Ndungu v Njuguna & 2 others (Civil Appeal 358 of 2019) [2025] KECA 1607 (KLR)
The bottom line
#Kenya's Court of Appeal restored a road accident victim's full award, confirming that two negligent drivers can each be made to pay the entire compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in apportioning liability between the 1st respondent and the 2nd and 3rd respondents in the ratio of 80:20%
- 2.Whether the trial court's decree, though silent in the judgment on whether liability was joint and/or several, was cured by the decree indicating that judgment was 'joint and several'
- 3.Whether the 1st and 2nd respondents were joint and several tortfeasors, entitling the appellant to recover the whole award from either of them
Key legal issues
#Mandate of a second appeal
The Court of Appeal on a second appeal determines matters of law only, unless the courts below considered matters they should not have, omitted matters they should have considered, or the decision is perverse.
The Court reminded itself of its long-established second-appeal mandate, citing Maina v Mugiria and Stanley N. Muriithi v Bernard Munene Ithiga. This limited its review to the single issue of law arising: the High Court's apportionment of liability, since factual findings of the courts below were outside its remit absent the stated exceptions.
Power of a first appellate judge to apportion liability between parties not before it
The High Court erred in finding the 2nd and 3rd respondents 20% liable: default judgment had been entered against the 2nd respondent in the trial court and the claim against the 3rd respondent had been withdrawn, so no liability could be assigned to the 3rd respondent.
The trial court had entered default judgment against the 2nd respondent on 28th November 2014 and the appellant withdrew the claim against the 3rd respondent on 23rd November 2015. There was therefore no case against the 3rd respondent and no legal or evidential basis for the High Court's 80:20 apportionment. The Judge granted orders that had not been sought in the appeal before him.
Joint and several liability of concurrent tortfeasors
The 1st and 2nd respondents were joint tortfeasors liable jointly and severally, and the appellant could recover the whole award from all of them or only one of them.
Adopting Zarina Akbarali Sharifi v Noshir Pirosesha Sethna, the Court held that where concurrent tortfeasors cause a single indivisible injury, each is liable for the whole damage, whether the concurrence is joint or merely several. A collision involving two vehicles arising from the concurrent negligence of each driver made the two respondents jointly and severally liable; the trial court's decree expressly described the judgment as 'joint and several', curing its silence in the main judgment.
Burden of proving negligence
A plaintiff alleging negligence bears the burden of proving it; there is no liability without fault in Kenya. The Court was satisfied the appellant discharged this burden on a balance of probabilities against the 1st and 2nd respondents.
The Court cited East Produce Kenya Limited v Christopher Astadio Osiro and Kiema Mutuku v Kenya Cargo Hauling Services Ltd. Because the defence called no witnesses, the appellant's evidence, including the police abstract and supporting documents, was unchallenged, mirroring the trial court's finding that liability was 100% in the plaintiff's favour.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered, failed to consider matters they should have considered, or the decision is perverse.
- Where several persons, not acting in concert, commit concurrent torts causing the same or indivisible damage, each tortfeasor is liable for the whole damage, and the injured party may recover the entire award from all or any one of them.
- A judge on first appeal has no jurisdiction to find liability against a party who was no longer before the court, and orders granted against a non-party or on a matter not raised by the parties are erroneous.
Court orders
#- 1.Appeal allowed to the extent that the High Court judgment dated 4th April 2019 is set aside in its entirety
- 2.The decree issued by the trial court dated 14th June 2016 be executed jointly and or severally as ordered by the trial court
- 3.Each party to bear its own costs of this appeal and before the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi H.C. Civil Appeal No. 454 of 2017
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate mandate over the High Court (the judgment invokes the Court's settled second-appeal mandate confining itself to matters of law, per Maina v Mugiria [1983] KLR 78)
Relief refused
#Costs of the appeal and of the High Court proceedings in favour of the appellant
Although the appeal succeeded on the apportionment of liability, the appeal against quantum (dismissed by the High Court) was not pursued successfully, so the court ordered that each party bear its own costs
Costs
Each party bears its own costs of this appeal and before the High Court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, we find this appeal with merit and we allow it to the extent that the judgment dated 4th April, 2019 is set aside in its entirety. The decree issued by the trial court dated 14th June 2016 be executed jointly and or severally as ordered by the trial court.
In the circumstances, the 1st and 2nd respondents were joint tortfeasors and were jointly and severally liable and the appellant is at liberty to recover the damages awarded from all of them or only one of them.
With respect the learned Judge thus erred in holding that the 2nd and 3rd respondents were liable for the accident at 20% while the 1st respondent was liable for the accident at 80%.
The learned Judge fell into error when he assigned liability to the 3rd respondent, who was neither a party before the trial court, nor before the High Court.
The question must be determined by applying common sense to the facts of each particular case.
the decree, the court clearly indicated that the judgment was “joint and several”. The decree, therefore, cured the oversight in the main judgment.
Issues in the judgment
#The vehicle registration for the vehicle in which the appellant was a passenger is given inconsistently: the plaint refers to KAU XXXW, while the 1st respondent's submissions refer to KAU 207W.
The High Court judgment as quoted dismissed the appeal 'with costs to the 1st respondent', yet the opening paragraph of this judgment states the learned Judge dismissed the appeal 'with costs to the appellant', an internal inconsistency in the narration of the decision below.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Njuguna & 2 others (Civil Appeal 358 of 2019) [2025] KECA 1607 (KLR)", Case Analysis (2025). Civil Appeal (Nairobi) - second appeal from Nairobi H.C. Civil Appeal No. 454 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1607/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.