A. INTRODUCTION
1. This is a first appeal from the judgment of the Chief Magistrate's Court at Bungoma (Hon. A.A. Odawo, PM) delivered on 13th March 2023 in CMCC No. E084 of 2021, in which the trial Court held that the Appellant had failed to prove his case on a balance of probabilities and dismissed his suit in its entirety with costs, while indicating, for completeness, the quantum it would have awarded had liability been established.
2. The Appellant, Samuel Sifuna Wanjala, was at the material time an 18-year-old student. It is common ground that on 14th September 2020, along the Bungoma–Malaba Road at Mayanja area, a collision occurred between motorcycle registration number KMER 916T "TV Star," on which the Appellant was travelling, and motor vehicle registration number KCU 967B, a Toyota Nissan van fitted out as a hearse. The 1st Respondent is the registered owner of the hearse, the 2nd Respondent (trading as Narok Sweet Home) is its beneficial/possessory owner, and the 3rd Respondent, Vincent Auta, was its driver at the material time.
B. THE PLEADINGS BEFORE THE TRIAL COURT
3. By a Plaint dated 7th April 2021, the Appellant pleaded that while he was riding the motorcycle along the stated road, the 3rd Respondent, driving the hearse with the authority of the 1st and 2nd Respondents, negligently, carelessly and recklessly caused the hearse to ram into the rear of his motorcycle without any warning or hooting, causing him serious injuries. He particularised the Respondents' negligence as including permitting a defective vehicle to be driven, driving at excessive speed, failure to observe traffic rules, driving while not properly trained, employing an unqualified driver, and failure to brake, swerve or otherwise avoid the accident, and pleaded reliance, so far as necessary, on the doctrine of res ipsa loquitor. He claimed special damages of Kshs. 21,970/-, general damages, future medical expenses, costs and interest.
4. The Respondents, by a joint statement of defence dated 2nd September 2021, denied the occurrence of the accident as pleaded and, in the alternative and without prejudice, averred that if any accident occurred it was wholly or substantially caused by the Appellant's own negligence in riding the motorcycle without a helmet, without a valid licence, in a zigzag manner, at excessive speed, while using a mobile phone, and while intoxicated, and in failing to have due regard to other road users, apply brakes or take evasive action.
C. THE EVIDENCE BEFORE THE TRIAL COURT
5. The Appellant's case comprised the evidence of four witnesses. PW1, Dr. Joseph Sokobe, produced a medical report dated 26th March 2021 (examination conducted some six months after the accident), recording that the Appellant had sustained a head injury with loss of consciousness, a fracture of the skull, and bruises on the scalp, treated conservatively with tetanus toxoid, analgesics, antibiotics and wound cleaning, with healed scars on the scalp and normal vital signs on examination; his opinion was that the Appellant "sustained both soft and bony tissue injuries from which he has recovered," with no permanent or temporary disability assessed.
6. PW2, Elias Adoka, a clinician at Bungoma County Referral Hospital, produced the discharge summary and P3 Form, and testified that the Appellant was admitted on 14th September 2020 and discharged on 17th September 2020, with multiple bruises to the head and swelling, a fracture, left elbow swelling, and that a CT scan revealed multiple linear fractures; the degree of injury was classified as grievous harm. Under cross-examination, PW2 conceded the discharging doctor was an intern acting on instructions, and that the discharge summary bore no hospital stamp, unlike the P3 Form.
7. PW3, the Appellant himself, testified that he was riding the motorcycle along the Bungoma–Malaba Road when he was hit from behind by the hearse, registration KCU 967B, without warning. Under cross-examination, he stated: "I had no insurance at the time of the RTA...... I didn't undertake any driving course. I have no driving licence. True, I shouldn't be riding a motorcycle." He also stated that the motorcycle belonged to a third party, one Oscar, and that he did not know which insurance company covered it.
8. PW4, PC Mwanamkasi Mohamed of the Bungoma Traffic Police, produced the Police Abstract and confirmed that the accident involved the two vehicles described, that the Appellant was the rider of the motorcycle, and that the registered owner and driver of the hearse were as pleaded. Under cross-examination, she conceded that she was not the investigating officer, had not visited the scene, did not have the police file, could not say whether the rider held a driving licence, and that the matter remained under investigation with nobody charged.
9. The Respondents called no witness. By consent of Counsel, a second medical report dated 25th May 2022, prepared by Dr. Walter Adero, was admitted as Defence Exhibit 1. That report is internally inconsistent with the rest of the record in two material respects: it records the Appellant's age as 36 years, against 18 years consistently recorded elsewhere, and describes him as "a pedestrian on the highway when he got knocked by an unknown vehicle from behind" rather than the rider of a named motorcycle struck by an identified vehicle. Neither party addressed this discrepancy at trial or on appeal. On the substance of the injury, however, Dr. Adero's opinion was consistent with Dr. Sokobe's: a moderate head injury with soft-tissue injuries to the scalp and extremities, near-full recovery, occasional mild headaches relieved by rest or analgesia, resumption of normal activity without restriction, and no permanent or temporary disability. The Respondents thereafter closed their case without calling any witness on the question of liability.
D. THE TRIAL COURT'S JUDGMENT
10. The trial Court correctly directed itself that, notwithstanding the Respondents' failure to call any witness, the burden of proving negligence on a balance of probabilities remained on the Appellant throughout, citing Susan Mumbi v. Kefala Greedhin HCC 3321 of 1993 and Motex Knitwear Limited v. Gopitex Knitwear Mills Limited, Nairobi HCCC No. 834 of 2002. It then held that the Appellant's own admission — that he held no licence, had undertaken no driving course, had no insurance, and "shouldn't be riding a motorcycle" — showed that he had been reckless and had "no business riding the motor cycle on the road," reasoning that to award him damages in those circumstances would send the wrong message to "anybody, all and sundry" who might "pick up an automobile and drive/ride it on the road, and cry foul when an accident occurs." The Court further held that none of the particulars of negligence pleaded against the Respondents had been proved, since it was "not enough for the Plaintiff to simply state that the 3rd Defendant hit him from behind," and that PW4's evidence could not assist the Court in determining who was to blame. On that basis, the suit was dismissed with costs to the Respondents. The Court nonetheless recorded that, had liability been established, it would have awarded Kshs. 500,000/- as general damages and Kshs. 6,550/- as special damages.
E. THE APPEAL
11. Aggrieved, the Appellant preferred this appeal by a Memorandum of Appeal dated 20th March 2023, raising eight grounds which, in substance, contend that the trial magistrate erred in dismissing the claim despite the absence of any contrary evidence (Grounds 1, 4, 5 and 6); that she impermissibly elevated the standard of proof and abandoned impartiality (Grounds 2 and 3); that the contingent award of Kshs. 500,000/- was too low (Ground 7); and that she failed to apportion liability, wholly blaming the Appellant (Ground 8).
Submissions for the Appellant
12. The Appellant's Counsel submits that a driver is under a continuing duty to take reasonable care for the safety of other road users, and that where an accident occurs the burden falls on the person alleged to have caused it to show either a probable cause exonerating him or that the accident was due to circumstances beyond his control. It is submitted that the 3rd Respondent, who alone could explain how and why the hearse came to ram into the Appellant's motorcycle from behind, was never called to testify, and that this Court should draw an adverse inference from that failure. Reliance is placed on Mercy Mueni Mutuku v. Susan Oyondi Ombogo [2021] eKLR for the proposition that, "where there is credible evidence from the Plaintiff, the failure to adduce any evidence by the defence may well mean that the Plaintiff has attained the standard prescribed in civil proceedings." Notably, the Appellant's submissions do not engage at all with the trial Court's central finding regarding his own admitted lack of a licence, training and insurance.
Submissions for the Respondents
13. The Respondents' Counsel submits that an appellate Court will not interfere with a trial Court's findings of fact unless shown to be based on no evidence, a misapprehension of the evidence, or the application of wrong principles, citing Ephantus Mwangi & Another v. Duncan Mwangi Wambugu (1982-88) 1 KAR 278. It is submitted that the Appellant's own evidence was insufficient to establish how the collision occurred: he produced no sketch map, no scene evidence and no independent eyewitness, and PW4's evidence could not assist since she was not the investigating officer, had not visited the scene, and confirmed that the police abstract did not blame the 3rd Respondent, with the matter still pending investigation and nobody charged. It is further submitted that a Defendant's failure to call evidence does not itself entitle a Plaintiff to judgment, citing Gabriel Owe Okello v. Ujenzi Quarries Ltd [2017] eKLR, Karugi and Another v. Kabiya and 3 Others [1987] eKLR, and Nickson Muthoka Mutiri v. Kenya Agricultural Research Institute [2016] eKLR. Finally, it is submitted that the Appellant, by his own admission, rode without a licence, training or insurance, exposing himself and other road users to danger and rendering him the author of his own misfortune, relying, among other authorities, on the Ugandan decision in Bram Kitumba v. Uganda Telecommunications Corporation, Kampala HCCS No. 395 of 1991, for the proposition that no one can recover in an action founded on the breach of a statute.
F. THE DUTY OF THE FIRST APPELLATE COURT
14. This being a first appeal, this Court is obliged to re-evaluate, re-assess and reconsider the evidence on record afresh and to reach its own independent conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses testify (Selle v. Associated Motor Boat Co. Ltd [1968] EA 123). It will not interfere with a trial Court's findings of fact unless satisfied that they are based on no evidence, on a misapprehension of the evidence, or that the trial Court is shown demonstrably to have acted on wrong principles (Ephantus Mwangi & Another v. Duncan Mwangi Wambugu (1982-88) 1 KAR 278; Mwanasokoni v. Kenya Bus Services Ltd (1982-88) 1 KAR 870).
G. ANALYSIS AND DETERMINATION
(i) Liability
15. The trial Court correctly recognised that the burden of proving negligence on a balance of probabilities rests on the Plaintiff throughout, and does not shift merely because a Defendant calls no evidence. That much is settled: a Defendant's silence does not entitle a Plaintiff to judgment as of right; the Court must still be satisfied that the Plaintiff has adduced some credible and believable evidence capable of sustaining his case in the absence of rebuttal as was decided in the Court of Appeal case of Charterhouse Bank Limited (Under Statutory Management) v. Frank Kamau [2016] eKLR). The question on this appeal is therefore not whether the Respondents' silence alone proves the Appellant's case, but whether the Appellant's own evidence, fairly assessed, was sufficient to meet that standard — and, if so, whether the trial Court's stated reasons for nonetheless rejecting it can be sustained.
16. On the mechanics of the collision, the Appellant's sworn, unrebutted evidence was that he was riding in his lane when the hearse struck him from behind without any warning. No witness for the Respondents contradicted this. The 3rd Respondent's account — that the Appellant had suddenly swerved into the hearse's path while it was overtaking — exists only as an unsworn witness statement that was never adopted as evidence and never tested by cross-examination; it was not read into the trial record, and this Court can give it no evidential weight whatsoever. It is a real gap in the Appellant's own presentation of his case that he did not call the person described in his own Advocates' demand letter as a fellow occupant of the motorcycle, one Allan Barasa Soita, who might have corroborated how the collision occurred; no explanation for that omission was offered, and this Court takes it into account as a matter going to caution in evaluating the completeness of the Appellant's account. It does not, however, displace the substance of what was sworn to and left unchallenged: that a vehicle travelling behind the Appellant, in the same direction, collided with the rear of his motorcycle.
17. A rear-end collision of this kind is not an occurrence that ordinarily happens without some fault on the part of the following driver — whether excessive speed, following too closely, or inattention to the road ahead — and where the following driver offers no explanation at all, the natural inference is that no explanation exonerating him exists. The matters said to bear on how the impact happened (following distance, speed for the prevailing visibility, whether a proper lookout was kept) were peculiarly within the knowledge of the 3rd Respondent, the one witness the Respondents themselves listed but never called. In these circumstances, this Court is satisfied that the Appellant's evidence, though not as complete as it might have been, was credible and sufficient to establish, on a balance of probabilities, that the collision was caused by the negligence of the hearse's driver in failing to avoid running into the motorcycle ahead of him.
18. The more difficult question is whether the trial Court was nonetheless entitled to dismiss the claim on account of the Appellant's own admitted want of a licence, driving training and insurance. This Court has considered that reasoning with care and, with respect, is unable to sustain it. Riding a motorcycle without a licence, training or insurance is a serious regulatory matter and a criminal offence in its own right, but it is not, without more, proof that the rider caused or contributed to a particular collision. Under section 68(3) of the Traffic Act, a failure to observe traffic regulations does not of itself found civil liability, though it may be relied upon by a party "as tending to establish or to negative" liability in question — that is, it must be causally connected to how the accident happened before it can count against a claimant. Courts have consistently held that an unlicensed rider's status has "nothing to do with the cause of the accident" unless linked to the manner of riding that produced the collision, see Kibos Sugar Factory and Allied Industries Limited v. Ngesa (Civil Appeal, KEHC, 2024); Kamau v. Kamau [2026] KEHC 6758. Nothing on this record connects the Appellant's lack of a licence to how this rear-end collision occurred. On the only sworn account available, he was proceeding in his lane when struck from behind by an overtaking vehicle he could not have avoided by any degree of skill or qualification. The trial Court's reasoning — that awarding damages to an unlicensed rider would send the wrong message to "anybody, all and sundry" — conflates the distinct questions of regulatory non-compliance and tortious causation, and, in substance, imposes a moral precondition to recovery that has no proper place in the assessment of negligence under Kenyan law. That was a misdirection on a matter of principle, of the kind an appellate Court is entitled to correct as was decided by the Court of Appeal in Ephantus Mwangi & Another v. Duncan Mwangi Wambugu (1982-88) 1 KAR 278.
19. Equally, none of the Respondents' pleaded particulars of contributory negligence — riding in a zigzag manner, at excessive speed, while intoxicated, or while using a mobile phone — was supported by any evidence. They were not put to the Appellant in a manner he could meaningfully answer beyond denial, nor proved through any witness, and remain bare allegations in a pleading that a party who calls no evidence cannot convert into findings of fact and I am persuaded by the Court’s decision in Trust Bank Limited v. Paramount Universal Bank Limited & 2 Others, HCCS No. 1243 of 2001.
20. For these reasons, this Court sets aside the trial Court's finding that the Appellant failed to prove his case, and finds instead that the 3rd Respondent's negligence, for which the 1st and 2nd Respondents are vicariously and as owners liable, was the sole cause of the accident. Grounds 1, 4, 5 and 6 of the appeal succeed. Ground 8 (failure to apportion liability) is subsumed in this finding: no evidentiary basis exists on this record for apportioning any share of fault to the Appellant, and none is attempted beyond the unproved illegality point already addressed. Grounds 2 and 3 (that the standard of proof was elevated to a criminal one) are not, strictly, made out on a literal reading of the judgment, which correctly recited the civil standard; but the trial Court's practical application of that standard, for the reasons given above, was flawed in substance, and those grounds are treated as succeeding to that extent only.
(ii) General damages
21. The injuries established on the unchallenged medical evidence are a head injury with loss of consciousness, a fracture of the skull, and bruises to the scalp, classified as grievous harm, treated conservatively without surgical intervention, with full recovery and no permanent or temporary disability by the time of either medical examination, save for occasional mild headaches relieved by rest or analgesia.
22. The Appellant urged an award of Kshs. 1,500,000/-, relying principally on Charles Mwania & Another v. Batty Hassan [2008] eKLR. This Court has examined that authority and finds it a poor comparator: the claimant there sustained a fracture of the tibia and fibula, a wound below the knee, a dislocated ankle and wounds to the hand and finger, injuries of a different character and order of severity requiring skin-grafting surgery, for which Kshs. 800,000/- was awarded and upheld on appeal in 2008. It offers little guidance for a skull fracture that resolved without surgery or lasting impairment. The Respondents urged Kshs. 100,000/-, relying on FM (Minor suing through mother and next friend) [2020] eKLR and Ndung'u Dennis v. Ann Wangari Ndirangu & Another [2018] eKLR, both concerning concussion (brief loss of consciousness) with assorted blunt injuries rather than a diagnosed fracture of the skull; a fractured skull is, in principle, a more serious injury than concussion alone, even where — as here — the outcome was a full recovery, since it reflects an actual breach of the protective bone encasing the brain rather than a soft-tissue injury only.
23. This Court has instead had regard to comparable authorities squarely addressing skull fractures with good recovery. In Julius Chelule & Another v. Nathan Kinyanjui [2013] eKLR, an award for a depressed fracture of the skull was reduced on appeal from Kshs. 600,000/- to Kshs. 500,000/-; and in Moiz Motors Limited & Another v. Harun Ngethe Wanjiru [2021] eKLR, Kshs. 700,000/- was awarded for a depressed frontal skull fracture accompanied by additional severe facial, chest, knee and hip soft-tissue injuries not present in this case. Weighing the Appellant's injury — a skull fracture with head injury and loss of consciousness, resolving fully without surgery, against a bracket bounded by Kshs. 500,000/- (skull fracture alone) and Kshs. 700,000/- (skull fracture plus multiple additional injury sites) — this Court finds that Kshs. 500,000/- is the properly anchored award, and notes that it happens to coincide with the figure the trial Court indicated it would have awarded, even though the trial Court's own judgment did not set out the comparator analysis supporting that figure. General damages for pain, suffering and loss of amenities are accordingly assessed at Kshs. 500,000/-.
(iii) Special damages
24. The trial Court indicated that, of the Kshs. 21,970/- pleaded, only Kshs. 6,550/- was strictly proved by admissible receipts. No ground of appeal takes specific issue with that finding, and this Court finds no basis to disturb it. Special damages are accordingly assessed at Kshs. 6,550/-.
H. DISPOSITION
25. For the foregoing reasons, this Court finds that the appeal succeeds on liability and substantially on quantum. The judgment and decree of the trial Court dismissing the suit are set aside.
26. The final orders of this Court are as follows:
(a) The appeal is allowed.
(b) The 1st, 2nd and 3rd Respondents are found jointly and severally 100% liable for the accident of 14th September 2020.
(c) Judgment is entered for the Appellant against the Respondents jointly and severally in the sum of Kshs. 506,550/-, comprising general damages of Kshs. 500,000/- and special damages of Kshs. 6,550/-.
(d) Interest on (c) above shall run at Court rates from the date of filing of the suit until payment in full.
(e) The Appellant shall have the costs of this appeal and of the proceedings before the trial Court.
It is so ordered.
In the presence of:
Mr. Juma for the Appellant
Ms.Gati for the Respondents
Irene Chelang'at - Court Assistant
1. This is a first appeal from the judgment of the Chief Magistrate's Court at Bungoma (Hon. A.A. Odawo, PM) delivered on 13th March 2023 in CMCC No. E084 of 2021, in which the trial Court held that the Appellant had failed to prove his case on a balance of probabilities and dismissed his suit in its entirety with costs, while indicating, for completeness, the quantum it would have awarded had liability been established.
2. The Appellant, Samuel Sifuna Wanjala, was at the material time an 18-year-old student. It is common ground that on 14th September 2020, along the Bungoma–Malaba Road at Mayanja area, a collision occurred between motorcycle registration number KMER 916T "TV Star," on which the Appellant was travelling, and motor vehicle registration number KCU 967B, a Toyota Nissan van fitted out as a hearse. The 1st Respondent is the registered owner of the hearse, the 2nd Respondent (trading as Narok Sweet Home) is its beneficial/possessory owner, and the 3rd Respondent, Vincent Auta, was its driver at the material time.
B. THE PLEADINGS BEFORE THE TRIAL COURT
3. By a Plaint dated 7th April 2021, the Appellant pleaded that while he was riding the motorcycle along the stated road, the 3rd Respondent, driving the hearse with the authority of the 1st and 2nd Respondents, negligently, carelessly and recklessly caused the hearse to ram into the rear of his motorcycle without any warning or hooting, causing him serious injuries. He particularised the Respondents' negligence as including permitting a defective vehicle to be driven, driving at excessive speed, failure to observe traffic rules, driving while not properly trained, employing an unqualified driver, and failure to brake, swerve or otherwise avoid the accident, and pleaded reliance, so far as necessary, on the doctrine of res ipsa loquitor. He claimed special damages of Kshs. 21,970/-, general damages, future medical expenses, costs and interest.
4. The Respondents, by a joint statement of defence dated 2nd September 2021, denied the occurrence of the accident as pleaded and, in the alternative and without prejudice, averred that if any accident occurred it was wholly or substantially caused by the Appellant's own negligence in riding the motorcycle without a helmet, without a valid licence, in a zigzag manner, at excessive speed, while using a mobile phone, and while intoxicated, and in failing to have due regard to other road users, apply brakes or take evasive action.
C. THE EVIDENCE BEFORE THE TRIAL COURT
5. The Appellant's case comprised the evidence of four witnesses. PW1, Dr. Joseph Sokobe, produced a medical report dated 26th March 2021 (examination conducted some six months after the accident), recording that the Appellant had sustained a head injury with loss of consciousness, a fracture of the skull, and bruises on the scalp, treated conservatively with tetanus toxoid, analgesics, antibiotics and wound cleaning, with healed scars on the scalp and normal vital signs on examination; his opinion was that the Appellant "sustained both soft and bony tissue injuries from which he has recovered," with no permanent or temporary disability assessed.
6. PW2, Elias Adoka, a clinician at Bungoma County Referral Hospital, produced the discharge summary and P3 Form, and testified that the Appellant was admitted on 14th September 2020 and discharged on 17th September 2020, with multiple bruises to the head and swelling, a fracture, left elbow swelling, and that a CT scan revealed multiple linear fractures; the degree of injury was classified as grievous harm. Under cross-examination, PW2 conceded the discharging doctor was an intern acting on instructions, and that the discharge summary bore no hospital stamp, unlike the P3 Form.
7. PW3, the Appellant himself, testified that he was riding the motorcycle along the Bungoma–Malaba Road when he was hit from behind by the hearse, registration KCU 967B, without warning. Under cross-examination, he stated: "I had no insurance at the time of the RTA...... I didn't undertake any driving course. I have no driving licence. True, I shouldn't be riding a motorcycle." He also stated that the motorcycle belonged to a third party, one Oscar, and that he did not know which insurance company covered it.
8. PW4, PC Mwanamkasi Mohamed of the Bungoma Traffic Police, produced the Police Abstract and confirmed that the accident involved the two vehicles described, that the Appellant was the rider of the motorcycle, and that the registered owner and driver of the hearse were as pleaded. Under cross-examination, she conceded that she was not the investigating officer, had not visited the scene, did not have the police file, could not say whether the rider held a driving licence, and that the matter remained under investigation with nobody charged.
9. The Respondents called no witness. By consent of Counsel, a second medical report dated 25th May 2022, prepared by Dr. Walter Adero, was admitted as Defence Exhibit 1. That report is internally inconsistent with the rest of the record in two material respects: it records the Appellant's age as 36 years, against 18 years consistently recorded elsewhere, and describes him as "a pedestrian on the highway when he got knocked by an unknown vehicle from behind" rather than the rider of a named motorcycle struck by an identified vehicle. Neither party addressed this discrepancy at trial or on appeal. On the substance of the injury, however, Dr. Adero's opinion was consistent with Dr. Sokobe's: a moderate head injury with soft-tissue injuries to the scalp and extremities, near-full recovery, occasional mild headaches relieved by rest or analgesia, resumption of normal activity without restriction, and no permanent or temporary disability. The Respondents thereafter closed their case without calling any witness on the question of liability.
D. THE TRIAL COURT'S JUDGMENT
10. The trial Court correctly directed itself that, notwithstanding the Respondents' failure to call any witness, the burden of proving negligence on a balance of probabilities remained on the Appellant throughout, citing Susan Mumbi v. Kefala Greedhin HCC 3321 of 1993 and Motex Knitwear Limited v. Gopitex Knitwear Mills Limited, Nairobi HCCC No. 834 of 2002. It then held that the Appellant's own admission — that he held no licence, had undertaken no driving course, had no insurance, and "shouldn't be riding a motorcycle" — showed that he had been reckless and had "no business riding the motor cycle on the road," reasoning that to award him damages in those circumstances would send the wrong message to "anybody, all and sundry" who might "pick up an automobile and drive/ride it on the road, and cry foul when an accident occurs." The Court further held that none of the particulars of negligence pleaded against the Respondents had been proved, since it was "not enough for the Plaintiff to simply state that the 3rd Defendant hit him from behind," and that PW4's evidence could not assist the Court in determining who was to blame. On that basis, the suit was dismissed with costs to the Respondents. The Court nonetheless recorded that, had liability been established, it would have awarded Kshs. 500,000/- as general damages and Kshs. 6,550/- as special damages.
E. THE APPEAL
11. Aggrieved, the Appellant preferred this appeal by a Memorandum of Appeal dated 20th March 2023, raising eight grounds which, in substance, contend that the trial magistrate erred in dismissing the claim despite the absence of any contrary evidence (Grounds 1, 4, 5 and 6); that she impermissibly elevated the standard of proof and abandoned impartiality (Grounds 2 and 3); that the contingent award of Kshs. 500,000/- was too low (Ground 7); and that she failed to apportion liability, wholly blaming the Appellant (Ground 8).
Submissions for the Appellant
12. The Appellant's Counsel submits that a driver is under a continuing duty to take reasonable care for the safety of other road users, and that where an accident occurs the burden falls on the person alleged to have caused it to show either a probable cause exonerating him or that the accident was due to circumstances beyond his control. It is submitted that the 3rd Respondent, who alone could explain how and why the hearse came to ram into the Appellant's motorcycle from behind, was never called to testify, and that this Court should draw an adverse inference from that failure. Reliance is placed on Mercy Mueni Mutuku v. Susan Oyondi Ombogo [2021] eKLR for the proposition that, "where there is credible evidence from the Plaintiff, the failure to adduce any evidence by the defence may well mean that the Plaintiff has attained the standard prescribed in civil proceedings." Notably, the Appellant's submissions do not engage at all with the trial Court's central finding regarding his own admitted lack of a licence, training and insurance.
Submissions for the Respondents
13. The Respondents' Counsel submits that an appellate Court will not interfere with a trial Court's findings of fact unless shown to be based on no evidence, a misapprehension of the evidence, or the application of wrong principles, citing Ephantus Mwangi & Another v. Duncan Mwangi Wambugu (1982-88) 1 KAR 278. It is submitted that the Appellant's own evidence was insufficient to establish how the collision occurred: he produced no sketch map, no scene evidence and no independent eyewitness, and PW4's evidence could not assist since she was not the investigating officer, had not visited the scene, and confirmed that the police abstract did not blame the 3rd Respondent, with the matter still pending investigation and nobody charged. It is further submitted that a Defendant's failure to call evidence does not itself entitle a Plaintiff to judgment, citing Gabriel Owe Okello v. Ujenzi Quarries Ltd [2017] eKLR, Karugi and Another v. Kabiya and 3 Others [1987] eKLR, and Nickson Muthoka Mutiri v. Kenya Agricultural Research Institute [2016] eKLR. Finally, it is submitted that the Appellant, by his own admission, rode without a licence, training or insurance, exposing himself and other road users to danger and rendering him the author of his own misfortune, relying, among other authorities, on the Ugandan decision in Bram Kitumba v. Uganda Telecommunications Corporation, Kampala HCCS No. 395 of 1991, for the proposition that no one can recover in an action founded on the breach of a statute.
F. THE DUTY OF THE FIRST APPELLATE COURT
14. This being a first appeal, this Court is obliged to re-evaluate, re-assess and reconsider the evidence on record afresh and to reach its own independent conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses testify (Selle v. Associated Motor Boat Co. Ltd [1968] EA 123). It will not interfere with a trial Court's findings of fact unless satisfied that they are based on no evidence, on a misapprehension of the evidence, or that the trial Court is shown demonstrably to have acted on wrong principles (Ephantus Mwangi & Another v. Duncan Mwangi Wambugu (1982-88) 1 KAR 278; Mwanasokoni v. Kenya Bus Services Ltd (1982-88) 1 KAR 870).
G. ANALYSIS AND DETERMINATION
(i) Liability
15. The trial Court correctly recognised that the burden of proving negligence on a balance of probabilities rests on the Plaintiff throughout, and does not shift merely because a Defendant calls no evidence. That much is settled: a Defendant's silence does not entitle a Plaintiff to judgment as of right; the Court must still be satisfied that the Plaintiff has adduced some credible and believable evidence capable of sustaining his case in the absence of rebuttal as was decided in the Court of Appeal case of Charterhouse Bank Limited (Under Statutory Management) v. Frank Kamau [2016] eKLR). The question on this appeal is therefore not whether the Respondents' silence alone proves the Appellant's case, but whether the Appellant's own evidence, fairly assessed, was sufficient to meet that standard — and, if so, whether the trial Court's stated reasons for nonetheless rejecting it can be sustained.
16. On the mechanics of the collision, the Appellant's sworn, unrebutted evidence was that he was riding in his lane when the hearse struck him from behind without any warning. No witness for the Respondents contradicted this. The 3rd Respondent's account — that the Appellant had suddenly swerved into the hearse's path while it was overtaking — exists only as an unsworn witness statement that was never adopted as evidence and never tested by cross-examination; it was not read into the trial record, and this Court can give it no evidential weight whatsoever. It is a real gap in the Appellant's own presentation of his case that he did not call the person described in his own Advocates' demand letter as a fellow occupant of the motorcycle, one Allan Barasa Soita, who might have corroborated how the collision occurred; no explanation for that omission was offered, and this Court takes it into account as a matter going to caution in evaluating the completeness of the Appellant's account. It does not, however, displace the substance of what was sworn to and left unchallenged: that a vehicle travelling behind the Appellant, in the same direction, collided with the rear of his motorcycle.
17. A rear-end collision of this kind is not an occurrence that ordinarily happens without some fault on the part of the following driver — whether excessive speed, following too closely, or inattention to the road ahead — and where the following driver offers no explanation at all, the natural inference is that no explanation exonerating him exists. The matters said to bear on how the impact happened (following distance, speed for the prevailing visibility, whether a proper lookout was kept) were peculiarly within the knowledge of the 3rd Respondent, the one witness the Respondents themselves listed but never called. In these circumstances, this Court is satisfied that the Appellant's evidence, though not as complete as it might have been, was credible and sufficient to establish, on a balance of probabilities, that the collision was caused by the negligence of the hearse's driver in failing to avoid running into the motorcycle ahead of him.
18. The more difficult question is whether the trial Court was nonetheless entitled to dismiss the claim on account of the Appellant's own admitted want of a licence, driving training and insurance. This Court has considered that reasoning with care and, with respect, is unable to sustain it. Riding a motorcycle without a licence, training or insurance is a serious regulatory matter and a criminal offence in its own right, but it is not, without more, proof that the rider caused or contributed to a particular collision. Under section 68(3) of the Traffic Act, a failure to observe traffic regulations does not of itself found civil liability, though it may be relied upon by a party "as tending to establish or to negative" liability in question — that is, it must be causally connected to how the accident happened before it can count against a claimant. Courts have consistently held that an unlicensed rider's status has "nothing to do with the cause of the accident" unless linked to the manner of riding that produced the collision, see Kibos Sugar Factory and Allied Industries Limited v. Ngesa (Civil Appeal, KEHC, 2024); Kamau v. Kamau [2026] KEHC 6758. Nothing on this record connects the Appellant's lack of a licence to how this rear-end collision occurred. On the only sworn account available, he was proceeding in his lane when struck from behind by an overtaking vehicle he could not have avoided by any degree of skill or qualification. The trial Court's reasoning — that awarding damages to an unlicensed rider would send the wrong message to "anybody, all and sundry" — conflates the distinct questions of regulatory non-compliance and tortious causation, and, in substance, imposes a moral precondition to recovery that has no proper place in the assessment of negligence under Kenyan law. That was a misdirection on a matter of principle, of the kind an appellate Court is entitled to correct as was decided by the Court of Appeal in Ephantus Mwangi & Another v. Duncan Mwangi Wambugu (1982-88) 1 KAR 278.
19. Equally, none of the Respondents' pleaded particulars of contributory negligence — riding in a zigzag manner, at excessive speed, while intoxicated, or while using a mobile phone — was supported by any evidence. They were not put to the Appellant in a manner he could meaningfully answer beyond denial, nor proved through any witness, and remain bare allegations in a pleading that a party who calls no evidence cannot convert into findings of fact and I am persuaded by the Court’s decision in Trust Bank Limited v. Paramount Universal Bank Limited & 2 Others, HCCS No. 1243 of 2001.
20. For these reasons, this Court sets aside the trial Court's finding that the Appellant failed to prove his case, and finds instead that the 3rd Respondent's negligence, for which the 1st and 2nd Respondents are vicariously and as owners liable, was the sole cause of the accident. Grounds 1, 4, 5 and 6 of the appeal succeed. Ground 8 (failure to apportion liability) is subsumed in this finding: no evidentiary basis exists on this record for apportioning any share of fault to the Appellant, and none is attempted beyond the unproved illegality point already addressed. Grounds 2 and 3 (that the standard of proof was elevated to a criminal one) are not, strictly, made out on a literal reading of the judgment, which correctly recited the civil standard; but the trial Court's practical application of that standard, for the reasons given above, was flawed in substance, and those grounds are treated as succeeding to that extent only.
(ii) General damages
21. The injuries established on the unchallenged medical evidence are a head injury with loss of consciousness, a fracture of the skull, and bruises to the scalp, classified as grievous harm, treated conservatively without surgical intervention, with full recovery and no permanent or temporary disability by the time of either medical examination, save for occasional mild headaches relieved by rest or analgesia.
22. The Appellant urged an award of Kshs. 1,500,000/-, relying principally on Charles Mwania & Another v. Batty Hassan [2008] eKLR. This Court has examined that authority and finds it a poor comparator: the claimant there sustained a fracture of the tibia and fibula, a wound below the knee, a dislocated ankle and wounds to the hand and finger, injuries of a different character and order of severity requiring skin-grafting surgery, for which Kshs. 800,000/- was awarded and upheld on appeal in 2008. It offers little guidance for a skull fracture that resolved without surgery or lasting impairment. The Respondents urged Kshs. 100,000/-, relying on FM (Minor suing through mother and next friend) [2020] eKLR and Ndung'u Dennis v. Ann Wangari Ndirangu & Another [2018] eKLR, both concerning concussion (brief loss of consciousness) with assorted blunt injuries rather than a diagnosed fracture of the skull; a fractured skull is, in principle, a more serious injury than concussion alone, even where — as here — the outcome was a full recovery, since it reflects an actual breach of the protective bone encasing the brain rather than a soft-tissue injury only.
23. This Court has instead had regard to comparable authorities squarely addressing skull fractures with good recovery. In Julius Chelule & Another v. Nathan Kinyanjui [2013] eKLR, an award for a depressed fracture of the skull was reduced on appeal from Kshs. 600,000/- to Kshs. 500,000/-; and in Moiz Motors Limited & Another v. Harun Ngethe Wanjiru [2021] eKLR, Kshs. 700,000/- was awarded for a depressed frontal skull fracture accompanied by additional severe facial, chest, knee and hip soft-tissue injuries not present in this case. Weighing the Appellant's injury — a skull fracture with head injury and loss of consciousness, resolving fully without surgery, against a bracket bounded by Kshs. 500,000/- (skull fracture alone) and Kshs. 700,000/- (skull fracture plus multiple additional injury sites) — this Court finds that Kshs. 500,000/- is the properly anchored award, and notes that it happens to coincide with the figure the trial Court indicated it would have awarded, even though the trial Court's own judgment did not set out the comparator analysis supporting that figure. General damages for pain, suffering and loss of amenities are accordingly assessed at Kshs. 500,000/-.
(iii) Special damages
24. The trial Court indicated that, of the Kshs. 21,970/- pleaded, only Kshs. 6,550/- was strictly proved by admissible receipts. No ground of appeal takes specific issue with that finding, and this Court finds no basis to disturb it. Special damages are accordingly assessed at Kshs. 6,550/-.
H. DISPOSITION
25. For the foregoing reasons, this Court finds that the appeal succeeds on liability and substantially on quantum. The judgment and decree of the trial Court dismissing the suit are set aside.
26. The final orders of this Court are as follows:
(a) The appeal is allowed.
(b) The 1st, 2nd and 3rd Respondents are found jointly and severally 100% liable for the accident of 14th September 2020.
(c) Judgment is entered for the Appellant against the Respondents jointly and severally in the sum of Kshs. 506,550/-, comprising general damages of Kshs. 500,000/- and special damages of Kshs. 6,550/-.
(d) Interest on (c) above shall run at Court rates from the date of filing of the suit until payment in full.
(e) The Appellant shall have the costs of this appeal and of the proceedings before the trial Court.
It is so ordered.
In the presence of:
Mr. Juma for the Appellant
Ms.Gati for the Respondents
Irene Chelang'at - Court Assistant