(Being an Appeal from the decision of the Learned Principal Magistrate Hon. A. Nyoike (Ms.) delivered on 05.12.24 in Nairobi CMCC No. E10541 of 2021)
JUDGMENT
1. The Appellant filed Milimani CMCC No. E10541 of 2021 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA) which occurred on or about the 16 th day of August 2020.
2. The accident involved Motor Vehicle Registration Numbers KCF 851Q, KCB 293P and the Motorcycle Registration Number KMEY 083K, on which the Appellant was lawfully riding as a pillion passenger when the said Motor Vehicles lost control and collided with the Motorcycle, causing the Appellant to sustain serious injuries.
3. The Respondents denied negligence, attributed negligence to the Appellant, and sought to have the suit dismissed.
4. The Appellant’s evidence was that Motor Vehicles Registration Numbers KCF 851Q and KCB 293P were being driven at a very high speed when they lost control and collided with Motorcycle Registration Number KMEY 083K.
5. The Appellant testified as PW1 and stated that he suffered a compound fracture of the left tibia. The injury was corroborated by a medical report adduced by Dr. Wokabi, which confirmed the said injuries.
6. The trial court found the Appellant 50% liable in negligence and awarded general damages as follows: -
General damages for pain and suffering: Kshs. 700,000/=.
Special damages: Kshs. 28,860/=.
7. The Appellant has appealed to this court against the determination on liability on the following grounds: -
a) That the Learned Trial Magistrate erred in law and in fact by apportioning liability at 50:50.
b) That the Learned Trial Magistrate erred in law and in fact by finding a pillion passenger equally to blame for the accident together with the Respondents.
c) That the Learned Trial Magistrate erred in law and in fact in failing to consider the evidence produced by the Appellants as proof of payment.
8. The parties filed their respective written submissions as follows: -
9. The Appellant submitted that the appeal challenges the Judgment of Milimani CMCC No. E10541 of 2021 (delivered on 05/12/2024), where the court erroneously apportioned liability at 50:50 against the innocent pillion passenger.
10. The Appellant submitted that a pillion passenger cannot be held blameworthy for the occurrence of an accident.
11. The Appellant cited the principles from the case of Gaudencia Luyayi Tusu & Sharon Ochieng’ Wabushi Vs Nellius Waithera Wanjiru & Another (Nairobi HCCA No. E950 of 2024) , where the court explained that a pillion passenger cannot be held liable for an accident.
12. The Appellant further contended that the apportionment of liability in the ratio of 50:50 was only applicable to the Respondents inter se , but all of them remain wholly and legally liable in full in favor of the Appellant.
13. The Appellant maintained that comparative case law supports entering judgment in favor of the Appellant against the Respondents at 100% jointly and severally.
14. Consequently, the Appellant seeks that the judgment of the lower court on liability be set aside and judgment in favor of the Appellant against the Respondents at 100% jointly and severally be entered.
15. The Respondents submitted that the appeal lacks merit and should be dismissed with costs. They argued that the Trial Court’s determination was reasonable, within judicial discretion, and urged this Appellate Court not to disturb it.
ANALYSIS AND DETERMINATION.
The mandate of a first appellate court is well-settled under Kenyan jurisprudence. As the last court of facts, this court is under a strict legal duty to re-examine, re-evaluate, and analyze the entire evidence on record both oral and documentary and arrive at its own independent conclusions on both facts and law.
This principle was famously stated in the locus classicus case of Selle & Another Vs Associated Motor Boat Company Ltd & Others (1968) EA 123 , where the court held: -
"An appellate court is not bound by the findings of fact of the trial court, but 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."
Regarding the principles that guide an Appellate Court before interfering with the exercise of judicial discretion or findings of a Trial Court, the landmark case of Mbogo & Another Vs Shah (1968) EA 93 dictates that an Appellate Court will not disturb such findings unless it is demonstrated that the Trial Court misdirected itself on the law, misapprehended the evidence, took into account irrelevant considerations, omitted relevant matters, or if the decision is plainly erroneous.
While both parties actively appeared and argued their respective cases before the Lower Court, it is important to clarify from the outset that the instant appeal challenges the Trial Court's decision strictly on the question of liability.
The award on quantum remains uncontested. Consequently, the sole issue that this court ought to respond to and determine is whether a pillion passenger should be held liable in negligence at a ratio of 50:50.
It is the Lower Court’s uncontroverted finding that an accident did occur on the material date involving Motor Vehicles Registration Numbers KCF 851Q, KCB 293P, and Motorcycle Registration Number KMEY 083K. It is further established on the record that the Appellant was a pillion passenger on the said Motorcycle.
It is a fundamental principle of law that statements of defense are merely pleadings and do not constitute evidence. This position was brilliantly and definitively captured by the eminent Madan JA (as he then was) in the case of CMC Aviation Ltd Vs Kenya Airways Ltd (Cruisair Ltd) (No. 1) [1978] KLR 103 (1976-80 1 KLR 835) , where he authoritatively held:
"The pleadings contain the averments of the three parties concerned. Until they are proved, or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence... Averments are not made on oath. Averments depend upon evidence for proof of their contents."
In the instant case, the Appellant gave clear, sworn evidence that the respondents' motor vehicles lost control and collided with the motorcycle on which he was riding as a pillion passenger.
While the respondents actively appeared and argued their case in the Lower Court, asserting contributory negligence and shifting blame within their pleadings, a distinction must be drawn between active legal arguments and the standard of legal proof required to shift blameworthiness onto an innocent passenger.
I am guided by the standard set in the case of CMC Aviation Ltd (Supra) and the corresponding precedent in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu (2012) eKLR . The mere assertion of contributory negligence within a written statement of defense or closing submissions does not transmute those claims into proved facts.
I note that the record fails to disclose any concrete proof demonstrating that the pillion passenger (the Appellant herein) actively interfered with the operation of the Motorcycle or contributed to the collision. The respondents' defensive allegations on this point remain entirely unproven.
Furthermore, under settled negligence principles, an innocent pillion passenger does not possess operational control over the mechanics, speed, or steering of a motorcycle or an oncoming motor vehicle. Unless it is proven that the passenger actively interfered with the safe operation of the vessel or voluntarily exposed themselves to an obvious risk, contributory negligence cannot legally or factually attach to them.
This position of law finds support in the decision in Simon Njoya Ngaruiya Vs Samuel Kimani Karanja (2024) KEHC 3064 (KLR) and Gaudencia Luyayi Tusu & Sharon Ochieng’ Wabushi Vs Nellius Waithera Wanjiru & Another (Nairobi HCCA No. E950 of 2024) , which affirm that a pillion passenger cannot be held blameworthy for an accident between colliding Motor Vehicles.
While a 50:50 split on liability may properly define the contribution inter se between concurrent tortfeasors, it cannot be applied to defeat or diminish the recovery in compensation by an innocent third party who is entitled to 100% judgment jointly and severally against them.
I am guided by the case of Khambi and Another Vs Mahithi & Another (1968) EA 70 , where it was held that an appellate court would not interfere with the apportionment of liability save where such apportionment was manifestly erroneous.
In the instant appeal, I find that the apportionment of liability at 50:50 was in error.
Consequently, the learned trial magistrate acted on completely wrong principles by relying on unproven averments to slice liability down the middle against an innocent passenger. The finding of 50% contributory negligence is wholly unsustainable.
This court therefore holds that the respondents are 100% jointly and severally liable for the accident which caused multiple injuries to the appellant.
In the upshot, the appeal on liability succeeds. The judgment of the Trial Court delivered on 5 th December 2024 is hereby varied as follows: -
a) The finding of 50% contributory negligence against the appellant is set aside.
b) Judgment is hereby entered in favor of the appellant against the respondents on liability at 100% jointly and severally.
c) The trial court's award on quantum is maintained at Kshs. 700,000/= for general damages and Kshs. 28,860/= for special damages, now payable at 100%.
d) The respondents shall bear the costs of this appeal as well as the costs of the lower court suit.
DATED, SIGNED AND DELIVERED at KAKAMEGA VIRTUALLY this 8 th DAY of July 2026.
D. O. ONYANGO
JUDGE.
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JUDGMENT
1. The Appellant filed Milimani CMCC No. E10541 of 2021 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA) which occurred on or about the 16 th day of August 2020.
2. The accident involved Motor Vehicle Registration Numbers KCF 851Q, KCB 293P and the Motorcycle Registration Number KMEY 083K, on which the Appellant was lawfully riding as a pillion passenger when the said Motor Vehicles lost control and collided with the Motorcycle, causing the Appellant to sustain serious injuries.
3. The Respondents denied negligence, attributed negligence to the Appellant, and sought to have the suit dismissed.
4. The Appellant’s evidence was that Motor Vehicles Registration Numbers KCF 851Q and KCB 293P were being driven at a very high speed when they lost control and collided with Motorcycle Registration Number KMEY 083K.
5. The Appellant testified as PW1 and stated that he suffered a compound fracture of the left tibia. The injury was corroborated by a medical report adduced by Dr. Wokabi, which confirmed the said injuries.
6. The trial court found the Appellant 50% liable in negligence and awarded general damages as follows: -
General damages for pain and suffering: Kshs. 700,000/=.
Special damages: Kshs. 28,860/=.
7. The Appellant has appealed to this court against the determination on liability on the following grounds: -
a) That the Learned Trial Magistrate erred in law and in fact by apportioning liability at 50:50.
b) That the Learned Trial Magistrate erred in law and in fact by finding a pillion passenger equally to blame for the accident together with the Respondents.
c) That the Learned Trial Magistrate erred in law and in fact in failing to consider the evidence produced by the Appellants as proof of payment.
8. The parties filed their respective written submissions as follows: -
9. The Appellant submitted that the appeal challenges the Judgment of Milimani CMCC No. E10541 of 2021 (delivered on 05/12/2024), where the court erroneously apportioned liability at 50:50 against the innocent pillion passenger.
10. The Appellant submitted that a pillion passenger cannot be held blameworthy for the occurrence of an accident.
11. The Appellant cited the principles from the case of Gaudencia Luyayi Tusu & Sharon Ochieng’ Wabushi Vs Nellius Waithera Wanjiru & Another (Nairobi HCCA No. E950 of 2024) , where the court explained that a pillion passenger cannot be held liable for an accident.
12. The Appellant further contended that the apportionment of liability in the ratio of 50:50 was only applicable to the Respondents inter se , but all of them remain wholly and legally liable in full in favor of the Appellant.
13. The Appellant maintained that comparative case law supports entering judgment in favor of the Appellant against the Respondents at 100% jointly and severally.
14. Consequently, the Appellant seeks that the judgment of the lower court on liability be set aside and judgment in favor of the Appellant against the Respondents at 100% jointly and severally be entered.
15. The Respondents submitted that the appeal lacks merit and should be dismissed with costs. They argued that the Trial Court’s determination was reasonable, within judicial discretion, and urged this Appellate Court not to disturb it.
ANALYSIS AND DETERMINATION.
The mandate of a first appellate court is well-settled under Kenyan jurisprudence. As the last court of facts, this court is under a strict legal duty to re-examine, re-evaluate, and analyze the entire evidence on record both oral and documentary and arrive at its own independent conclusions on both facts and law.
This principle was famously stated in the locus classicus case of Selle & Another Vs Associated Motor Boat Company Ltd & Others (1968) EA 123 , where the court held: -
"An appellate court is not bound by the findings of fact of the trial court, but 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."
Regarding the principles that guide an Appellate Court before interfering with the exercise of judicial discretion or findings of a Trial Court, the landmark case of Mbogo & Another Vs Shah (1968) EA 93 dictates that an Appellate Court will not disturb such findings unless it is demonstrated that the Trial Court misdirected itself on the law, misapprehended the evidence, took into account irrelevant considerations, omitted relevant matters, or if the decision is plainly erroneous.
While both parties actively appeared and argued their respective cases before the Lower Court, it is important to clarify from the outset that the instant appeal challenges the Trial Court's decision strictly on the question of liability.
The award on quantum remains uncontested. Consequently, the sole issue that this court ought to respond to and determine is whether a pillion passenger should be held liable in negligence at a ratio of 50:50.
It is the Lower Court’s uncontroverted finding that an accident did occur on the material date involving Motor Vehicles Registration Numbers KCF 851Q, KCB 293P, and Motorcycle Registration Number KMEY 083K. It is further established on the record that the Appellant was a pillion passenger on the said Motorcycle.
It is a fundamental principle of law that statements of defense are merely pleadings and do not constitute evidence. This position was brilliantly and definitively captured by the eminent Madan JA (as he then was) in the case of CMC Aviation Ltd Vs Kenya Airways Ltd (Cruisair Ltd) (No. 1) [1978] KLR 103 (1976-80 1 KLR 835) , where he authoritatively held:
"The pleadings contain the averments of the three parties concerned. Until they are proved, or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence... Averments are not made on oath. Averments depend upon evidence for proof of their contents."
In the instant case, the Appellant gave clear, sworn evidence that the respondents' motor vehicles lost control and collided with the motorcycle on which he was riding as a pillion passenger.
While the respondents actively appeared and argued their case in the Lower Court, asserting contributory negligence and shifting blame within their pleadings, a distinction must be drawn between active legal arguments and the standard of legal proof required to shift blameworthiness onto an innocent passenger.
I am guided by the standard set in the case of CMC Aviation Ltd (Supra) and the corresponding precedent in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu (2012) eKLR . The mere assertion of contributory negligence within a written statement of defense or closing submissions does not transmute those claims into proved facts.
I note that the record fails to disclose any concrete proof demonstrating that the pillion passenger (the Appellant herein) actively interfered with the operation of the Motorcycle or contributed to the collision. The respondents' defensive allegations on this point remain entirely unproven.
Furthermore, under settled negligence principles, an innocent pillion passenger does not possess operational control over the mechanics, speed, or steering of a motorcycle or an oncoming motor vehicle. Unless it is proven that the passenger actively interfered with the safe operation of the vessel or voluntarily exposed themselves to an obvious risk, contributory negligence cannot legally or factually attach to them.
This position of law finds support in the decision in Simon Njoya Ngaruiya Vs Samuel Kimani Karanja (2024) KEHC 3064 (KLR) and Gaudencia Luyayi Tusu & Sharon Ochieng’ Wabushi Vs Nellius Waithera Wanjiru & Another (Nairobi HCCA No. E950 of 2024) , which affirm that a pillion passenger cannot be held blameworthy for an accident between colliding Motor Vehicles.
While a 50:50 split on liability may properly define the contribution inter se between concurrent tortfeasors, it cannot be applied to defeat or diminish the recovery in compensation by an innocent third party who is entitled to 100% judgment jointly and severally against them.
I am guided by the case of Khambi and Another Vs Mahithi & Another (1968) EA 70 , where it was held that an appellate court would not interfere with the apportionment of liability save where such apportionment was manifestly erroneous.
In the instant appeal, I find that the apportionment of liability at 50:50 was in error.
Consequently, the learned trial magistrate acted on completely wrong principles by relying on unproven averments to slice liability down the middle against an innocent passenger. The finding of 50% contributory negligence is wholly unsustainable.
This court therefore holds that the respondents are 100% jointly and severally liable for the accident which caused multiple injuries to the appellant.
In the upshot, the appeal on liability succeeds. The judgment of the Trial Court delivered on 5 th December 2024 is hereby varied as follows: -
a) The finding of 50% contributory negligence against the appellant is set aside.
b) Judgment is hereby entered in favor of the appellant against the respondents on liability at 100% jointly and severally.
c) The trial court's award on quantum is maintained at Kshs. 700,000/= for general damages and Kshs. 28,860/= for special damages, now payable at 100%.
d) The respondents shall bear the costs of this appeal as well as the costs of the lower court suit.
DATED, SIGNED AND DELIVERED at KAKAMEGA VIRTUALLY this 8 th DAY of July 2026.
D. O. ONYANGO
JUDGE.
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