In judgment Peter Kahinga Wanyanga Vs Wawereu Wairimu HCCA No. E226 of 2023
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO. E226 OF 2023
PETER KAHINGA WANYANGA ............................................ APPELLANT
VERSUS
WAWERU WAIRIMU ........................................................... RESPONDENT
(Being an Appeal from the Judgment and Decree delivered on 24th July 2023 in Nakuru SCCC No. E184 of 2023 by Hon. Edward Oboge, RM)
JUDGMENT
A. BACKGROUND
1. This first civil appeal arises from the judgment and decree of the Small Claims Court at Nakuru (Hon. Edward Oboge, RM) delivered on 24 th July 2023 in Nakuru SCCC No. E184 of 2023 .
2. The underlying dispute involves a subrogation claim instituted by the Appellant’s insurer, M/s UAP Insurance Company Limited , in the name of the insured Appellant. The insurer sought to recover a sum of Kshs. 261,290 paid out to the Appellant to cover vehicle repair and related costs. This expenditure followed a road traffic accident that occurred on 25 th April 2020 along the busy Nakuru–Nairobi Highway.
3. The accident took place near the Safaricom Flyover zebra crossing, adjacent to Nakuru State House. The Appellant asserted that his vehicle, registration number KBU 912V , was struck from the rear by a vehicle driven by the Respondent's authorized driver, registration number KBR 416Z . The collision caused extensive structural damage to the rear of the Appellant's vehicle.
4. At the trial, the Appellant called a police officer as CW1 and a legal officer from the insurance company as CW2. The Respondent relied entirely on the oral testimony of her driver, who testified as RW1. After hearing the evidence, the trial court dismissed the Appellant's statement of claim with costs on 24 th July 2023. Dissatisfied with this total dismissal, the Appellant filed this appeal via a Memorandum of Appeal.
B. THE APPELLANT'S CASE
5. The Appellant argues that the trial magistrate erred both in law and in fact by failing to properly evaluate the evidence, which led to an incorrect dismissal of the suit. The Appellant relies on several key pillars to demonstrate that the Respondent was completely to blame for the accident:
6. The Police Testimony and Official Investigations: The Appellant called PC David Gitahi (CW1) , a traffic officer from Nakuru Central Police Station. CW1 confirmed that the accident was officially reported and recorded under OB No. 22/28/04/2023 . He produced the official Police Abstract Report as an exhibit.
7. The Appellant stresses that CW1’s testimony remained unshaken under cross-examination. The officer stated that police investigations blamed the Respondent's driver for failing to keep a safe distance and ramming into the Appellant’s vehicle. The vehicle had slowed down at a zebra crossing to allow pedestrians to cross safely.
8. Outright Admittance of Liability by the Respondent: The Appellant asserts that the trial court ignored an open admission of liability by the Respondent’s driver ( RW1 ). In paragraphs 4, 5, and 6 of his own witness statement, RW1 admitted that he hit the center-rear of the Appellant's vehicle because the gap between the two cars was too narrow when emergency brakes were applied near the bump. The Appellant argues that hitting a vehicle directly from behind without swerving is clear proof that the Respondent was driving too fast and failed to maintain a safe distance.
9. Disregard of Expert Evidence: The Appellant argues that the trial court completely ignored an independent investigation report prepared by M/s Sunrays General Services Limited without giving any explanation. The expert report concluded that the Respondent's driver was entirely to blame. The valuer/investigator had interviewed the driver, the police, and the Respondent to build a fair summary of the accident.
10. The Right to Prosecute via Competent Witnesses: Responding to criticisms regarding his physical absence from the trial, the Appellant cites the Court of Appeal decision in Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd [1998] KECA 24 (KLR) . He argues that a plaintiff is not legally mandated to give personal oral evidence if they can successfully prove their claim using other competent witnesses, such as investigators and traffic officers.
C. THE RESPONDENT'S CASE
10. The Respondent asks this Court to reject the appeal and uphold the trial court's dismissal, raising both procedural objections and arguments on the merits of the case.
11. The Claim of a Defective and Incompetent Record: As a preliminary hurdle, the Respondent submits that the Record of Appeal filed on 19th June 2024 is legally defective. The Respondent points out that the Appellant failed to include vital trial documents, including the underlying insurance policy document, the physical police abstract, and the Occurrence Book (OB) excerpt. Citing the Supreme Court decision in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR , the Respondent argues that an incomplete record deprives the appellate court of jurisdiction and requires the suit to be struck out in limine (at the threshold).
12. The Hearsay Nature of the Appellant’s Witnesses: On the merits, the Respondent notes that neither of the Appellant's witnesses actually saw the accident happen. The UAP Insurance legal officer ( CW2 ) admitted she only received a report after the event. Similarly, the police officer ( CW1 ) admitted he was not the original investigating officer and had never visited the scene. Relying on Mulekye v Kovi [2022] KEHC 3291 (KLR) , the Respondent argues that a police officer cannot simply produce an abstract without explaining why the actual author of the document is unavailable. This makes their testimony inadmissible hearsay.
13. Uncontroverted Eye-Witness Testimony: The Respondent points out that her driver, RW1 , was the only actual eye-witness who gave oral testimony. RW1 testified that as they approached the Nakuru PGH junction, the Appellant's driver suddenly slammed on emergency brakes right in the middle of the road without any prior indication or warning lights before even reaching the bump. This created an immediate hazard and obstruction.
14. The Respondent argues that, because the Appellant failed to call his own driver to challenge this statement, RW1's account remains completely uncontroverted and binds the court.
D. Analysis and Determination
15. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand.
16. The jurisdiction for this court to review the evidence in the lower court should this be done but with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
17. The duty of this court in the appeal is thus to reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
A. Evaluation of the Procedural Competence of the Appeal
18. The Respondent has urged this Court to strike out the appeal because the record is missing the insurance policy document and primary police files.
19. This Court has reviewed the compiled record. While it is true that certain primary documents were omitted from the final bundle, the record contains the comprehensive typed proceedings, the lower court judgment, and the necessary certified decree.
20. Unlike cases where the omission of a mandatory decree deprives the court of its jurisdictional foundation (as in Chege v Suleiman ), the omissions here do not prevent a fair review. Under Article 159(2)(d) of the Constitution , justice must be administered without undue regard to procedural technicalities.
21. The documents present on the record are sufficient to allow this Court to determine the controversies surrounding liability. The request to strike out the appeal on technical grounds is therefore rejected.
B. The Legal Standard of Proof and Evidentiary Value of the Witnesses
22. In an action for negligence, the plaintiff bears the fundamental burden of proving on a balance of probabilities that the damage was caused by the negligence of the defendant. As stated in Nandwa v Kenya Kazi Ltd (1988) eKLR , this formal burden does not shift.
23. A critical look at the Appellant’s case reveals a fatal gap in evidence regarding the circumstances of the accident:
i. The Hearsay Trap: The Appellant’s insurance representative (CW2) had no personal knowledge of the accident. Her testimony regarding the collision was pure hearsay.
ii. Deficient Police Evidence: The traffic officer (CW1) who produced the abstract was not the original investigator and never visited the scene. As emphasized in John Kiria & 6 Others v Charles Kaunda Musyoka [2010] eKLR , a police abstract produced by a non-investigating officer merely proves that an accident was reported; it holds no probative value in determining actual fault or civil liability. The Appellant failed to satisfy Section 33 of the Evidence Act by explaining why the actual investigating officer was not called to testify.
24. The Failure to Call the Driver: The claim was brought under the doctrine of subrogation. While Julianne Ulrike Stamm confirms that, a plaintiff insurer does not need to be physically present if other evidence sufficed, it does not excuse the failure to call the actual operator of the vehicle. The person driving vehicle KBU 912V was the only individual who could challenge the Respondent’s version of events.
25. The Respondent's driver (RW1) gave clear, direct oral evidence. He testified that the Appellant's driver unexpectedly slammed on emergency brakes right in the middle of a high-speed highway without signaling. Because the Appellant failed to call his driver or provide any eye-witness testimony to counter this claim, RW1's statement remains completely unchallenged. This Court cannot rely on an external surveyor's report to push aside the only direct, live eye-witness testimony available.
26. On expert evidence, as stated in Shah v Shah [2003] 1 EA 290 , an expert's opinion is never automatically binding on a court. It must be weighed alongside all other facts. Rushing to find a party 100% liable based on a third-party investigation report while ignoring the uncontroverted oral testimony of the only eye-witness would be a serious error in judgment.
27. The trial magistrate was entirely correct to find that the Appellant failed to prove his case to the required legal standard.
28. To quote Magare J holding where he confronted a similar scenario in Dete v Mirieri (Civil Appeal E079 of 2023) [2025] KEHC 3337 (KLR) (6 March 2025) (Judgment) .
“It must be understood that not all accidents are caused by all the parties. Each case must turn on its peculiar facts. Drivers cannot be presumed to be all mad and, ipso facto, cause of accidents. A court must never proceed as someone has picked up a tub. Sometimes, the court must let chips fall where they may or better still, must. In Gideon Ndungu Nguribu & another v Michael Njagi Karimi [2017] eKLR , the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it ….
The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
E. CONCLUSION & FINAL ORDERS
29. The upshot of the above evaluation is that the trial court applied the correct principles of law and carefully evaluated the evidence. The Appellant failed to provide any direct eye-witness evidence or call his driver to challenge the Respondent's case. The suit was properly dismissed.
30. Accordingly, it is hereby ordered as follows:
i. The Appeal is dismissed in its entirety for lack of merit.
ii. The Judgment and Decree of the Small Claims Court delivered on 24 th July 2023 in Nakuru SCCC No. E184 of 2023 is hereby upheld .
iii. The Appellant shall pay the full costs of this appeal to the Respondent.
Order accordingly.
DATED and DELIVERED at NAKURU
On this 3 rd day of October 2025
___________________
S. MOHOCHI
JUDGE
2
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO. E226 OF 2023
PETER KAHINGA WANYANGA ............................................ APPELLANT
VERSUS
WAWERU WAIRIMU ........................................................... RESPONDENT
(Being an Appeal from the Judgment and Decree delivered on 24th July 2023 in Nakuru SCCC No. E184 of 2023 by Hon. Edward Oboge, RM)
JUDGMENT
A. BACKGROUND
1. This first civil appeal arises from the judgment and decree of the Small Claims Court at Nakuru (Hon. Edward Oboge, RM) delivered on 24 th July 2023 in Nakuru SCCC No. E184 of 2023 .
2. The underlying dispute involves a subrogation claim instituted by the Appellant’s insurer, M/s UAP Insurance Company Limited , in the name of the insured Appellant. The insurer sought to recover a sum of Kshs. 261,290 paid out to the Appellant to cover vehicle repair and related costs. This expenditure followed a road traffic accident that occurred on 25 th April 2020 along the busy Nakuru–Nairobi Highway.
3. The accident took place near the Safaricom Flyover zebra crossing, adjacent to Nakuru State House. The Appellant asserted that his vehicle, registration number KBU 912V , was struck from the rear by a vehicle driven by the Respondent's authorized driver, registration number KBR 416Z . The collision caused extensive structural damage to the rear of the Appellant's vehicle.
4. At the trial, the Appellant called a police officer as CW1 and a legal officer from the insurance company as CW2. The Respondent relied entirely on the oral testimony of her driver, who testified as RW1. After hearing the evidence, the trial court dismissed the Appellant's statement of claim with costs on 24 th July 2023. Dissatisfied with this total dismissal, the Appellant filed this appeal via a Memorandum of Appeal.
B. THE APPELLANT'S CASE
5. The Appellant argues that the trial magistrate erred both in law and in fact by failing to properly evaluate the evidence, which led to an incorrect dismissal of the suit. The Appellant relies on several key pillars to demonstrate that the Respondent was completely to blame for the accident:
6. The Police Testimony and Official Investigations: The Appellant called PC David Gitahi (CW1) , a traffic officer from Nakuru Central Police Station. CW1 confirmed that the accident was officially reported and recorded under OB No. 22/28/04/2023 . He produced the official Police Abstract Report as an exhibit.
7. The Appellant stresses that CW1’s testimony remained unshaken under cross-examination. The officer stated that police investigations blamed the Respondent's driver for failing to keep a safe distance and ramming into the Appellant’s vehicle. The vehicle had slowed down at a zebra crossing to allow pedestrians to cross safely.
8. Outright Admittance of Liability by the Respondent: The Appellant asserts that the trial court ignored an open admission of liability by the Respondent’s driver ( RW1 ). In paragraphs 4, 5, and 6 of his own witness statement, RW1 admitted that he hit the center-rear of the Appellant's vehicle because the gap between the two cars was too narrow when emergency brakes were applied near the bump. The Appellant argues that hitting a vehicle directly from behind without swerving is clear proof that the Respondent was driving too fast and failed to maintain a safe distance.
9. Disregard of Expert Evidence: The Appellant argues that the trial court completely ignored an independent investigation report prepared by M/s Sunrays General Services Limited without giving any explanation. The expert report concluded that the Respondent's driver was entirely to blame. The valuer/investigator had interviewed the driver, the police, and the Respondent to build a fair summary of the accident.
10. The Right to Prosecute via Competent Witnesses: Responding to criticisms regarding his physical absence from the trial, the Appellant cites the Court of Appeal decision in Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd [1998] KECA 24 (KLR) . He argues that a plaintiff is not legally mandated to give personal oral evidence if they can successfully prove their claim using other competent witnesses, such as investigators and traffic officers.
C. THE RESPONDENT'S CASE
10. The Respondent asks this Court to reject the appeal and uphold the trial court's dismissal, raising both procedural objections and arguments on the merits of the case.
11. The Claim of a Defective and Incompetent Record: As a preliminary hurdle, the Respondent submits that the Record of Appeal filed on 19th June 2024 is legally defective. The Respondent points out that the Appellant failed to include vital trial documents, including the underlying insurance policy document, the physical police abstract, and the Occurrence Book (OB) excerpt. Citing the Supreme Court decision in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR , the Respondent argues that an incomplete record deprives the appellate court of jurisdiction and requires the suit to be struck out in limine (at the threshold).
12. The Hearsay Nature of the Appellant’s Witnesses: On the merits, the Respondent notes that neither of the Appellant's witnesses actually saw the accident happen. The UAP Insurance legal officer ( CW2 ) admitted she only received a report after the event. Similarly, the police officer ( CW1 ) admitted he was not the original investigating officer and had never visited the scene. Relying on Mulekye v Kovi [2022] KEHC 3291 (KLR) , the Respondent argues that a police officer cannot simply produce an abstract without explaining why the actual author of the document is unavailable. This makes their testimony inadmissible hearsay.
13. Uncontroverted Eye-Witness Testimony: The Respondent points out that her driver, RW1 , was the only actual eye-witness who gave oral testimony. RW1 testified that as they approached the Nakuru PGH junction, the Appellant's driver suddenly slammed on emergency brakes right in the middle of the road without any prior indication or warning lights before even reaching the bump. This created an immediate hazard and obstruction.
14. The Respondent argues that, because the Appellant failed to call his own driver to challenge this statement, RW1's account remains completely uncontroverted and binds the court.
D. Analysis and Determination
15. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand.
16. The jurisdiction for this court to review the evidence in the lower court should this be done but with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
17. The duty of this court in the appeal is thus to reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
A. Evaluation of the Procedural Competence of the Appeal
18. The Respondent has urged this Court to strike out the appeal because the record is missing the insurance policy document and primary police files.
19. This Court has reviewed the compiled record. While it is true that certain primary documents were omitted from the final bundle, the record contains the comprehensive typed proceedings, the lower court judgment, and the necessary certified decree.
20. Unlike cases where the omission of a mandatory decree deprives the court of its jurisdictional foundation (as in Chege v Suleiman ), the omissions here do not prevent a fair review. Under Article 159(2)(d) of the Constitution , justice must be administered without undue regard to procedural technicalities.
21. The documents present on the record are sufficient to allow this Court to determine the controversies surrounding liability. The request to strike out the appeal on technical grounds is therefore rejected.
B. The Legal Standard of Proof and Evidentiary Value of the Witnesses
22. In an action for negligence, the plaintiff bears the fundamental burden of proving on a balance of probabilities that the damage was caused by the negligence of the defendant. As stated in Nandwa v Kenya Kazi Ltd (1988) eKLR , this formal burden does not shift.
23. A critical look at the Appellant’s case reveals a fatal gap in evidence regarding the circumstances of the accident:
i. The Hearsay Trap: The Appellant’s insurance representative (CW2) had no personal knowledge of the accident. Her testimony regarding the collision was pure hearsay.
ii. Deficient Police Evidence: The traffic officer (CW1) who produced the abstract was not the original investigator and never visited the scene. As emphasized in John Kiria & 6 Others v Charles Kaunda Musyoka [2010] eKLR , a police abstract produced by a non-investigating officer merely proves that an accident was reported; it holds no probative value in determining actual fault or civil liability. The Appellant failed to satisfy Section 33 of the Evidence Act by explaining why the actual investigating officer was not called to testify.
24. The Failure to Call the Driver: The claim was brought under the doctrine of subrogation. While Julianne Ulrike Stamm confirms that, a plaintiff insurer does not need to be physically present if other evidence sufficed, it does not excuse the failure to call the actual operator of the vehicle. The person driving vehicle KBU 912V was the only individual who could challenge the Respondent’s version of events.
25. The Respondent's driver (RW1) gave clear, direct oral evidence. He testified that the Appellant's driver unexpectedly slammed on emergency brakes right in the middle of a high-speed highway without signaling. Because the Appellant failed to call his driver or provide any eye-witness testimony to counter this claim, RW1's statement remains completely unchallenged. This Court cannot rely on an external surveyor's report to push aside the only direct, live eye-witness testimony available.
26. On expert evidence, as stated in Shah v Shah [2003] 1 EA 290 , an expert's opinion is never automatically binding on a court. It must be weighed alongside all other facts. Rushing to find a party 100% liable based on a third-party investigation report while ignoring the uncontroverted oral testimony of the only eye-witness would be a serious error in judgment.
27. The trial magistrate was entirely correct to find that the Appellant failed to prove his case to the required legal standard.
28. To quote Magare J holding where he confronted a similar scenario in Dete v Mirieri (Civil Appeal E079 of 2023) [2025] KEHC 3337 (KLR) (6 March 2025) (Judgment) .
“It must be understood that not all accidents are caused by all the parties. Each case must turn on its peculiar facts. Drivers cannot be presumed to be all mad and, ipso facto, cause of accidents. A court must never proceed as someone has picked up a tub. Sometimes, the court must let chips fall where they may or better still, must. In Gideon Ndungu Nguribu & another v Michael Njagi Karimi [2017] eKLR , the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it ….
The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
E. CONCLUSION & FINAL ORDERS
29. The upshot of the above evaluation is that the trial court applied the correct principles of law and carefully evaluated the evidence. The Appellant failed to provide any direct eye-witness evidence or call his driver to challenge the Respondent's case. The suit was properly dismissed.
30. Accordingly, it is hereby ordered as follows:
i. The Appeal is dismissed in its entirety for lack of merit.
ii. The Judgment and Decree of the Small Claims Court delivered on 24 th July 2023 in Nakuru SCCC No. E184 of 2023 is hereby upheld .
iii. The Appellant shall pay the full costs of this appeal to the Respondent.
Order accordingly.
DATED and DELIVERED at NAKURU
On this 3 rd day of October 2025
___________________
S. MOHOCHI
JUDGE
2