Kashore Bhandari T/A Chetambe Jaggery v Samson Namasaka Juma
The bottom line
#Kenya's Court of Appeal threw out a road accident damages award because the injured cyclist never proved which vehicle hit him or how the crash happened.
What this practically means
#Executive summary
#Key legal issues
#Legal and evidential burden of proof in negligence claims
The respondent, as plaintiff, bore the legal burden under Section 107(1) of the Evidence Act to prove negligence and causation, and failed to discharge it; the courts below wrongly shifted that burden to the appellant.
Section 107(1) places the legal burden on the party who asserts the affirmative of the issue, while Sections 109 and 112 govern the evidential burden. The respondent did not identify the vehicle that hit him, no eyewitness was called, the informer was not produced as a witness, and the police confirmed the case was still pending investigation with no police file produced. None of the three witnesses saw how the accident occurred, and no evidence supported the pleaded particulars of negligence.
Scope of a second appeal
As a second appeal, the Court considers matters of law only, and may only disturb concurrent factual findings where irrelevant matters were considered, relevant matters ignored, or the decision is perverse.
The Court invoked the established second-appeal principle from Kenya Breweries Ltd vs Godfrey Odoyo. Here, the Courts below erred in law by holding the appellant liable without evidence of causation, effectively shifting the burden of proof, which is a question of law justifying interference.
Proof of causation in road traffic accidents
Determination of liability in a road traffic case is a matter of common sense applied to the facts, but the plaintiff must still adduce evidence establishing the cause of the accident; mere assertion that one was hit from behind, without identification of the vehicle or an eyewitness, is insufficient.
Relying on Michael Hubert Kloss and Mary Wambui Kabugu, the Court held that where no eyewitness is called and the police investigation was inconclusive, the plaintiff's case fails. The fact that the respondent was hit from behind was held by the courts below to suffice, but this Court found that conclusion unsupported by evidence.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will only interfere with concurrent findings of fact where the courts below considered matters they should not have, failed to consider matters they should have, or where the decision is perverse.
- The legal burden of proving negligence and causation in a road traffic claim lies on the plaintiff and remains throughout with the plaintiff; it cannot be shifted to the defendant merely because the plaintiff was hit from behind.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the High Court set aside in its entirety
- 3.Costs of the appeal awarded to the appellant
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega HCCA No. 12 of 2012
- Jurisdiction invoked
- Second appeal to the Court of Appeal on matters of law only (as a second appeal, the Court's duty is confined to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kashore Bhandari T/A Chetambe Jaggery v Samson Namasaka Juma", Case Analysis (2025). Second appeal from Kakamega HCCA No. 12 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1441/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.