INTRODUCTION
1. In its decision of 11th December 2023, the Trial Court dismissed the Appellant’s suit on account that he failed to prove his case against the Respondent.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated and filed on 15th January 2024. He relied on eight (8) grounds of appeal.
3. His written submissions were dated 16th February 2026 while those of the Respondent were dated and filed on 21st April 2026. The Judgment herein is based on the said written submissions which the parties relied upon in their entirety.
ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having looked at the Grounds of Appeal and parties’ written submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were:-
a. Whether or not the Learned Magistrate erred dismissing the Appellant’s claim; and
b. Whether or not the Learned Magistrate erred for not addressing the issue of quantum.
7. The court deemed it prudent to address the issues under the following distinct heads.
a. Whether the Learned Magistrate erred dismissing Appellant’s claim
8. The Appellant submitted that the Respondent was in control of a lethal machine and ought to have exercised caution and she was expected to drive prudently and be vigilant. He placed reliance on the case of Masembe vs Sugar Corporation & another (2002) 2EA 434 cited in the case of Musendu Kasoo Muindu vs Charles Mbuthi Kinyanjui & another (2020) eKLR, in which the court emphasised that a driver driving with due care and attention does not hit every stationary object on his way and was bound to anticipate any act which was reasonably foreseeable.
9. He argued that the Respondent failed to exercise reasonable care and apply the requisite skills in preventing the occurrence of the accident and that she was not careful and he urged this court to find so. He claimed that the Respondent was wholly to blame for the said accident and he urged this court to hold her 100% responsible.
10. On her part, the Respondent submitted that the Appellant failed to keep proper distance and was therefore liable for the accident since it was clear that the Appellant rammed on her car from the rear side and there were rubble strips that required road users to slow down. She was emphatic that the Trial Court did not err finding that she bore no liability and she cited Githinji vs Ngugi & 2 others [2025] KEHC 14600 (KLR) among other cases to emphasis on burden of proof in civil cases. She pointed out that she adduced sufficient evidence in support of her case including photographs which showed the point of impact.
11. On the Appellant’s ground that the Trial Court ought to have considered the police abstract that was produced, she cited Peter Kanithi Kimunyu vs Aden Guyo Haro (2014) eKLR among other cases where courts emphasised that a police abstract was not proof of the occurrence of the accident but of the fact that the occurrence was reported. She pointed out that the police abstract produced did not blame either party for the occurrence of the accident and that the burden was on the Appellant to prove that the Respondent was liable. She further asserted that the Appellant’s evidence corroborated her evidence.
12. As to whether the court erred for failing to appreciate that the doctrine of res ipsa loquitor was applicable, she argued that the doctrine was not applicable in the instant case as she demonstrated that there was no negligence on her part and she placed reliance on the case of Mohamed vs Remji [2024] KECA 1311 (KLR) where the court gave an explanation as to what the doctrine meant.
13. On whether the Trial Court considered the Appellant’s submissions, she was emphatic that the same was considered.
14. Notably, the Appellant filed an amended statement of claim dated 25th October 2023. He claimed that on 12th August 2023, he was riding his motor cycle registration no. KMGJ 418D (hereinafter referred to as the motor cycle) along Ngong road and keeping to the innermost lane when the driver of motor vehicle registration no. KCT 186J (hereinafter referred to as the motor vehicle) who was driving in the middle lane abruptly switched lanes to his lane without indication and knocked him down occasioning him severe injuries. He particularized the particulars of negligence on part of the Respondent, particulars of injuries and special damages. He prayed for general damages, special damages and cost of the suit.
15. The Respondent filed a response dated 31st October 2023 denying the particulars of loss and damages as was particularized in the Appellant’s amended statement of claim.
16. The matter proceeded for hearing and the Appellant adopted his written statement. On cross examination, he testified that the motor vehicle was hit on the boot and that there were rubble strips and that when he saw rubble strips, he was meant to slow down. He stated that he had slowed down and the motor vehicle changed lanes from the middle lane to right lane. He testified that he was able to see the vehicle as it was switching lanes.
17. On re-examination, he told the court that he did not see it switch lanes. It was sudden and that there were bumps a few meters ahead.
18. In rejoinder, the Respondent adopted her written statement and produced her documents as exhibits. She testified that there were rubbles and she slowed down and heard a huge bump(sic). She had been hit from behind and on alighting, she found the rider had fallen down together with his passenger. She stated that she did not switch lanes since there were rubbles and she blamed the Appellant.
19. On cross examination, she stated that she was on the inner most lane and she was driving at 20km/hour on approaching the rubbles. She stated that her vehicle was damaged on the rear boot and bumper and she denied swerving.
20. After considering the parties’ evidence and submissions, the Trial Court dismissed the Appellant’s claim.
21. This court has also considered the evidence before the trial court and submissions made by the parties in the instant appeal.
b. Whether or not the Learned Magistrate erred for not addressing the issue of quantum.
22. The Appellant’s contention under this head was that the Trial Court erred for not considering and awarding him damages for pain and suffering. He claimed that he suffered bodily injuries according to medical report by Dr. Cyprene Okere and he urged this court to award him Kshs 400,000/= guided by Poa Link Services Co. Ltd & another vs Sindani Boaz Bonzemo [2021] eKLR Civil Appeal 17 of 2019 where an award of Kshs 350,000/= was made and Joseph Kimani Gathaga & another vs Dickson Ndungu Njoroge [2019] eKLR where an award of Kshs 250,000/= was made. He claimed that the above authorities were relevant and comparable to the injuries he sustained.
23. He also submitted that special damages of Kshs 26,110/= was pleaded and proved by production of receipts.
24. On her part, the Respondent submitted that since the Appellant failed to prove his case, damages could not be assessed nor awarded and the Trial Court could not address the issue of quantum as it failed as well.
25. Now I must analyze the two accounts of the accident to enable me establish if the trial court erred or not. The Appellant on cross examination informed court that he was required to keep distance, he informed Court that the Respondent changed lanes from the middle to the right and that he was behind him. He informed court that he did not see the vehicle change lanes. The Respondent equally testified and gave her account of the accident. She informed court that she was in the innermost lane and was driving at slow speed. She said that her vehicle was damages at the rear boot and bumper. she produced photos of the scene to support the evidence of how the accident occurred.
26. From the totality of the case and evidence availed I find that the Trial Court’s finding were sound and anchored in Law.
27. I consequently dismiss the Appeal with costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 24th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Orina Learned Counsel for the Appellant.
Muthama Learned Counsel for the Respondents
Michael – Court Assistant.
1. In its decision of 11th December 2023, the Trial Court dismissed the Appellant’s suit on account that he failed to prove his case against the Respondent.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated and filed on 15th January 2024. He relied on eight (8) grounds of appeal.
3. His written submissions were dated 16th February 2026 while those of the Respondent were dated and filed on 21st April 2026. The Judgment herein is based on the said written submissions which the parties relied upon in their entirety.
ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having looked at the Grounds of Appeal and parties’ written submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were:-
a. Whether or not the Learned Magistrate erred dismissing the Appellant’s claim; and
b. Whether or not the Learned Magistrate erred for not addressing the issue of quantum.
7. The court deemed it prudent to address the issues under the following distinct heads.
a. Whether the Learned Magistrate erred dismissing Appellant’s claim
8. The Appellant submitted that the Respondent was in control of a lethal machine and ought to have exercised caution and she was expected to drive prudently and be vigilant. He placed reliance on the case of Masembe vs Sugar Corporation & another (2002) 2EA 434 cited in the case of Musendu Kasoo Muindu vs Charles Mbuthi Kinyanjui & another (2020) eKLR, in which the court emphasised that a driver driving with due care and attention does not hit every stationary object on his way and was bound to anticipate any act which was reasonably foreseeable.
9. He argued that the Respondent failed to exercise reasonable care and apply the requisite skills in preventing the occurrence of the accident and that she was not careful and he urged this court to find so. He claimed that the Respondent was wholly to blame for the said accident and he urged this court to hold her 100% responsible.
10. On her part, the Respondent submitted that the Appellant failed to keep proper distance and was therefore liable for the accident since it was clear that the Appellant rammed on her car from the rear side and there were rubble strips that required road users to slow down. She was emphatic that the Trial Court did not err finding that she bore no liability and she cited Githinji vs Ngugi & 2 others [2025] KEHC 14600 (KLR) among other cases to emphasis on burden of proof in civil cases. She pointed out that she adduced sufficient evidence in support of her case including photographs which showed the point of impact.
11. On the Appellant’s ground that the Trial Court ought to have considered the police abstract that was produced, she cited Peter Kanithi Kimunyu vs Aden Guyo Haro (2014) eKLR among other cases where courts emphasised that a police abstract was not proof of the occurrence of the accident but of the fact that the occurrence was reported. She pointed out that the police abstract produced did not blame either party for the occurrence of the accident and that the burden was on the Appellant to prove that the Respondent was liable. She further asserted that the Appellant’s evidence corroborated her evidence.
12. As to whether the court erred for failing to appreciate that the doctrine of res ipsa loquitor was applicable, she argued that the doctrine was not applicable in the instant case as she demonstrated that there was no negligence on her part and she placed reliance on the case of Mohamed vs Remji [2024] KECA 1311 (KLR) where the court gave an explanation as to what the doctrine meant.
13. On whether the Trial Court considered the Appellant’s submissions, she was emphatic that the same was considered.
14. Notably, the Appellant filed an amended statement of claim dated 25th October 2023. He claimed that on 12th August 2023, he was riding his motor cycle registration no. KMGJ 418D (hereinafter referred to as the motor cycle) along Ngong road and keeping to the innermost lane when the driver of motor vehicle registration no. KCT 186J (hereinafter referred to as the motor vehicle) who was driving in the middle lane abruptly switched lanes to his lane without indication and knocked him down occasioning him severe injuries. He particularized the particulars of negligence on part of the Respondent, particulars of injuries and special damages. He prayed for general damages, special damages and cost of the suit.
15. The Respondent filed a response dated 31st October 2023 denying the particulars of loss and damages as was particularized in the Appellant’s amended statement of claim.
16. The matter proceeded for hearing and the Appellant adopted his written statement. On cross examination, he testified that the motor vehicle was hit on the boot and that there were rubble strips and that when he saw rubble strips, he was meant to slow down. He stated that he had slowed down and the motor vehicle changed lanes from the middle lane to right lane. He testified that he was able to see the vehicle as it was switching lanes.
17. On re-examination, he told the court that he did not see it switch lanes. It was sudden and that there were bumps a few meters ahead.
18. In rejoinder, the Respondent adopted her written statement and produced her documents as exhibits. She testified that there were rubbles and she slowed down and heard a huge bump(sic). She had been hit from behind and on alighting, she found the rider had fallen down together with his passenger. She stated that she did not switch lanes since there were rubbles and she blamed the Appellant.
19. On cross examination, she stated that she was on the inner most lane and she was driving at 20km/hour on approaching the rubbles. She stated that her vehicle was damaged on the rear boot and bumper and she denied swerving.
20. After considering the parties’ evidence and submissions, the Trial Court dismissed the Appellant’s claim.
21. This court has also considered the evidence before the trial court and submissions made by the parties in the instant appeal.
b. Whether or not the Learned Magistrate erred for not addressing the issue of quantum.
22. The Appellant’s contention under this head was that the Trial Court erred for not considering and awarding him damages for pain and suffering. He claimed that he suffered bodily injuries according to medical report by Dr. Cyprene Okere and he urged this court to award him Kshs 400,000/= guided by Poa Link Services Co. Ltd & another vs Sindani Boaz Bonzemo [2021] eKLR Civil Appeal 17 of 2019 where an award of Kshs 350,000/= was made and Joseph Kimani Gathaga & another vs Dickson Ndungu Njoroge [2019] eKLR where an award of Kshs 250,000/= was made. He claimed that the above authorities were relevant and comparable to the injuries he sustained.
23. He also submitted that special damages of Kshs 26,110/= was pleaded and proved by production of receipts.
24. On her part, the Respondent submitted that since the Appellant failed to prove his case, damages could not be assessed nor awarded and the Trial Court could not address the issue of quantum as it failed as well.
25. Now I must analyze the two accounts of the accident to enable me establish if the trial court erred or not. The Appellant on cross examination informed court that he was required to keep distance, he informed Court that the Respondent changed lanes from the middle to the right and that he was behind him. He informed court that he did not see the vehicle change lanes. The Respondent equally testified and gave her account of the accident. She informed court that she was in the innermost lane and was driving at slow speed. She said that her vehicle was damages at the rear boot and bumper. she produced photos of the scene to support the evidence of how the accident occurred.
26. From the totality of the case and evidence availed I find that the Trial Court’s finding were sound and anchored in Law.
27. I consequently dismiss the Appeal with costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 24th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Orina Learned Counsel for the Appellant.
Muthama Learned Counsel for the Respondents
Michael – Court Assistant.