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Court of AppealPartially AllowedNot stated in the judgment

Nandwa v Kenya Transmission Company Ltd (Civil Appeal E175 of 2021) [2026] KECA 1484 (KLR)

Court of Appeal of Kenya
24 July 2026
3,037 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A pedestrian hit while crossing a Kenyan road won Kshs 503,000 after the Court of Appeal found her and the driver equally at fault.

What this practically means

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Executive summary

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This is a second appeal, heard at the Court of Appeal at Eldoret, arising from a road accident of 31st March 2017 on the Kitale-Eldoret road in which the appellant, a pedestrian, was knocked down by a vehicle owned by the respondent, Kenya Transmission Company Limited. The parties agreed only that the accident occurred, that the appellant was injured and that the respondent owned the vehicle; liability was contested throughout. The trial magistrate found the respondent 90% liable and awarded general damages of Kshs 1,000,000 plus special damages of Kshs 6,000, less 10% contribution, a net award of Kshs 905,400. The High Court, per Olga Sewe J, allowed the respondent's appeal, found the appellant wholly to blame on the strength of the P3 Form and the police evidence, and dismissed the suit. Revisiting the evidence because the two courts below had made different findings of fact, the Court of Appeal held that neither side discharged the burden of proof. The appellant did not prove she was walking beside the road, and the driver, who admitted seeing her and trying unsuccessfully to swerve, led no evidence of his speed or of any real effort to brake or avoid her. PW1, who merely produced the Occurrence Book extract, was not the Investigating Officer and never visited the scene, so her evidence could not establish causation. With two conflicting accounts and no independent corroboration, the Court found both parties equally negligent, apportioned liability 50:50, substituted judgment for the appellant at the trial court's damages less 50% (a net award of Kshs 503,000), awarded interest on the respective heads of damages, and gave the appellant half the costs in the courts below together with the costs of this appeal. The appeal partially succeeded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court erred in holding that the appellant was wholly liable for the accident.
  2. 2.What apportionment of liability is just on the record, given the conflicting accounts of the pedestrian and the driver, the absence of independent corroboration, and neither party proving the other solely to blame.
  3. 3.What consequential relief should issue: the quantum of damages recoverable per the trial court's assessment, interest, and costs.

Key legal issues

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01

Scope of a second appeal: matters of law only, and the entitlement to revisit the evidence where the courts below made different findings of fact.

Holding

A second appeal is confined to questions of law, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is plainly wrong. Where, as here, the trial magistrate found the respondent 90% liable while the first appellate judge found the appellant wholly liable, the second appellate court is duty-bound to revisit the record.

Reasoning

The Court adopted the settled rule in Kenya Breweries Ltd v Godfrey Odoyo on the limited scope of a second appeal. It nevertheless held that the restriction does not disable the Court where the two courts below have made different findings on disputed facts. Because the trial court and the High Court reached opposite conclusions on how the accident occurred, the Court was bound to revisit the evidence before determining where liability lay.

p. 3
02

Burden of proof in a negligence action and its allocation between two conflicting, uncorroborated accounts.

Holding

The plaintiff alleging negligence bears the burden, on a balance of probabilities, of proving that the accident was caused by the defendant's negligence and the loss claimed. On a record comprising only two conflicting accounts, neither corroborated by independent evidence, the appellant failed to prove the respondent solely to blame, and the respondent equally failed to prove the appellant solely to blame.

Reasoning

Restating sections 107 and 108 of the Evidence Act and the passage from Charlesworth & Percy on Negligence, the Court affirmed that the plaintiff must establish each element of the tort. Because neither party called an independent eyewitness and each advanced a self-serving version, the appellant did not discharge the burden of proving sole negligence by the respondent, while the respondent equally failed to establish the appellant's sole blame.

p. 3
03

The evidentiary duties owed to the court by a pedestrian and by a driver in a road-traffic accident case.

Holding

A pedestrian must give evidence of where she was walking or standing before the accident, her distance from the road, and the precautions taken before crossing; a driver must explain his speed, the road conditions, his lookout and the effort made to avoid the accident. Parties must give the facts truthfully, supported where possible by impartial police investigation of the point of impact.

Reasoning

The Court set out an evidentiary framework for road-accident cases, emphasising that accidents occur in many versions and each party must truthfully explain what transpired, capable of support by impartial police investigation. Here the driver stated no speed and no effective evasive effort, while the appellant, if beside the road as she alleged, gave no evidence of her distance from it; neither fulfilled the duty, leaving two unsupported versions.

p. 3
04

Whether a pedestrian hit while crossing the road can be blamed wholly for the accident where the driver gives no evidence of speed or evasive action.

Holding

A driver who asserts that a pedestrian ran across the road must depose to his speed and to braking or other evasive action; absent that, the pedestrian cannot be blamed entirely. DW1's concession that he saw the appellant and tried unsuccessfully to swerve suggested his speed prevented avoidance, so both parties were negligent and liability had to be shared.

Reasoning

Applying Lakhamshi v Attorney General as adopted in Mutubwa v Thermopak, the Court reasoned that a driver who sees a pedestrian yet cannot avoid her invites an inference of negligence unless he explains his speed and evasive effort. DW1's bare account could not shift the entire blame to the pedestrian; drivers bear responsibility for the safety of other road users, including pedestrians.

p. 5
05

Equal apportionment of liability on scanty, conflicting evidence, and the evidentiary value of a police officer who was not the Investigating Officer.

Holding

Where the accounts conflict, the evidence is scanty, and there is no independent eyewitness, sketch plan, investigation report or evidence from the Investigating Officer, the court is handicapped in fixing the point of impact and it is just and equitable to apportion liability equally. A non-investigating officer who never visited the scene proves only that the accident occurred.

Reasoning

Guided by Ndiritu v Ropkoi, where the Court equally divided liability on scanty and conflicting evidence, and applying Evans Mogire Omwansa on the limited worth of a police abstract, the Court found that PW1, who produced only the Occurrence Book extract and never visited the scene, did not assist on causation. With neither account corroborated, liability was split equally at 50:50.

p. 5
06

Consequential relief: quantum, interest and costs flowing from the restored liability finding.

Holding

The trial court's assessment of general damages of Kshs. 1,000,000/= and special damages of Kshs. 6,000/= was adopted, subject to 50% contributory negligence, producing a net award of Kshs. 503,000/=, with interest on general damages from the date of the lower court judgment and on special damages from the date of filing suit, and half the costs to the appellant.

Reasoning

Quantum was not in dispute before the Court, the first appellate judge having indicated she would not have disturbed the trial award given the seriousness of the injuries but for the dismissal on liability. The Court therefore adopted the trial court's figures, applied the equal apportionment, awarded interest on the respective heads of damages, and confined the appellant to half the costs of the suit and the full costs of the appeal.

p. 6

Legal principles established

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  • On a second appeal the Court is confined to matters of law only, unless the courts below considered matters they should not have considered, failed to consider matters they should have considered, or the decision under appeal is plainly wrong such that no reasonable tribunal on the facts could reach it.
  • A driver who asserts that a pedestrian ran across the road must himself give evidence of the speed he was driving at and of any braking or other evasive action; without that evidence, the pedestrian cannot be blamed entirely for the accident.
  • A pedestrian is not to be blamed entirely for an accident merely because she was hit while crossing the road; drivers bear responsibility for the safety of other road users, including pedestrians.
  • Where the circumstances of an accident rest on scanty, conflicting accounts with no independent eyewitness and no evidence from the Investigating Officer, it is just and equitable to apportion liability equally between the parties.
  • A police officer who was not the Investigating Officer, did not visit the scene and produced only a police abstract is of no assistance to the court on causation, save to confirm that the accident occurred.

Court orders

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  1. 1.The finding of the High Court that the appellant was wholly liable for the accident is set aside and substituted with a finding of contributory negligence of 50% on the part of the appellant and 50% on the part of the respondent; the parties shall share liability on a 50:50 basis.
  2. 2.The judgment of the High Court and the subsequent decree are set aside and substituted with judgment for the appellant as per the trial court's assessment: general damages of Kshs. 1,000,000/= and special damages of Kshs. 6,000/=, less 50% contributory negligence, for a total award of Kshs. 503,000/=.
  3. 3.Interest on the general damages at court rates from the date of judgment in the lower court (2nd February 2018), and on the special damages from the date of filing suit (19th May 2017).
  4. 4.The appellant shall have half of the costs of the suit in the lower court, half of the costs in the High Court, and the costs of this appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Eldoret
Eldoret Civil Appeal No. 13 of 2018
Jurisdiction invoked
Second appellate jurisdiction of the Court of Appeal, exercised on the stated basis that a second appeal is confined to matters of law only; the judgment does not cite the specific constitutional or statutory provision vesting that jurisdiction.

Relief refused

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Restoration of the trial court's 90:10 apportionment of liability (under which the appellant bore only 10% contributory negligence).

The Court found that both parties failed to exercise the degree of care expected of reasonable road users and that neither proved the other solely to blame, so liability was divided equally rather than restored at 90:10.

p. 5

Full costs of the suit in the lower court, the High Court, and of the appeal.

Although costs follow the event, the appellant only partially succeeded and was confined to half of the costs of the suit in the two courts below, plus the costs of the appeal.

p. 6

Costs

Costs follow the event. The appellant shall have half of the costs of the suit in the lower court, High Court and costs of this appeal.

Quotable passages

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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 conclusion and for avoidance of doubt, the appeal partially succeeds. The judgment of the High Court is set aside and substituted with a judgment for the appellant in the sum of Kshs. 503,000/= together with costs and interest as stated above. Orders accordingly.
p. 6Final orders - disposition
Costs follow the event. The appellant shall have half of the costs of the suit in the lower court, High Court and costs of this appeal.
p. 6Costs order
We therefore set aside the finding of the learned Judge that the appellant was wholly liable and substitute it with a finding of contributory negligence of 50% on the part of the appellant and 50% on the part of the respondent.
p. 5Apportionment of liability
A pedestrian cannot be entirely blamed for an accident simply because he or she was hit while crossing the road. Drivers are responsible for the safety of other road users including pedestrians.
p. 5Duty of drivers to pedestrians
We find that the evidence on record does not support a finding of 100% liability against either party.
p. 5Neither party wholly to blame
We further hold that the appellant is entitled to interest on the general damages at court rates from the date of judgment in the lower court, 2nd February 2018, and on special damages from the date of filing suit, 19th May 2017.
p. 6Interest on damages

Issues in the judgment

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minor

Inconsistent description of PW1 within the judgment: the narrative of the first appeal calls PW1 'the respondent's witness', yet elsewhere the appellant is recorded as relying on PW1's evidence, PW1 (P.C Cheresek Kiptoo) was the plaintiff's police witness at trial who never visited the scene and only produced the Occurrence Book extract, and the same judgment also records the appellant's submission that PW1 stated the point of impact was off the road.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nandwa v Kenya Transmission Company Ltd (Civil Appeal E175 of 2021) [2026] KECA 1484 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1484/eng@2026-07-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.