(Being an appeal from the Judgment of Honourable O. M. Wanyaga Chief Magistrate in Thika Law Courts Civil Suit No. 772 of 2018, delivered on 19th July, 2023)
1. This appeal arises from the judgment and decree in Thika Chief Magistrate’s Civil Suit No. 772 of 2018. In that suit, the Appellant, a minor suing through her grandmother and next friend, Susan Wairimu, instituted proceedings against the Respondent, seeking general and special damages resulting from a road traffic accident in which the Appellant sustained bodily injuries.
2. The Respondent was sued in his capacity as the registered owner of motor vehicle registration number KAW 514M. It was alleged that the motor vehicle was carelessly and negligently driven, that it knocked down the Appellant and causing her serious injuries.
3. After hearing the parties, the trial court entered judgment and apportioned liability equally at 50:50. The court awarded general damages amounting to Kshs. 700,000/= and special damages of Kshs. 13,300/=, both subject to 50 per cent contributory negligence, resulting in a net award of Kshs. 356,650/=. The judgment also included interest at court rates from the date of judgment until full payment, along with 50 per cent of the costs of the suit.
4. Dissatisfied with the judgment, the Appellant filed this appeal, raising the following grounds produced verbatim:
a. THAT the Learned erred in law and in fact by apportioning liability on the Appellant herein notwithstanding the fact that the Appellant herein was a minor who had sued through her grandmother and next friend one Susan Wairimu.
b. THAT the Learned Magistrate erred in fact and law by failing to appreciate that the Appellant was a pedestrian and hence she could not have contributed to the said accident.
c. THAT Learned Magistrate erred in law and fact by disregarding the next friend’s testimony when the same was not rebutted as the Respondent did not avail any witness.
5. The court directed that the appeal be argued by way of written submissions. While the Appellant filed her submissions, the Respondent’s submissions were not on record or available through the court’s filing system at the time of preparing this judgment.
Appellant’s Submissions
6. The Appellant’s submissions are dated 13th August 2024. Despite listing three grounds of appeal, the Appellant only submitted on grounds one and three, effectively abandoning ground two.
7. Relying on the Court of Appeal decisions in Butt v Khan [1978] eKLR and Tayab v Kinanu [1983] eKLR, the Appellant submitted that a child lacks the road sense of adults and can only be held liable where they are clearly blameworthy. She referenced her birth certificate, which indicated she was approximately 5 years and 4 months old at the time of the accident. She argued that this fact should have exempted her from contributory negligence, and that the trial court’s failure to consider it led to an incorrect finding of liability.
8. The Appellant further submitted that at the time of the accident, she was in the company of her grandmother, who tragically died in the incident. This fact was corroborated by PW1 and PW2 a police officer who produced a police abstract confirming that Teresia Njoki Kabocha who accompanied the minor sustained fatal injuries.
9. The Appellant asserted that the trial court failed to give proper effect to Section 112 of the Evidence Act, which places an evidential burden on the Respondent to rebut the presumption of negligence on the part of the driver of the motor vehicle. She relied on Rahab Micere Murage (Suing as Representative of the Estate of Esther Wakiini Murage) v Attorney General & 2 Others [2012] eKLR, arguing that the Respondent might have withheld evidence to frustrate the appellant case.
10. In conclusion, the Appellant urges the court to allow the appeal and enter judgment in her favour by finding the respondent 100 per cent liable for the accident.
11. As a first appellate court, I am guided by the principle established in Selle v. Associated Motor Boat Co. Ltd. [1965] E.A. 123, which holds that an appellate court is required to re-evaluate and re-assess the evidence presented before the trial court, and to arrive at its own independent conclusions. This duty includes a thorough scrutiny of both the factual and legal findings, while bearing in mind that the trial court had the advantage of observing the witnesses and assessing their demeanor firsthand.
12. Having considered the entire record of appeal, the grounds of appeal, the written submissions, and the authorities cited, this court finds that the central issue for determination is whether the trial court properly assessed and apportioned liability.
13. The burden of proof as per Section 107 (1), 109 and 112 of the Evidence Act, Cap 80 Laws of Kenya is outlines as;
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
14. In this appeal, the key issue for determination is who bears responsibility for the accident. The scope and application of the legal principles governing negligence are well established. In Nandwa v Kenya Kazi Ltd [1988] KLR 488 and Regina Wangechi v Eldoret Express Co. Ltd [2008] eKLR, the courts held that:
““In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of the trial there is proved a set of facts which raises a prima facie case inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides same answer adequate to displace that inference.”
15. In light of the legal principles discussed above, it is now necessary to examine the evidence presented before the trial court.
16. During the trial, the Appellant, through her friend, PW1 Susan Wairimu, adopted her witness statement. On cross-examination she testified that she did not witness the accident firsthand as the child was in the care of Teresiah Njoki (now deceased) at the time. She explained that she was informed about the accident by her aunt and noted that there is a separate suit involving Teresiah in which the Respondent has also been sued. PW2, who appeared on behalf of the Investigating Officer, confirmed through a police abstract that the accident had indeed occurred, although the matter was still under investigation. He testified that the police file and the occurrence book were not available for review. PW3, a private medical practitioner, confirmed the injuries sustained by the minor.
17. The Respondent, despite closing his case without calling any witnesses, alleged in his defence that the accident was caused solely or substantially by the Appellant's own negligence. The burden of proof remained squarely on the Appellant to establish her case on a balance of probabilities. This principle was reaffirmed by the Court of Appeal in Daniel Toroitich Arap Moi v. Mwangi Stephen Muriithi & Another [2014] eKLR, which held:
“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”
18. Upon analyzing the evidence presented, the trial magistrate held that liability be apportioned equally. In her judgment, the court observed:
“The court has considered the evidence by the Plaintiff as well as her submissions. This being a civil suit, the standard of proof is on a balance of probabilities. No eyewitness testified in this case. Having failed to call a witness, any averments in the defence attributing the occurrence of the accident to the Plaintiff remain unproven. The police abstract indicates that investigations are still pending. The Defendant did not call the driver to explain the circumstances surrounding the accident. Under these circumstances, liability for the accident is apportioned at 50:50.”
19. A review of the record confirms that the accident occurred on 16th August 2014 and involved the Respondent’s motor vehicle. The Appellant’s testimony is supported by a police officer who, through a police abstract, confirmed that the accident took place and involved the parties in this case as well as a deceased adult. Nonetheless, the officer acknowledged that the investigation was incomplete and did not provide corroborating documentation, to clarified who was to blame or the outcome of the investigation.
20. This brings the court to the second critical issue: whether there is evidence of contributory negligence on the part of the Appellant. The Appellant, according to the birth certificate was five years, the Respondent did not dispute this fact. Accordingly, the court must assess whether a child of five years possesses sufficient capacity to understand their actions and therefore be held liable for contributory negligence. It is also undisputed that the minor was under the supervision of an adult, now deceased, at the time of the accident, and that a separate claim involving the Respondent and the deceased adult had been filed. In view of the fact that the minor is suing through a next friend, this court must determine whether the minor can lawfully bear any contributory responsibility under these circumstances.
21. The legal position in cases involving children of tender years was articulated by the Court of Appeal in Rahima Tayab & Others v. Anna Mary Kinanu, Civil Appeal No. 29 of 1982 [1983] KLR 114; 1 KAR 90, where it was held:
“The practice of the court ought to be that normally a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, insofar as a young person is concerned, only upon clear proof that at the time of the doing of the act or making the omission he had the capacity to know that he ought not to do the act or make the omission…The foregoing decision does not say that a person under the age of ten years cannot be guilty of contributory negligence, but that such a person cannot normally be guilty of such negligence. In dealing with contributory negligence on the part of a young boy, the age of the boy and the ability to understand and appreciate the dangers involved have to be taken into consideration. A Judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders and therefore cannot be found negligent unless he or she is blameworthy.”
22. In reaching its decision, the Court cited Bashir Ahmed Butt v. Uwais Ahmed Khan [1982–88] 1 KAR 1; [1981] KLR 349, where Law J.A. stated:
“A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety, and a finding of contributory negligence should only be made if blame can be attached to the child... Clearly each case must depend on its peculiar circumstances.
23. Similarly, in Nkudate v. Touring & Sporting Cars Ltd and Another [1978] KLR 199; [1976–80] 1 KLR 1333, the Court held:
“The determining factor in deciding whether or not a child below the age of ten years can be guilty of contributory negligence is whether the child is mature enough to be able to take precautions for his or her safety, bearing in mind that young children do not usually have sufficient experience in these matters.”
24. Upon reviewing the trial court’s proceedings and judgment, it is evident that the learned magistrate did not adequately consider the age of the Appellant and whether, in the circumstances, she could reasonably be found to have contributed to or caused the accident. The law imposes a heightened duty of care on drivers when children of tender years are involved, effectively shifting the burden onto the driver to prove that the child was of an age and capacity to take reasonable safety precautions. In this case, the appellant was five years as at the time of the accident, she did not have the ability to understand and appreciate the dangers involved which should have been taken into consideration, while the Respondent failed to discharge that burden or to rebut the Appellant’s claims.
25. In view of the above authorities and the unchallenged facts, it is evident that the driver owed a heightened duty of care given the minor's presence. The allegations of negligence against the minor cannot hold given the minor’s tender age. The trial magistrate failed to properly weigh the age and vulnerability of the Appellant. Accordingly, I find that the apportionment of liability was erroneous. In the circumstance the Respondent ought to have been held wholly liable for the accident.
26. Since the issue of liability was the sole issue raised in the appeal, I find that the appeal is meritorious and make the following determination:
a. The Respondent is found 100% liable for the accident.
b. The trial court award of damages as follows Kshs 713, 300/=; General damages of Kshs 700, 000/= and Special damages of Kshs 13, 300/=is upheld;
c. The trial court award of Interest on (b) above at court rates from the date of the judgment of the lower court until payment in full is upheld
d. Costs of the appeal be awarded to the Appellant.
Orders Accordingly
.”
1. This appeal arises from the judgment and decree in Thika Chief Magistrate’s Civil Suit No. 772 of 2018. In that suit, the Appellant, a minor suing through her grandmother and next friend, Susan Wairimu, instituted proceedings against the Respondent, seeking general and special damages resulting from a road traffic accident in which the Appellant sustained bodily injuries.
2. The Respondent was sued in his capacity as the registered owner of motor vehicle registration number KAW 514M. It was alleged that the motor vehicle was carelessly and negligently driven, that it knocked down the Appellant and causing her serious injuries.
3. After hearing the parties, the trial court entered judgment and apportioned liability equally at 50:50. The court awarded general damages amounting to Kshs. 700,000/= and special damages of Kshs. 13,300/=, both subject to 50 per cent contributory negligence, resulting in a net award of Kshs. 356,650/=. The judgment also included interest at court rates from the date of judgment until full payment, along with 50 per cent of the costs of the suit.
4. Dissatisfied with the judgment, the Appellant filed this appeal, raising the following grounds produced verbatim:
a. THAT the Learned erred in law and in fact by apportioning liability on the Appellant herein notwithstanding the fact that the Appellant herein was a minor who had sued through her grandmother and next friend one Susan Wairimu.
b. THAT the Learned Magistrate erred in fact and law by failing to appreciate that the Appellant was a pedestrian and hence she could not have contributed to the said accident.
c. THAT Learned Magistrate erred in law and fact by disregarding the next friend’s testimony when the same was not rebutted as the Respondent did not avail any witness.
5. The court directed that the appeal be argued by way of written submissions. While the Appellant filed her submissions, the Respondent’s submissions were not on record or available through the court’s filing system at the time of preparing this judgment.
Appellant’s Submissions
6. The Appellant’s submissions are dated 13th August 2024. Despite listing three grounds of appeal, the Appellant only submitted on grounds one and three, effectively abandoning ground two.
7. Relying on the Court of Appeal decisions in Butt v Khan [1978] eKLR and Tayab v Kinanu [1983] eKLR, the Appellant submitted that a child lacks the road sense of adults and can only be held liable where they are clearly blameworthy. She referenced her birth certificate, which indicated she was approximately 5 years and 4 months old at the time of the accident. She argued that this fact should have exempted her from contributory negligence, and that the trial court’s failure to consider it led to an incorrect finding of liability.
8. The Appellant further submitted that at the time of the accident, she was in the company of her grandmother, who tragically died in the incident. This fact was corroborated by PW1 and PW2 a police officer who produced a police abstract confirming that Teresia Njoki Kabocha who accompanied the minor sustained fatal injuries.
9. The Appellant asserted that the trial court failed to give proper effect to Section 112 of the Evidence Act, which places an evidential burden on the Respondent to rebut the presumption of negligence on the part of the driver of the motor vehicle. She relied on Rahab Micere Murage (Suing as Representative of the Estate of Esther Wakiini Murage) v Attorney General & 2 Others [2012] eKLR, arguing that the Respondent might have withheld evidence to frustrate the appellant case.
10. In conclusion, the Appellant urges the court to allow the appeal and enter judgment in her favour by finding the respondent 100 per cent liable for the accident.
11. As a first appellate court, I am guided by the principle established in Selle v. Associated Motor Boat Co. Ltd. [1965] E.A. 123, which holds that an appellate court is required to re-evaluate and re-assess the evidence presented before the trial court, and to arrive at its own independent conclusions. This duty includes a thorough scrutiny of both the factual and legal findings, while bearing in mind that the trial court had the advantage of observing the witnesses and assessing their demeanor firsthand.
12. Having considered the entire record of appeal, the grounds of appeal, the written submissions, and the authorities cited, this court finds that the central issue for determination is whether the trial court properly assessed and apportioned liability.
13. The burden of proof as per Section 107 (1), 109 and 112 of the Evidence Act, Cap 80 Laws of Kenya is outlines as;
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
14. In this appeal, the key issue for determination is who bears responsibility for the accident. The scope and application of the legal principles governing negligence are well established. In Nandwa v Kenya Kazi Ltd [1988] KLR 488 and Regina Wangechi v Eldoret Express Co. Ltd [2008] eKLR, the courts held that:
““In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of the trial there is proved a set of facts which raises a prima facie case inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides same answer adequate to displace that inference.”
15. In light of the legal principles discussed above, it is now necessary to examine the evidence presented before the trial court.
16. During the trial, the Appellant, through her friend, PW1 Susan Wairimu, adopted her witness statement. On cross-examination she testified that she did not witness the accident firsthand as the child was in the care of Teresiah Njoki (now deceased) at the time. She explained that she was informed about the accident by her aunt and noted that there is a separate suit involving Teresiah in which the Respondent has also been sued. PW2, who appeared on behalf of the Investigating Officer, confirmed through a police abstract that the accident had indeed occurred, although the matter was still under investigation. He testified that the police file and the occurrence book were not available for review. PW3, a private medical practitioner, confirmed the injuries sustained by the minor.
17. The Respondent, despite closing his case without calling any witnesses, alleged in his defence that the accident was caused solely or substantially by the Appellant's own negligence. The burden of proof remained squarely on the Appellant to establish her case on a balance of probabilities. This principle was reaffirmed by the Court of Appeal in Daniel Toroitich Arap Moi v. Mwangi Stephen Muriithi & Another [2014] eKLR, which held:
“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”
18. Upon analyzing the evidence presented, the trial magistrate held that liability be apportioned equally. In her judgment, the court observed:
“The court has considered the evidence by the Plaintiff as well as her submissions. This being a civil suit, the standard of proof is on a balance of probabilities. No eyewitness testified in this case. Having failed to call a witness, any averments in the defence attributing the occurrence of the accident to the Plaintiff remain unproven. The police abstract indicates that investigations are still pending. The Defendant did not call the driver to explain the circumstances surrounding the accident. Under these circumstances, liability for the accident is apportioned at 50:50.”
19. A review of the record confirms that the accident occurred on 16th August 2014 and involved the Respondent’s motor vehicle. The Appellant’s testimony is supported by a police officer who, through a police abstract, confirmed that the accident took place and involved the parties in this case as well as a deceased adult. Nonetheless, the officer acknowledged that the investigation was incomplete and did not provide corroborating documentation, to clarified who was to blame or the outcome of the investigation.
20. This brings the court to the second critical issue: whether there is evidence of contributory negligence on the part of the Appellant. The Appellant, according to the birth certificate was five years, the Respondent did not dispute this fact. Accordingly, the court must assess whether a child of five years possesses sufficient capacity to understand their actions and therefore be held liable for contributory negligence. It is also undisputed that the minor was under the supervision of an adult, now deceased, at the time of the accident, and that a separate claim involving the Respondent and the deceased adult had been filed. In view of the fact that the minor is suing through a next friend, this court must determine whether the minor can lawfully bear any contributory responsibility under these circumstances.
21. The legal position in cases involving children of tender years was articulated by the Court of Appeal in Rahima Tayab & Others v. Anna Mary Kinanu, Civil Appeal No. 29 of 1982 [1983] KLR 114; 1 KAR 90, where it was held:
“The practice of the court ought to be that normally a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, insofar as a young person is concerned, only upon clear proof that at the time of the doing of the act or making the omission he had the capacity to know that he ought not to do the act or make the omission…The foregoing decision does not say that a person under the age of ten years cannot be guilty of contributory negligence, but that such a person cannot normally be guilty of such negligence. In dealing with contributory negligence on the part of a young boy, the age of the boy and the ability to understand and appreciate the dangers involved have to be taken into consideration. A Judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders and therefore cannot be found negligent unless he or she is blameworthy.”
22. In reaching its decision, the Court cited Bashir Ahmed Butt v. Uwais Ahmed Khan [1982–88] 1 KAR 1; [1981] KLR 349, where Law J.A. stated:
“A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety, and a finding of contributory negligence should only be made if blame can be attached to the child... Clearly each case must depend on its peculiar circumstances.
23. Similarly, in Nkudate v. Touring & Sporting Cars Ltd and Another [1978] KLR 199; [1976–80] 1 KLR 1333, the Court held:
“The determining factor in deciding whether or not a child below the age of ten years can be guilty of contributory negligence is whether the child is mature enough to be able to take precautions for his or her safety, bearing in mind that young children do not usually have sufficient experience in these matters.”
24. Upon reviewing the trial court’s proceedings and judgment, it is evident that the learned magistrate did not adequately consider the age of the Appellant and whether, in the circumstances, she could reasonably be found to have contributed to or caused the accident. The law imposes a heightened duty of care on drivers when children of tender years are involved, effectively shifting the burden onto the driver to prove that the child was of an age and capacity to take reasonable safety precautions. In this case, the appellant was five years as at the time of the accident, she did not have the ability to understand and appreciate the dangers involved which should have been taken into consideration, while the Respondent failed to discharge that burden or to rebut the Appellant’s claims.
25. In view of the above authorities and the unchallenged facts, it is evident that the driver owed a heightened duty of care given the minor's presence. The allegations of negligence against the minor cannot hold given the minor’s tender age. The trial magistrate failed to properly weigh the age and vulnerability of the Appellant. Accordingly, I find that the apportionment of liability was erroneous. In the circumstance the Respondent ought to have been held wholly liable for the accident.
26. Since the issue of liability was the sole issue raised in the appeal, I find that the appeal is meritorious and make the following determination:
a. The Respondent is found 100% liable for the accident.
b. The trial court award of damages as follows Kshs 713, 300/=; General damages of Kshs 700, 000/= and Special damages of Kshs 13, 300/=is upheld;
c. The trial court award of Interest on (b) above at court rates from the date of the judgment of the lower court until payment in full is upheld
d. Costs of the appeal be awarded to the Appellant.
Orders Accordingly
.”