Ahmed & another (Suing on their own behalf and in their capacity as the administrators of the Estate of the Late Omar Kulala Swalehe) v Jang Xi Youse Construction Group Company Limited & another (Civil Appeal E075 of 2023) [2026] KECA 780 (KLR)
The bottom line
#The Court of Appeal upheld a 50:50 liability split in a fatal Kwale road accident, confirming that second appeals only revisit questions of law.
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 learned Judge erred in law by apportioning liability equally between the parties
- 2.Whether the learned Judge erred in law by directing that each party bears their own costs of the appeal
Key legal issues
#Whether the High Court erred in law in apportioning liability equally between the parties
The appeal on liability fails. The Court, on second appeal, found no legal error in the High Court's re-evaluation of the evidence: PW2's testimony was inconsistent on whether he actually witnessed the accident, and the failure of the investigating officer to testify and the lack of a sketch map left liability unclear, justifying the 50%:50% apportionment.
The Court rehearsed the second-appeal limitation to points of law and held that the High Court properly re-evaluated the evidence. PW2's evidence-in-chief and cross-examination were inconsistent as to whether he saw the accident or merely heard the impact; the dim lighting at 7:30 pm made a conclusive finding difficult. The investigating officer was never called, and the police abstract's maker was not called, diminishing a conclusive finding on blame. The appellants therefore failed to prove that the respondents were wholly liable.
Whether the High Court erred in directing that each party bears their own costs of the appeal
The costs order stands. Although costs ordinarily follow the event, the High Court's discretion was properly exercised: having found both parties equally liable, its direction that each party bears its own costs was reasonable and not a basis for appellate interference.
Counsel for the appellants argued that costs follow the event and that the Judge gave no reasons proportionate to their success. The Court applied Supermarine Handling Services and Rai v Rai: the award of costs is governed by the costs-follow-the-event rule tempered by the judiciously exercised discretion of the court accommodating special circumstances. Since the learned Judge found both parties equally liable, that finding reasonably informed her costs order, and the Court of Appeal found no basis to interfere.
Legal principles established
#- On a second appeal, the Court of Appeal's mandate is restricted to points of law only; it must resist the temptation of delving into matters of fact unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- Costs of any action follow the event unless the court for good reason otherwise orders, and an appellate court will not interfere with a trial court's discretion on costs unless it was exercised unjudicially or on wrong principles.
Court orders
#- 1.The appeal fails and is dismissed in its entirety
- 2.The judgment and decree of the High Court of Kenya at Mombasa (F. Wangari, J.) delivered on 10th March 2023 is upheld
- 3.Each party to bear their costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Civil Appeal No. 234 of 2021
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal lying to the Court of Appeal on matters of law)
Relief refused
#The appellants' appeal against the 50%:50% apportionment of liability
The Court found no fault in the High Court's conclusion that PW2 could not be conclusively classified as an eyewitness and that the appellants had not discharged the burden of proving sole liability of the respondents
Costs of the High Court appeal and of the trial court in favour of the appellants proportionate to their success
The High Court found both parties equally liable, which reasonably informed the direction that each party bears their own costs; the Court of Appeal found no basis to interfere
Costs
Each party to bear their costs of this appeal.
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.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
Hence, the learned Judge's apportionment of liability at 50%, which we hereby afirm.
However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice.
we find that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment and decree of the High Court of Kenya at Mombasa (F. Wangari, J.) delivered on 10th March 2023 be and is hereby upheld.
Considering the protracted inquiry into the unclear circumstances under which the accident in issue occurred; and as none of the parties persuaded the trial or the two appellate courts to find or hold otherwise, we hereby direct that each party bear their costs of this appeal.
Issues in the judgment
#The delivery date in the judgment reads '24TH DAY APRIL OF 2026', which appears to contain a typographical disorder in the date rendering
Ground 4 of the memorandum of appeal refers to 'the learned trial judge' holding that the respondent proved contributory negligence, but the finding of contributory negligence was made by the High Court Judge on first appeal, not the trial magistrate
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed & another (Suing on their own behalf and in their capacity as the administrators of the Estate of the Late Omar Kulala Swalehe) v Jang Xi Youse Construction Group Company Limited & another (Civil Appeal E075 of 2023) [2026] KECA 780 (KLR)", Case Analysis (2026). Second appeal from Mombasa HC Civil Appeal No. 234 of 2021 (arising from Kwale RMCC No. 191 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/780/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.