Teresia Nandwa v Kenya Transmission Company Limited
The bottom line
#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
#Executive summary
#Key legal issues
#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.
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.
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.
Burden of proof in a negligence action and its allocation between two conflicting, uncorroborated accounts.
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.
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.
The evidentiary duties owed to the court by a pedestrian and by a driver in a road-traffic accident case.
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.
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.
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.
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.
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.
Equal apportionment of liability on scanty, conflicting evidence, and the evidentiary value of a police officer who was not the Investigating Officer.
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.
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.
Consequential relief: quantum, interest and costs flowing from the restored liability finding.
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.
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.
Legal principles established
#- 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
#- 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.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.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.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.
- 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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teresia Nandwa v Kenya Transmission Company Limited", 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.