1. This is an Appeal arising out of Judgment in a running down claim. It is against the Judgment and Decree of Honourable S.D Sitati (SRM) delivered on the 22nd day of July, 2024. This is in respect of the suit filed before the Principal Magistrate’s Court in Kilifi in CMCC No. E240 of 2023.
2. This Appeal is in a series and is related to E089 of 2024 and E090 of 2024.
Background Facts
3. The Appellant was the unsuccessful Plaintiff before the lower Court, while the Respondent was the Defendant. By a Plaint dated 25/4/2023, the Appellant sued the Defendant for personal injuries arising out of a traffic accident. The accident is said to have occurred on 19/3/2023 and the Appellant was travelling as a fare paying passenger.
4. The Respondent’s lawful driver/agent is said to have driven the Respondent’s motor vehicle recklessly and or carelessly. He lost control, veering of the road and falling down (sic) as a consequence of which the Appellant sustained injuries.
5. The Appellant pleaded the following particulars of negligence on the part of the Defendant’s agent/driver;
(i) Driving the motor vehicle registration number KDE 820B Nissan Matatu while over speeding along a busy road.
(ii) Driving the motor vehicle registration number KDE 820B Nissan Matatu without due care and attention for the plaintiff being a fare paying passenger.
(iii) Failing to manage and or control the motor vehicle registration number KDE 820B Nissan Matatu thereby veering off the road and falling down.
(iv) Failing to apply brakes in sufficient time to avoid causing the accident.
(v) Failing to steer the motor vehicle registration number KDE 820B Nissan Matatu in a clear and proper course.
(vi) Failing to observe the road signs.
(vii) Failing to service the safety belts of motor vehicle registration number KDE 820B Nissan Matatu.
(viii) Driving a defective motor vehicle registration number KDE Nissan Matatu.
6. The Respondent pleaded that she sustained the following injuries;
Blunt trauma to the right shoulder and upper limbs.
7. The Appellant claimed special damages as follows;
(i) P3 Form Kshs 2,000
(ii) Medical Treatment Kshs 3,000
(iii) Medical Report Kshs 2,000
Total Kshs 7,000
8. The Appellant thus sought the following reliefs against the Defendant;
a) General Damages for pain and suffering;
b) Special Damages
c) Costs and interests.
9. The Respondent duly entered an appearance and filed a Statement of Defence. He denied the accident and the injuries stated. He attributed the accident if any to negligence on the part of the Appellant and sought contribution from her as follows
Particulars of Negligence and Contribution of the Plaintiff
(i) Failing to take any or any adequate precautions for safety.
(ii) Failing to heed the instructions on safety precautions like wearing a seatbelt when travelling.
(iii) Voluntarily assuming risk of an accident occurring while aboard the said Motor Vehicle.
(iv) Failing to raise alarm, when the said Motor Vehicle was being driven negligently and alighting because of the same.
(v) Volent non fit injuria.
10. Thereafter, the suit proceeded for hearing whereby the Appellant testified and called a witness.
11. The Trial Court was not persuaded that the Appellant had proved her case. It proceeded to dismiss the suit with costs. This is what has triggered this Appeal.
Issues for Determination
12. The Court has taken note of the Record of Appeal, the Memorandum of Appeal hereof and the submissions filed by the parties’ Advocates. The Court frames two (2) issues for determination as follows;
a) Whether the Trial Court erred in finding that liability was not proved against the Respondent.
b) Whether the Appellant is entitled to the reliefs sought in the Appeal.
Analysis
13. The Appellant seeks the following reliefs in the Appeal;
(i) Allow the Appeal and set aside the Judgment and subsequent decree issued on 22nd July, 2024.
(ii) The Appellant be awarded the costs of this Appeal.
14. This is a first Appeal. This Court is under a duty to re-evaluate and re-analyze afresh the evidence adduced before the Trial Court and draw its own independent conclusions. In doing so, the Court must bear in mind that the Trial Court had the advantage of seeing and hearing the witnesses firsthand — see Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123.
(a) Whether the Trial Court erred in finding that liability was not proved against the Respondent.
15. The Court has duty to review the evidence and arrive at the same or different decision. The decision herein is this Court’s own conclusion, after a review of the evidence. The Court warns itself that it neither heard nor saw the witnesses.
16. The Trial Court reviewed the evidence of the eye witness PW3. She was in the subject motor vehicle. She led no evidence to establish negligence on the part of the Defendant or his driver. Her evidence was restricted to who was in the vehicle with her.
17. PWI. PC David Wafula Awuori gave evidence on the basis of the police report. That one Cosmas Amani Wanje was driving the Motor Vehicle from Kilifi to Mombasa. That he swerved right to avoid an unknown motor cycle from a feeder road and lost control. He rolled to the right side of the road. In re-examination he stated that the matatu driver could control the matatu had he been driving at moderate and reasonable speed.
18. The Court notes that the duty to prove the case and especially the issue of negligence and hence liability always lay at the door step of the Appellant. There was no evidence or eye witness testimony as to which speed the Matatu was being driven. Even PW3 who was an eye witness and a passenger did not lead any evidence as to the speed of the matatu at the time of the accident.
19. The evidence led was so thin as to hold the Defendant liable in negligence, on a balance of probabilities. No report on investigations carried out by the Police was produced. There is no sketch plan. It matters not that the Respondent called no evidence.
20. It is not enough to testify that the Matatu rolled. The Appellant had a duty to prove that the rolling was occasioned by the negligent driving of the matatu driver.
21. In this particular case, the evidence led by the Appellant was that the driver of the matatu was evading an accident. That a motor cycle had suddenly joined the road, from a feeder. He is said to have swerved to the right. That would be a natural reaction to avoid or avert an accident. That cannot be said to be a negligent act on the driver’s part in absence of further facts. The sudden emergence theory would still be a good defence in a Court of law. The negligent act would be to drive at high or reckless speeds or failing to keep distance or keep a look out. No evidence was led to that effect. The Police Officer was not an eye witness and he led no evidence of such high speed e.g. presence of skid marks on the road etc.
22. The Court refers to Peters –Vs- Sunday Post [1958] EA 424 pg 429 the Court stated: -
“It is a strong thing for an Appellate court to differ from the finding, on a question of fact, of a Judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence……to determine whether the conclusion originally reached upon it should stand. But this is a jurisdiction which should be exercised with caution: It is not enough that the appellate court might itself have come to a different conclusion.”
23. There can be no liability without a fault. The duty to prove liability at the initial stage lay with the Appellant. The Respondent could only seek to shift this burden of proof once it had been placed upon him. The Court follows the decision of E. Muriithi J in Kendi & another (suing as the legal representatives of the estate of Duncan Mwenda (deceased) v Japheth Iringo [2022] KEHC 12793 (KLR). The Court stated as follows;
“24. In the instant case there was no eye witness to shed light on how the accident occurred. The police abstract on record showed that the accident was under investigation. The accident involved a motor cycle and a motor vehicle and from the evidence nothing attributes liability to the respondent. There cannot be an assumption of liability as the plaintiff failed to prove facts which give rise to what may be called res ipsa loquitor situation. This court agrees with the trial court that the evidence adduced by the plaintiff was scanty and no explanation were made as to why the motor cycle rider was not called to shed light on what had transpired on the night the accident took place.
25.As can be deduced from all the cited authorities the key issue is for the plaintiff to prove his case. It is not enough to allege as done by the appellant herein and expect the court to agree with you. As expected under section 107 and 108 of the Evidence Act, the burden squarely is upon the appellant. The traffic police officer PW1 ought to have clarified how the accident may have happened by producing the sketch maps of the scene and any other relevant evidence.
26.It is very unfortunate that this case must fail, and the appellant has this court’s sympathy. However, the trial court acted judiciously and this court does not find any reason to fault the trial court findings on this question of negligence.”
(b) Whether the Appellant is entitled to the reliefs sought in the Appeal.
24. In absence of proof of liability, the Trial Court was correct in declining to award damages.
25. On costs, the same ordinarily follow the event. They are awarded at discretion. There exist no good reasons to deny the Respondent the costs of this Appeal.
26. The Court sympathises with the Appellant but reaches the same conclusion as the Trial Court.
Determination
27. The Appeal herein is HEREBY dismissed in its entirety for lack of merits.
28. The costs of the Appeal are awarded to the Respondent.
29. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Nanjali for the Appellant.
N/A for KRK for the Respondent
Mr. John Paul - Court Assistant
2. This Appeal is in a series and is related to E089 of 2024 and E090 of 2024.
Background Facts
3. The Appellant was the unsuccessful Plaintiff before the lower Court, while the Respondent was the Defendant. By a Plaint dated 25/4/2023, the Appellant sued the Defendant for personal injuries arising out of a traffic accident. The accident is said to have occurred on 19/3/2023 and the Appellant was travelling as a fare paying passenger.
4. The Respondent’s lawful driver/agent is said to have driven the Respondent’s motor vehicle recklessly and or carelessly. He lost control, veering of the road and falling down (sic) as a consequence of which the Appellant sustained injuries.
5. The Appellant pleaded the following particulars of negligence on the part of the Defendant’s agent/driver;
(i) Driving the motor vehicle registration number KDE 820B Nissan Matatu while over speeding along a busy road.
(ii) Driving the motor vehicle registration number KDE 820B Nissan Matatu without due care and attention for the plaintiff being a fare paying passenger.
(iii) Failing to manage and or control the motor vehicle registration number KDE 820B Nissan Matatu thereby veering off the road and falling down.
(iv) Failing to apply brakes in sufficient time to avoid causing the accident.
(v) Failing to steer the motor vehicle registration number KDE 820B Nissan Matatu in a clear and proper course.
(vi) Failing to observe the road signs.
(vii) Failing to service the safety belts of motor vehicle registration number KDE 820B Nissan Matatu.
(viii) Driving a defective motor vehicle registration number KDE Nissan Matatu.
6. The Respondent pleaded that she sustained the following injuries;
Blunt trauma to the right shoulder and upper limbs.
7. The Appellant claimed special damages as follows;
(i) P3 Form Kshs 2,000
(ii) Medical Treatment Kshs 3,000
(iii) Medical Report Kshs 2,000
Total Kshs 7,000
8. The Appellant thus sought the following reliefs against the Defendant;
a) General Damages for pain and suffering;
b) Special Damages
c) Costs and interests.
9. The Respondent duly entered an appearance and filed a Statement of Defence. He denied the accident and the injuries stated. He attributed the accident if any to negligence on the part of the Appellant and sought contribution from her as follows
Particulars of Negligence and Contribution of the Plaintiff
(i) Failing to take any or any adequate precautions for safety.
(ii) Failing to heed the instructions on safety precautions like wearing a seatbelt when travelling.
(iii) Voluntarily assuming risk of an accident occurring while aboard the said Motor Vehicle.
(iv) Failing to raise alarm, when the said Motor Vehicle was being driven negligently and alighting because of the same.
(v) Volent non fit injuria.
10. Thereafter, the suit proceeded for hearing whereby the Appellant testified and called a witness.
11. The Trial Court was not persuaded that the Appellant had proved her case. It proceeded to dismiss the suit with costs. This is what has triggered this Appeal.
Issues for Determination
12. The Court has taken note of the Record of Appeal, the Memorandum of Appeal hereof and the submissions filed by the parties’ Advocates. The Court frames two (2) issues for determination as follows;
a) Whether the Trial Court erred in finding that liability was not proved against the Respondent.
b) Whether the Appellant is entitled to the reliefs sought in the Appeal.
Analysis
13. The Appellant seeks the following reliefs in the Appeal;
(i) Allow the Appeal and set aside the Judgment and subsequent decree issued on 22nd July, 2024.
(ii) The Appellant be awarded the costs of this Appeal.
14. This is a first Appeal. This Court is under a duty to re-evaluate and re-analyze afresh the evidence adduced before the Trial Court and draw its own independent conclusions. In doing so, the Court must bear in mind that the Trial Court had the advantage of seeing and hearing the witnesses firsthand — see Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123.
(a) Whether the Trial Court erred in finding that liability was not proved against the Respondent.
15. The Court has duty to review the evidence and arrive at the same or different decision. The decision herein is this Court’s own conclusion, after a review of the evidence. The Court warns itself that it neither heard nor saw the witnesses.
16. The Trial Court reviewed the evidence of the eye witness PW3. She was in the subject motor vehicle. She led no evidence to establish negligence on the part of the Defendant or his driver. Her evidence was restricted to who was in the vehicle with her.
17. PWI. PC David Wafula Awuori gave evidence on the basis of the police report. That one Cosmas Amani Wanje was driving the Motor Vehicle from Kilifi to Mombasa. That he swerved right to avoid an unknown motor cycle from a feeder road and lost control. He rolled to the right side of the road. In re-examination he stated that the matatu driver could control the matatu had he been driving at moderate and reasonable speed.
18. The Court notes that the duty to prove the case and especially the issue of negligence and hence liability always lay at the door step of the Appellant. There was no evidence or eye witness testimony as to which speed the Matatu was being driven. Even PW3 who was an eye witness and a passenger did not lead any evidence as to the speed of the matatu at the time of the accident.
19. The evidence led was so thin as to hold the Defendant liable in negligence, on a balance of probabilities. No report on investigations carried out by the Police was produced. There is no sketch plan. It matters not that the Respondent called no evidence.
20. It is not enough to testify that the Matatu rolled. The Appellant had a duty to prove that the rolling was occasioned by the negligent driving of the matatu driver.
21. In this particular case, the evidence led by the Appellant was that the driver of the matatu was evading an accident. That a motor cycle had suddenly joined the road, from a feeder. He is said to have swerved to the right. That would be a natural reaction to avoid or avert an accident. That cannot be said to be a negligent act on the driver’s part in absence of further facts. The sudden emergence theory would still be a good defence in a Court of law. The negligent act would be to drive at high or reckless speeds or failing to keep distance or keep a look out. No evidence was led to that effect. The Police Officer was not an eye witness and he led no evidence of such high speed e.g. presence of skid marks on the road etc.
22. The Court refers to Peters –Vs- Sunday Post [1958] EA 424 pg 429 the Court stated: -
“It is a strong thing for an Appellate court to differ from the finding, on a question of fact, of a Judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence……to determine whether the conclusion originally reached upon it should stand. But this is a jurisdiction which should be exercised with caution: It is not enough that the appellate court might itself have come to a different conclusion.”
23. There can be no liability without a fault. The duty to prove liability at the initial stage lay with the Appellant. The Respondent could only seek to shift this burden of proof once it had been placed upon him. The Court follows the decision of E. Muriithi J in Kendi & another (suing as the legal representatives of the estate of Duncan Mwenda (deceased) v Japheth Iringo [2022] KEHC 12793 (KLR). The Court stated as follows;
“24. In the instant case there was no eye witness to shed light on how the accident occurred. The police abstract on record showed that the accident was under investigation. The accident involved a motor cycle and a motor vehicle and from the evidence nothing attributes liability to the respondent. There cannot be an assumption of liability as the plaintiff failed to prove facts which give rise to what may be called res ipsa loquitor situation. This court agrees with the trial court that the evidence adduced by the plaintiff was scanty and no explanation were made as to why the motor cycle rider was not called to shed light on what had transpired on the night the accident took place.
25.As can be deduced from all the cited authorities the key issue is for the plaintiff to prove his case. It is not enough to allege as done by the appellant herein and expect the court to agree with you. As expected under section 107 and 108 of the Evidence Act, the burden squarely is upon the appellant. The traffic police officer PW1 ought to have clarified how the accident may have happened by producing the sketch maps of the scene and any other relevant evidence.
26.It is very unfortunate that this case must fail, and the appellant has this court’s sympathy. However, the trial court acted judiciously and this court does not find any reason to fault the trial court findings on this question of negligence.”
(b) Whether the Appellant is entitled to the reliefs sought in the Appeal.
24. In absence of proof of liability, the Trial Court was correct in declining to award damages.
25. On costs, the same ordinarily follow the event. They are awarded at discretion. There exist no good reasons to deny the Respondent the costs of this Appeal.
26. The Court sympathises with the Appellant but reaches the same conclusion as the Trial Court.
Determination
27. The Appeal herein is HEREBY dismissed in its entirety for lack of merits.
28. The costs of the Appeal are awarded to the Respondent.
29. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Nanjali for the Appellant.
N/A for KRK for the Respondent
Mr. John Paul - Court Assistant