Samuel Musangi Mwololo v Grain Industires Ltd & 1 other

B. Facts at Trial 3. PW1 PC Peter Kiogora of Embakasi police station, confirmed that on 17.05.2023 at about 08.20hrs, along North Airport Road an accident, occurred involving three motor vehicles all heading towards the same direction -Utawala. The circumstances of the said accident were that Motor vehicle Registration Number KCV 858Z Toyota Hiace (hereinafter referred to as the 3rd Suit Motor vehicle) did abruptly change lanes forcing the driver of the 1st suit motor vehicle (KCX 737S) to apply emergency brakes and was hit from behind by the 2nd suit motor vehicle (KCL 109Z). Due to the impact, the 1st suit Motor vehicle was pushed and rammed into the back of the 3rd suit motor Vehicle ( KCV 858Z ). 4. As a result of the said accident, the 1st suit motor vehicle got damaged on its right rear lamp, boot, front bumper, bonnet and grill. The 2nd suit motor vehicle had no physical damage, while the 3rd suit motor vehicle was damaged on its rear boot. The accident scene was attended to and booked under OB No 57/17/5/2022 and it was established that the 3rd suit Motor vehicle was at fault and was to be blamed for causing the said accident . 5. PW2 Josephat Kamau Ndui assessed the damage occasioned on the 1st suit motor vehicle and costed its repairs at Kshs 184,200/=. After repairs he did get a second opportunity to re assess the said motor vehicle again and confirmed that the repairs had been satisfactorily carried out. He presented both his pre assessment and post assessment reports and presented receipts amounting to Kshs 10,000/= for both reports and court attendance. 6. The Appellant adopted his witness statement as his evidence in chief and also produced all his documentary evidence to support his case. He confirmed under cross examination that the 3rd suit motor vehicle overtook them and encroached on his lane forcing him to give way. As a result, the 2nd suit motor vehicle knocked his motor vehicle from behind and pushed him to also ram into the back of the 3rd suit motor vehicle. 7. DW1 Albanus Mutua Muindi the driver of the 2nd suit motor vehicle also adopted his witness statement, where he explained that the 3rd suit motor vehicle overtook them at high speed and suddenly stopped in front of the 1st suit motor vehicle, causing both of them to apply emergency breaks. Unfortunately, they did not have enough room to stop and as a result the 1st suit motor vehicle rammed into the 3rd suit motor vehicle and he also rammed into the back of the said 2nd suit motor vehicle. He blamed the driver of the 3rd suit motor vehicle for causing the said accident as he overtook and stopped where there was no matatu stage. 8. Under cross examination DW1 confirmed that he had kept safe distance and had applied emergency brakes but the accident occurred because the distance between the said motor vehicles was too short for the motor vehicles to instantly come to a halt. He reiterated that he had maintained a safe driving distance and it was the 1st suit motor vehicle, that had rammed into the 3rd suit motor vehicle, before he also slightly rammed into the back of the 1st suit motor vehicle. 9. The trial court did consider the pleadings, evidence adduced and submissions filed and did find that the Appellant had not proved his case and proceeded to dismiss the case 10. Being dissatisfied and aggrieved by the said award the appellants filed their memorandum of Appeal raising four (4) grounds of Appeal, Namely; a. That the Hon. Adjudicator grossly misdirected herself in dismissing the suit despite the evidence that the respondents caused the series of accidents on 17.05.2022. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18629/eng@2025-12-02 2

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b. The Hon Adjudicator erred in fact and in law in disregarding the appellant’s evidence. c. The Hon Adjudicator erred in law and in fact by failing to appreciate the evidence that was placed before her and hence arrived at a decision that was erroneous and against the evidence placed before her d. The Hon Adjudicator erred in law and in fact be exercising her discretion capriciously and not judiciously. C. Analysis and Determination 11. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters v Sunday Post Limited (1968) EA 123 12. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko v Varkey Ouseph AIR 1969 Kerala 316 13. In this Appeal, the Appellants are challenging the trial’s court finding on liability. In Isabella Wanjiru Karangu v . Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142 and Mahendra M Malde v . George M Angira Civil Appeal No. 12 of 1981, it was held that apportionment of blame represents an exercise of a discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle. 14. PW1 also did testify and confirmed that indeed the said accident did occur and blamed the driver of the 3rd suit motor vehicle for causing the said accident by encroaching into the 1st suit motor vehicle lane, and stopping abruptly in a place not designated to pick or drop passengers. The Appellant on his part blamed the driver of the 2nd suit motor vehicle for failing to keep distance, while DW1 also testified that it is the reckless action of the driver of the 3rd suit motor vehicle that directly lead to the said accident, a fact confirmed by PW1. 15. The Appellant filed his supplementary list of documents’ an attached a judgment issued in Nairobi SCCC No E2923 of 2022 ( Samwel Musangi Mwololo v Family Bank Ltd & 3 others ), where he had sued the owner and driver of the 3rd suit motor vehicle and the said suit was also dismissed on the basis that liability had not been established. 16. It is unfortunate that the Appellant opted to litigate in piecemeal and decided to sue the respondent herein as an after though after the first suit had been dismissed, instead of Appealing against the said decision. His actions constitute an abuse of the process of the court as all issues ought to have been pleaded and litigated in the 1st suit filed. Secondly by filing the 1st suit where he laid blame on the drive of the 3rd suit motor vehicle for causing this accident and making sworn averments to that effect, it is not open for the Appellant to plead alternative facts and in the 2nd suit blaming the drive of the 2nd suit motor vehicle for causing the said accident. He wants a second bite to the cherry, which cannot be allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18629/eng@2025-12-02 3

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17. Based on the forgoing, i do find that in the present case, constitutes and abuse of the process of court and also that in light of his pleadings in the first suit and the evidence of PW1 the Appellant has failed to present credible evidence to prove that the accident was as a result of the respondent’s negligence. The trial courts finding on liability, thus cannot be faulted and this Appeal fails. C. Disposition 18. This Appeal has no merit and the same is dismissed with costs to the respondents. 19. The said costs are assessed at Kshs120,000/= all inclusive. 20. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MARSABIT THIS 2ND DAY OF DECEMBER, 2025. FRANCIS RAYOLA OLEL JUDGE In the presence of: N/A……………………………Appellant N/A…………………………Respondent Jarso……………………Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18629/eng@2025-12-02 4

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