliud Njau Kibutiri 1 KAR 60 [1983] KLR 62; [1976-1985] EA 220.
8. The learned trial magistrate proceeded to correctly assess the damages that would have been payable to the appellants as follows:
a. Pain and suffering KShs 50,000/=
b. Loss of expectation of life KShs 100,000/=
c. Loss of dependency KShs 1,200,000/=
d. Special damages KShs 66,200/= (as pleaded)
9. The appellants were dissatisfied with that decision on liability and have filed the present appeal based on the following grounds:
a. The Learned Magistrate misdirected himself in both in law and in fact and arrived at an erroneous decision in failing to acknowledge that the eye witness who was called by the plaintiff, witnessed the point of impact of the accident which shows that the 2 nd defendant was overtaking and driving on the wrong side of the road and that no evidence to the contrary was adduced by the respondents during the trial.
b. The learned magistrate failed to take into account that the evidence of the eye witness and PW 3, Corporal Masinde, were in tandem as to the point of impact of the accident being on the wrong side of the road and thus by the 2 nd respondent merely stating that he was not the one who caused the accident despite the overwhelming evidence on record, the trial court arrived at an erroneous decision.
c. The trial magistrate failed to consider the crucial evidence of PW 3 who was the investigating officer and condcteed investigations on the point of impact of the said accident and which was the wrong side of the road and which informed the decision to charge the 2 nd respondent in Makadara Traffic Case No. 2715 of 2016, Republic v. John Njiru Ndovu with causing death by dangerous driving.
d. The learned magistrate misdirected himself in both law and fact by placing a heavy evidentiary burden on the appellant who had sufficiently proved her claim to the required standard of the law.
e. The learned magistrate erred in both law and fact in failing to appreciate that there were sufficient reasons for the court to enter judgment against the defendants.
10. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court and substitute it with an order allowing the appellants’ suit in the trial court and the court to award the probable damages as assessed by the lower court together with costs of the appeal and in the lower court.
11. The appeal was canvassed by way of written submissions filed by both parties which are considered in the analysis that follows.
12. 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.
13. 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 the appellants proved their case of negligence against the respondents or not and whether or not the learned trial magistrate properly evaluated the evidence before him and acted on correct principles in arriving at his decision on liability.
14. Learned counsel for the appellant submits that the appellants and the defendants gave contradictory evidence of how the accident occurred and it was incumbent upon the trial court to evaluate the evidence of the witnesses and make a decision on whose evidence was probable. He concedes that PW 2 did not witness the accident but states that having heard a loud bang, that means that there was contact between the deceased and the accident motor vehicle. He says further that the evidence of PW 2 was corroborated by that of PW 3 while the statement of the driver had no corroboration.
15. Learned counsel for the respondent on his part supports the findings of the trial court that the appellants failed to prove their case that the respondents were to blame for the accident.
16. Learned counsel for the respondent submits that from the evidence of PW 2, he did not see how the accident occurred, and thus his evidence cannot be used to attribute any liability.
17. 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 appellants had not proved their case on a balance of probability.
18. The only witness who was at the scene of the accident upon its occurrence was PW 2, Amos Githinji Irungu. He gave evidence of what he witnessed at the scene. He said the accident occurred near his place of work and that the deceased was known to him and was his friend.
“ On or about 3 rd June 2016 at around 5.30 p.m. I was at my place of work just about to close my shop when I heard a loud bang. I quickly looked at the direction where the noise had come from and that is when I saw it was an accident that had occurred.
I quickly dashed to the scene of accident which was a few metres from my shop. When I got there, I found a matatu which plies route 36 had hit an oncoming motor cycle. People at the scene were saying that the matatu that hit the motor cycle rider was attempting to overtake another matatu and then the accident occurred.
The motor cycle rider was stuck at thr right front wheel of the matatu that had hit him. The matatu was coming from town while the motor cycle was heading towards town .
When I got closer, I realized that it was my friend Peter, who had been hit. We managed to move the deceased away from the wheel and closer to his motor cycle.”
19. On his part, the driver of the matatu, the 2 nd respondent did not testify in court. Rather his witness statement was adopted without even calling him to adopt it under oath. In his said witness statement he agreed with PW 2 on the date, time and place of the accident and went on to state that and also that he was driving from town direction towards Dandora. He wrote as follows:
“ I was driving from City stadium to Dandora terminus. On reaching Dandora phase 3, a boda boda cyclist was overtaking my vehicle from the right side of the road through a pavement and he suddenly knocked a woman pedestrian and the impact through him to the road where he lost control and landed on the tarmac from the head in front of my vehicle KCD 761- (the last letter is not provided) and I applied the emergency brake. There was no contact whatsoever with the cyclist. His colleagues who were at the scene then descendent on me accusing me of knocking down the cyclist and forcing me to take him to the hospital .”
20. It is apparent from the excerpts of the evidence by PW 2 and the witness statement of the driver of the vehicle that the learned trial magistrate left out material evidence in his evaluation and also failed to place the evidence of the two side by side and consider it as such. I think his mind may have been clouded by his first approaching the case as one where there was evidence of the driver as the only eye witness. That was erroneous. The fact that PW 2 did not see the collision and impact as it happened does not mean that whatever else he saw could not be relevant to how the accident occurred.
21. PW 2 testified, and this was not rebutted that he operates his shop near the accident scene, he heard a bang and immediately proceeded to the scene. What he perceived at the scene was eye-witness testimony. He said that he assisted the deceased who was stuck in the matatu’s front right tyre. He therefore saw the position of the matatu in relation to the deceased and the motorcycle.
22. In the first place, the driver’s statement was not taken under oath as was the evidence of PW 2. It was an unsworn statement regardless of the fact that the appellant’s counsel had consented that it be produced as his evidence. It would have been different if the driver had attended court, adopted the statement under oath and learned counsel for the appellant failed to cross-examine him. Whereas it was not outright hearsay evidence, it was of a lower probative value than the sworn evidence of PW 2. Failing to offer the witness for cross-examination meant that the credibility of that witness, inconsistencies and biases in his statement could not be tested.
23. Therefore, in as much as the short cut was not favourable to the appellants, as commented by the learned trial magistrate, in fact, it was more disadvantageous to the respondents because it also meant that the respondents were placing the witness statement on a lower pedestal than that of PW 2, the witness for the appellants who had given evidence on oath. The weight to be attached to a witness statement is obviously lower than that of sworn evidence which is subjected to cross-examination which has been referred to as, “the greatest legal engine ever invented for the discovery of truth” as per the American legal scholar Professor J. H. Wigmore,. in Evidence , 3 rd ed. V §1367, quoted in Glanville Williams, The Proof of Guilt (3 rd ed. Stevens & Sons, London, 1963) p.79. The statement could only be used as corroborative evidence of other primary evidence. In this case, there was no other primary evidence for the respondent which that statement supported. The learned trial magistrate therefore gave undue weight to the witness statement of the driver.
24. With that in mind, the next issue is to consider the evidence of PW 2 as against the statement of the driver. As stated above, the learned magistrate’s evaluation of the incident was hampered by his initial dismissal of the evidence of PW 2 beforehand as not being eye witness evidence and therefore not useful in determining the case. As submitted by learned counsel for the appellants, it is true that PW 2 did not see but heard the impact of the accident. However, he was nearby and immediately moved to the scene and then he was able to see the scene as it was immediately after the accident.
25. His eye-witness evidence was that when he got to the scene, he found a matatu which plies route 36 had hit an oncoming motor cycle. In finding that the driver’s statement was not challenged, the learned trial magistrate does not seem to have noticed this crucial piece of evidence that the, “matatu had hit an oncoming motor cycle.” PW 2 went further to state that, “the motor cycle rider was stuck at the right front wheel of the matatu,” and also that “the matatu was coming from town while the motor cycle was heading towards town.” In cross-examination he said that, “ the accident was head on ”. This narrative by PW 2 was an eye-witness account of what he perceived with his eyes. The learned trial magistrate did not give it any consideration.
26. PW 2 went on and stated that people at the scene were saying that the matatu that hit the motor cycle rider was attempting to overtake another matatu and then the accident occurred. That the matatu was attempting to overtake another, was at that point hearsay evidence because the witness did not perceive the overtaking with his eyes. However, that part of his evidence received support from the driver’s witness statement.
27. The driver stated that the deceased was overtaking his vehicle on the right on a pavement. In the the normal course of driving on a road, the probable course of events is that if the driver of the vehicle was on his left lane on the road and the deceased was overtaking him on the right, the motor cycle would not be overtaking the matatu on a pavement on the right handside of the matatu driver. It could only mean that the vehicle was occupying the right lane such that the motor cycle had to move onto the pavement. This would then support the evidence of PW 2 that indeed the matatu was being driven on the right hand lane instead of the lefthand lane. It supports the assertion by PW 2, which was otherwise hearsay, that in fact the driver of the vehicle was overtaking another matatu when the accident occurred.
28. What remained to be resolved then was who between PW 2 and the driver’s version of how the accident occurred was probable. The driver said that the motor cycle was overtaking the vehicle, meaning they were moving in the oppsite direction while PW 2 said the vehicle and motor cycle were moving in oppsite directions when the vehicle hit the motor cycle. In determining who was credible, there is the evidence that whichever direction the motor cycle was moving, the vehicle was on the righ hand lane and without explanation from the driver, then it was overtaking. However, the evidence of PW 2, an independent witness, given on oath has to be given more weight than the statement of the driver. One other issue the driver mentioned in his statement was that the deceased had hit a woman and then lost control and he fell on the road.
29. The issue of the deceased hitting a woman was very crucial to the driver’s statement such that if indeed it was the case, learned counsel for the respondents would not have failed to cross-examine PW 2 on the same. He did not do so and from that I find that it was never the case, especially seeing that the driver wrote his statement on 10 th January 2017, some seven months after the accident. At the same time, PW 2 did not mention in his evidence that there was a woman who had been hit by the motor cycle at the scene. I do not think that if indeed there was such a woman, he would have failed to do so.
30. In the end therefore, I find that there was evidence to believe the version of the accident as testified by PW 2 and not the witness statement of the driver. The witness statement of the driver was discounted by the strong evidence offered by PW 2 on his eye-witness account of what occurred.
31. The circumstances of the accident were that the matatu being driven by the 2 nd respondent collided with an oncoming motorcycle ridden by the deceased on the lane of the deceased thereby causing him fatal injuries. Therefore, the learned trial magistrate erred in finding that the appellants had failed to support their case with sufficient evidence.
32. Finally, on the eye witness evidence of PW 2, he said that the deceased was stuck at the right front wheel (or tyre) of the matatu and they managed to move him away from there. On his part, the driver wrote in his witness statement that there was no contact between the motor cyclist and the vehicle he was driving. He also alleged that the motorcyclist hit his head on the tarmac, an indication that he may have died due to hitting the head on tarmac. I have found that the evidence of PW 2 was more credible than that of the driver.
33. The evidence of PW 2 and the witness statement of the driver should be considered with the evidence of the postmortem examination tendered through the report dated 19 th July 2016 prepared by Dr. C. K. Mutwi, pathologist, which was produced by PW 1 without objection. In the report, the post mortem examination was conducted on 7 th June 2016, about four days after the accident. The results were as follows:
a. External examination revealed extensive frictional abrasions over the back of both forearms with a few abrasions on the the right palm and knees. The only injuries noted on the head upon external examination were bruises over the right forehead with other bruises over the right shoulder, lower chest and upper abdomen and left lower abdomen.
b. Internal examination revealed that:
i. The deceased had fractured ribs on the right side from the 5 th rib to 11 th rib and heamothorax approximately 100 ml. There were also few contusions on the right lung, mid and lower lobes.
ii. Cardio-Vascular system was normal. In the digestive system, the liver revealed multiple lacerations on the right lobe, multiple contusions on the stomach, small and large gut; haemoperitoneum approximately 1500 – 2000 ml.
iii. Genito-Urinary System revealed contusions on the right kidney and extensive haematoma around the organ.
iv. On the head there were no skull fractures.
v. The nervous system, spinal column and spinal cord were all normal.
34. As a result of the examination, the doctor formed the opinion that the cause of death was exsanguination following blunt force trauma to the chest and abdomen consistent with road traffic accident.
35. It is apparent from the findings of the post mortem that the deceased’s head was not so injured as to have caused him the death. However, the injuries sustained around the rib and abdomen regions, were consistent with the deceased having been struck and stuck by the motor vehicle tyre as testified by PW 2 rather than having landed on the tarmac on his head, as alleged in the statement of the driver.
36. 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.”
37. In the present case there was credible evidence by PW 2 that pointed to the driver of the vehicle, the 2 nd respondent as the one who caused the accident by driving in the lane of the motorcycle that the deceased was riding thereby causing the collision that caused the death of the deceased. In the circumstances, I find the 2 nd respondent was wholly to blame for the accident and 1 st respondent was vicariously liable for the same.
38. Consequently, I find that the appeal has merit and is hereby allowed on the issue of liability. The trial court’s finding that the appellants had not proved their case on a balance of probability is hereby set aside and substituted with a finding that the 2 nd respondent was wholly liable for the accident with the 1 st respondent being vicariously liable. Judgment be and is heraby entered for the appellants against the respondents jointly and severally in the sum of KShs 1,416,200/= together with interest at court rates and costs both in the lower court and this appeal.
39. Orders accordingly.
40. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 25 th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellants.
N/A for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
milimani HCCA No. e1346 of 202311/liability-RTA