REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E162 OF 2023
(Coram: Andayi W. F., J.)
ABEL TUNJE PEMBE AND HALAKO KAZUNGU PEMBE
(suing as the legal representatives of the estate of
BAKARI MWAMBOKO…………………………….............................................APPELLANTS
VERSUS
FRANCIS KARABU……………................................................................…1 ST RESPONDENT
AHMAN KENGA CHOME.........................................................................]2 ND RESPONDENT
(Being an Appeal from the judgment and decree of Hon. Irene Thamara Resident Magistrate delivered on 16 th October 2023 at Malindi Magistrates Court Civil Case No. E076 of 2021)
JUDGMENT
1. This appeal was filed through a memorandum dated 10 th November 2023. The appeal challenges the judgment of the trial court delivered on 16 th October 2023 on the trial court’s findings on liability only.
2. The appellants, as the legal representatives of the estate of Bakari Mwamboko (deceased) filed suit through a plaint dated 19 th March 2021 against the respondents for compensation in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
3. It was the appellants’ case before the trial court that the deceased met his death as a result of negligence on the part of the driver of the respondents’ motor vehicle registration number KBZ 123L FH where the 1 st respondent was the owner and the 2 nd respondent the driver of the vehicle at the material time. The appellants pleaded in the plaint that the respondents’ said vehicle lost control while being driven along the Mombasa-Malindi road at Jabreen area and rammed into the deceased who was lawfully walking along the said road and thereby caused him fatal injuries. The appellants also pleaded res ipsa loquitor .
4. It was the 1 st respondent’s testimony that the deceased aged 56 years was his brother. That he was working as a loader with a cement company earning KShs 13,572.90 per month. He was unmarried and he was supporting his mother and two younger siblings one aged 17 years and the other aged 19 years at the time.
5. The respondents filed a joint statement of defence dated 26 th July 2021. They denied the appellants’ claim in toto and put him to strict proof. They further pleaded negligence and contribution on the part of the deceased pleading that the deceased darted onto and across the highway without checking if the road was clear.
6. At the hearing, evidence for the appellants was given by PW 1, PC Selina Manasseh of Malindi police station who visited the scene and assisted in the investigations and PW 2, Abel Tunje Pembe, the 1 st appellant and brother of the deceased.
7. The evidence for the respondents was given by Athman Kenga Chome, the 2 nd respondent and driver of the accident vehicle.
8. PW 1 testified that she visited the scene shortly after the accident in company of the investigating officer PC Siyui, who had since proceeded on transfer, and the Base Commander. PW 1 gave evidence that when they arrived at the scene the body of the deceased and the vehicle were there. The rest of the evidence was of what they were informed of how the accident had occurred. She did not disclose who had given them that information, alleging that the deceased and another person were boarding the vehicle while it was in motion. That the first person successfully boarded but the deceased slipped and fell and was run over in his attempt to board. PW 1 did not produce any sketch maps, drawings, measurements and legends of the scene.
9. PW 2 had no evidence of how the accident occurred. He said that he was told about it but also did not disclose who informed him of the accident.
10. DW 1, Athman Kenga Chome, the driver of the vehicle adopted his witness statement dated 13 th May 2022 as his evidence in chief. His evidence was that he was in the vehicle alone travelling to Lamu from Mombasa transporting cement. In his statement he wrote that he was in Malindi town at around 7.30 p.m. and traffic was slow. The road was clear and well lit. He took the roundabout and a few metres ahead he heard people calling and shouting at him to stop. He was informed that someone had hitched onto the backside of the lorry but slipped and fallen off and was run over by the tyres of the lorry. He stopped the vehicle and traffic police officers came to the scene. He said the person was not known to him and neither did he know where he came from and at what point he tried to climb onto the lorry as he never saw him in the rear-view mirror.
11. In cross-examination, DW 1 said that he was informed that he had hit the deceased with the vehicle’s left rear tyre. In re-examination he said that he stepped on the deceased using the motor vehicle.
12. After trial the learned trial magistrate found on the issue of liability that the same had not been proved against the respondents and dismissed the suit with costs.
13. The appellants were dissatisfied with that decision and now appeal to this court on the grounds set out in the memorandum of appeal. There are eight grounds of appeal which upon consideration can be summed into one, that the trial court failed to give a balanced assessment of the evidence tendered by the parties at the trial and instead leaned towards the respondents’ evidence and thereby arrived at an erroneous decision on liability.
14. The appeal was disposed of on the written submissions of the parties. The same are considered in the analysis that follows.
15. I have considered the grounds of appeal, the record of appeal and the submissions by learned counsels for the parties. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
16. The learned trial magistrate found that no doubt the accident occurred and the deceased died as a result thereof as supported by the evidence for both the appellants and the respondents but however, the appellants had not proved negligence upon the respondents.
17. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
18. This Court will interfere where the finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (see the case of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR) ).
19. Learned counsel for the appellant submits that contrary to the learned magistrate’s finding, there was sufficient evidence to find the respondents wholly liable for the accident for reasons that evidence in the form of a police abstract was that the driver of the vehicle was to blame for the accident and this was confirmed by PW 1 in her evidence. Besides, the driver as DW 1 confirmed certain facts in his testimony which supported the appellants’ case which were that the vehicle did indeed ram into the deceased occasioning him fatal injuries.
20. Although learned counsel for the appellants has strongly insisted, stating several times and highlighting in bold in the submissions that the police abstract showed that the driver of the vehicle was charged with the offence of causing death by dangerous driving, that submission that the driver was charged is not true either from the police abstract or from the witness testimonies. What the police abstract indicates is that it was intended to prefer charges against Athman Kenga Chome, who was the driver of the vehicle for the offence of causing death by careless driving. There is however no traffic charge registration number or the court case file number and the respective spaces in the police abstract bear a dash sign.
21. However, what is true is that the police blamed the driver of the accident vehicle for the accident as confirmed in the entry in the police abstract and the evidence of PW 1. However, there is no evidence that the driver was eventually charged for the offence. DW 1 said in his testimony that indeed police intended to charge him with the offence but he had never been charged for the offence and that evidence was not challenged. However, that in itself does not mean that there could be no evidence pointing at his culpability for the accident.
22. Learned counsel relies on the case of Mwaka Chije Barisa v Abdul Hakim Abdala & another [2018] KEHC 1938 (KLR) for the holding that the court could rely on the entry in the police abstract to show that the driver had been blamed for the accident which then was prima facie evidence that he was culpable. The High Court, A. Mbogholi Msagha (as he then was) held that the police accident abstract was sufficient evidence in the case to establish liability on the part of the driver of the vehicle. The court held further that the finding by the trial magistrate that the case had not been proved was against the evidence tendered by the appellant.
23. However, in order to appreciate the full import of those findings, it must be appreciated that in that case the driver or respondent in the appeal did not tender any evidence at trial, unlike in the present case where the driver testified. Here, the scales of justice must determine which evidence weighs more than the other unlike in the cited case where the scales tipped in favour of the appellant for the reason that the respondents offered no evidence at all. This also explains why the case of Esther Nduta Mwangi & Another v. Hussein Dairy Transporters Ltd Machakos HCCC No. 46 of 2007 (UR) for the holding that upon pleading the doctrine of res ipsa loquitor and producing the police abstract in the absence of any other evidence, a prima facie case had been proved against the respondents is not obviously helpful to the appellant. The defining issue in those cases is that there was no other evidence besides the police abstract. In the present case, the driver of the accident vehicle appeared and testified. The issue then became what weight was to be given to the evidence tendered by each party.
24. The respondents on their part submit that the evidence tendered by the appellants at trial was contradictory and at variance. He cites various cases in support of that submission for the position that parties are bound by their pleadings and any evidence that is at variance with the pleadings must be rejected. For instance in the case of Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR) the Court held as follows:
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”
25. The respondents therefore submit that there was contradiction between the pleadings by the appellants and the evidence tendered in support of the case meaning the same could not and was not proved. They submit that they support the decision of the trial court for its finding that the deceased was the author of his own misfortune because he climbed onto the back of the vehicle by his own will, without care or alerting the driver and therefore the driver could not have noticed his presence there. They support the trial court’s reliance on the case of Phyllis Wairimu Macharia v Kiru Tea Factory [2016] KEHC 7259 (KLR) . The facts of that case mirror the present one but are not quite applicable for the reason that in that case, there was eye-witness testimony of how the accident occurred and the driver of the accident vehicle also testified. The trial court weighed the competing evidence and found that the deceased and the respondent’s driver were equally liable for the accident and consequently apportioned liability in the ratio of 50:50. The High Court upheld that finding on appeal but only for the reason that there was no cross-appeal. The High Court expressed itself thus:
“When I consider the driver’s and the eye witness’ accounts against the forgoing background, it appears to me that it is more probable than not that the deceased may have fallen and crashed after he attempted to climb on a moving vehicle. I have reached this conclusion because if it was true that the driver stopped to carry the deceased (albeit without the authority of the respondent) as the eye witness suggested, I do not see why he could not accommodate him in the cabin which had sufficient space for two passengers.
Viewed differently, I cannot see why the deceased should have attempted to travel at the back of an open lorry which was designed to carry tea leaves and not passengers. Irrespective of the circumstances under which the accident occurred, it was always going to be risky if not illegal for the deceased to travel at the back of a lorry which by design did not cater for passenger safety.
That the deceased may have been tempted to climb a moving vehicle is also apparent from the eyewitness’ testimony that the vehicle was “not moving very fast” and that “it was moderate”. This testimony appears to be consistent with the appellant’s pleadings that the deceased fell when he either lost grip or could not properly grasp a particular part of the vehicle. I suppose that a simple fall from a stationery vehicle would certainly not have such devastating consequences.
In the face of this evidence, I am inclined to think that at the very least, it was not established on a balance of probabilities that the driver of the ill-fated lorry was solely responsible or even contributed, by as much margin as attributed to him by the learned magistrate, to the occurrence of the accident from which the deceased died. However, since the respondent did not cross-appeal, I have no reason to disturb the learned magistrate’s finding on liability...”
26. I have quoted the decision extensively to show that there was eye witness testimony of how the accident in that case occurred unlike in the present case. I have found above that the testimony by PW 1 that the deceased was attempting the board the vehicle was hearsay and of no probative value. It is even worse that the police did not find it important to even take down the details of the other person who had allegedly boarded the vehicle first and was being followed by the deceased.
27. Learned counsel for the respondents submits citing section 107 and 108 of the Evidence Act (Cap. 80) Laws of Kenya that the appellants did not discharge the burden of proof as required by law. Learned counsel has submitted several authorities on that issue.
28. I agree with the submission by learned counsel for the respondents that the onus was on the appellants to prove their case and it never shifted to the respondents. That is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya , which provides:
“107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
29. In this case, the appellants pleaded in the plaint and PW 2 testified in court that he wished the court to find in their favour that the respondents had through negligence caused the death of the deceased through the road traffic accident and therefore were liable to pay the estate of the deceased and the dependents damages.
30. The appellants pleaded that the deceased was lawfully walking off the road when the accident vehicle lost control and rammed into him and therefore attributed negligence on the part of the driver. The appellant’s evidence on that pleading was tendered by PW 1 who said that she went to the scene after the accident and found the vehicle and the deceased’s body there. There was also the evidence in the police abstract that the driver had been blamed for the accident and further from the driver himself that he was waved down and alerted that he had run over somebody. According to him indeed the left rear tyres of the vehicle had run over the deceased. It is this evidence that the trial court was to consider in order to make her decision. I however note that the learned trial magistrate appeared to rely on PW 1’s evidence that the deceased was hiking a lift from the vehicle and that of the driver, DW 1 that the deceased had hitch hiked on the vehicle at the backside. I have found that the testimony by PW 1 that the deceased was attempting to board the vehicle was hearsay and unreliable. That leaves the evidence of the driver to be considered.
31. Now, looking at the pleadings by the respondents in their defence, they alleged that the deceased darted onto and across the highway without checking if the road was clear. Clearly, the evidence tendered by DW 1 did not support that pleading at all. In the respondent’s own submissions, as held in the cited case of Stephen Mutinda Mule (supra) by the Court of Appeal agreed with the Nigerian case of Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc SC 91/2002, for the holding that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.
32. Since the evidence of the respondents was not in line with their pleadings, the same had to be discarded with respect to the defence pleaded by the respondents. For that reason, the learned trial magistrate ought not to have considered it at all.
33. But, the learned trial magistrate in evaluating the evidence stated as follows:
“ The plaintiffs did not discharge their burden to prove that the deceased was ran over by the motor vehicle. PW 1 and DW 1’s evidence leads to the conclusion that the deceased was the author of his misfortunes. He climbed onto the back of the vehicle by his own will. DW 1 cannot be faulted for not looking at the rear of the motor vehicle to notice if there were unauthorized persons who had climbed onto the motor vehicle . DW 1 running over the deceased did not mean that he was negligent. DW 1 was not anticipating that the deceased was to get onto the motor vehicle from whichever side. The deceased had a duty to ensure his own safety and avoid climbing onto or boarding motor vehicles without care or alerting the driver.”
34. The first issue to notice from this excerpt of the trial court’s judgment is that the learned magistrate started by stating that the appellants had had not discharged the burden to prove that the deceased was run over by the motor vehicle. That statement means that there was no proof that the deceased met his death by being run over by the respondents’ motor vehicle. That was an erroneous finding because there was no dispute on that issue and further the evidence by PW 1 and DW 1 showed that the deceased was run over by the respondents’ motor vehicle.
35. In spite of that finding the learned magistrate went ahead to appreciate that indeed the deceased had been run over by the respondents’ motor vehicle then went further to hold that he was to blame for the accident because he allegedly was boarding the vehicle from behind without alerting the driver. Now how did the learned magistrate arrive at that conclusion that the deceased was boarding the vehicle from behind? None of the witnesses who testified tendered such evidence.
36. I have found above that the evidence of the driver was not reliable with respect to the defence tendered. In spite of that, the driver’s evidence seemed to support the appellants’ case right from the pleadings to the evidence offered at the trial. The appellants’ pleaded that the deceased was walking along the road when the respondents’ vehicle lost control and rammed into him thereby causing him fatal injuries. PW 1 testified that when they arrived at the scene, the body of the deceased was lying behind the stationary vehicle on the left side. He had been run over by the left tyre. He reiterated the same in cross-examination and then said that the driver would have controlled the motor vehicle using the side mirror (sic). The driver himself testified that he was told that he had run over the deceased with the vehicle’s left rear tyre. He was present at the scene and he did not dispute that what he had been told was correct.
37. From this evidence it is apparent that the appellant’s pleadings that the driver failed to control the vehicle were supported by the evidence of PW 1 and that of the driver because what else would explain why the vehicle had run over the deceased? The fact that there was a body lying on the left side of the road behind the vehicle supports the pleading that the deceased must have been on the left side of the road at the time of the accident.
38. The driver testified that the he had just negotiated a roundabout when he was alerted that the vehicle had hit someone using the rear left tyre. That was his evidence in chief. He did not deny that indeed the vehicle had hit the deceased with the rear left tyre. In cross-examination he conceded that he stepped on the deceased using the vehicle. He also said in his written statement that the road was clear and well lit. The question is, where could the deceased have suddenly emerged and get run over by the rear left tyre of the vehicle? With the evidence that the deceased was run over by the rear left tyre of the vehicle, the plausible explanation of what happened must be that he was a pedestrian on the left side of the vehicle when he was run over.
39. The learned magistrate thought that the deceased was a hitch hiker but there was no evidence at all to support that finding. She appears to have relied on the driver’s assertion that when he stopped the vehicle he was informed that someone who had hitch hiked onto the back side of the lorry had slipped and fallen off and unfortunately got run over by the left handside tyres of the lorry. But for himself, he said that he did not know where the person climbed or where he came from. That means the driver had no evidence that the deceased had hitch hiked on the vehicle since whoever told him that, was not a witness in the matter.
40. In sum therefore, the appellants’ evidence was in tandem with their pleading that the deceased was hit by the vehicle’s rear left tyre.
41. Section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened . It says :
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
42. In this case, the court is faced with the fact that an accident did occur on the road. Proper human conduct dictates that a vehicle when properly driven on the road will not run over pedestrians without proper explanation. In the case of Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] eKLR the Court of Appeal said thus:
“Indeed, from the averments in the plaint and from the evidence of Ruth Kendi the doctrine of Res Ipsa Loquitur applied in this case and the appellant did not discharge the burden of showing that the accident occurred without the negligence of its driver. Buses, when properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation.
43. In this case, there is no explanation forthcoming from the driver of the vehicle of how it ran over the deceased who was a pedestrian.
44. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1 st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
45. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
46. Consequently, guided by this decision, I must depart from the finding of the learned trial magistrate that there was no proof of negligence on the part of the driver of the vehicle. The learned trial magistrate relied on what she thought was evidence of how the accident occurred when in fact it was not.
47. I find that it is most probable that while the lorry was negotiating the roundabout the vehicle’s rear body part extended towards the reach of the deceased who was on the road at the time and the rear left tyre ran over him. It may be true that the driver may not have seen the impact but his own evidence that the road was clear and well lit means he failed to take hid of the presence of other people on the road at the time so as to steer the vehicle c
[...truncated]
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E162 OF 2023
(Coram: Andayi W. F., J.)
ABEL TUNJE PEMBE AND HALAKO KAZUNGU PEMBE
(suing as the legal representatives of the estate of
BAKARI MWAMBOKO…………………………….............................................APPELLANTS
VERSUS
FRANCIS KARABU……………................................................................…1 ST RESPONDENT
AHMAN KENGA CHOME.........................................................................]2 ND RESPONDENT
(Being an Appeal from the judgment and decree of Hon. Irene Thamara Resident Magistrate delivered on 16 th October 2023 at Malindi Magistrates Court Civil Case No. E076 of 2021)
JUDGMENT
1. This appeal was filed through a memorandum dated 10 th November 2023. The appeal challenges the judgment of the trial court delivered on 16 th October 2023 on the trial court’s findings on liability only.
2. The appellants, as the legal representatives of the estate of Bakari Mwamboko (deceased) filed suit through a plaint dated 19 th March 2021 against the respondents for compensation in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.
3. It was the appellants’ case before the trial court that the deceased met his death as a result of negligence on the part of the driver of the respondents’ motor vehicle registration number KBZ 123L FH where the 1 st respondent was the owner and the 2 nd respondent the driver of the vehicle at the material time. The appellants pleaded in the plaint that the respondents’ said vehicle lost control while being driven along the Mombasa-Malindi road at Jabreen area and rammed into the deceased who was lawfully walking along the said road and thereby caused him fatal injuries. The appellants also pleaded res ipsa loquitor .
4. It was the 1 st respondent’s testimony that the deceased aged 56 years was his brother. That he was working as a loader with a cement company earning KShs 13,572.90 per month. He was unmarried and he was supporting his mother and two younger siblings one aged 17 years and the other aged 19 years at the time.
5. The respondents filed a joint statement of defence dated 26 th July 2021. They denied the appellants’ claim in toto and put him to strict proof. They further pleaded negligence and contribution on the part of the deceased pleading that the deceased darted onto and across the highway without checking if the road was clear.
6. At the hearing, evidence for the appellants was given by PW 1, PC Selina Manasseh of Malindi police station who visited the scene and assisted in the investigations and PW 2, Abel Tunje Pembe, the 1 st appellant and brother of the deceased.
7. The evidence for the respondents was given by Athman Kenga Chome, the 2 nd respondent and driver of the accident vehicle.
8. PW 1 testified that she visited the scene shortly after the accident in company of the investigating officer PC Siyui, who had since proceeded on transfer, and the Base Commander. PW 1 gave evidence that when they arrived at the scene the body of the deceased and the vehicle were there. The rest of the evidence was of what they were informed of how the accident had occurred. She did not disclose who had given them that information, alleging that the deceased and another person were boarding the vehicle while it was in motion. That the first person successfully boarded but the deceased slipped and fell and was run over in his attempt to board. PW 1 did not produce any sketch maps, drawings, measurements and legends of the scene.
9. PW 2 had no evidence of how the accident occurred. He said that he was told about it but also did not disclose who informed him of the accident.
10. DW 1, Athman Kenga Chome, the driver of the vehicle adopted his witness statement dated 13 th May 2022 as his evidence in chief. His evidence was that he was in the vehicle alone travelling to Lamu from Mombasa transporting cement. In his statement he wrote that he was in Malindi town at around 7.30 p.m. and traffic was slow. The road was clear and well lit. He took the roundabout and a few metres ahead he heard people calling and shouting at him to stop. He was informed that someone had hitched onto the backside of the lorry but slipped and fallen off and was run over by the tyres of the lorry. He stopped the vehicle and traffic police officers came to the scene. He said the person was not known to him and neither did he know where he came from and at what point he tried to climb onto the lorry as he never saw him in the rear-view mirror.
11. In cross-examination, DW 1 said that he was informed that he had hit the deceased with the vehicle’s left rear tyre. In re-examination he said that he stepped on the deceased using the motor vehicle.
12. After trial the learned trial magistrate found on the issue of liability that the same had not been proved against the respondents and dismissed the suit with costs.
13. The appellants were dissatisfied with that decision and now appeal to this court on the grounds set out in the memorandum of appeal. There are eight grounds of appeal which upon consideration can be summed into one, that the trial court failed to give a balanced assessment of the evidence tendered by the parties at the trial and instead leaned towards the respondents’ evidence and thereby arrived at an erroneous decision on liability.
14. The appeal was disposed of on the written submissions of the parties. The same are considered in the analysis that follows.
15. I have considered the grounds of appeal, the record of appeal and the submissions by learned counsels for the parties. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
16. The learned trial magistrate found that no doubt the accident occurred and the deceased died as a result thereof as supported by the evidence for both the appellants and the respondents but however, the appellants had not proved negligence upon the respondents.
17. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
18. This Court will interfere where the finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (see the case of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR) ).
19. Learned counsel for the appellant submits that contrary to the learned magistrate’s finding, there was sufficient evidence to find the respondents wholly liable for the accident for reasons that evidence in the form of a police abstract was that the driver of the vehicle was to blame for the accident and this was confirmed by PW 1 in her evidence. Besides, the driver as DW 1 confirmed certain facts in his testimony which supported the appellants’ case which were that the vehicle did indeed ram into the deceased occasioning him fatal injuries.
20. Although learned counsel for the appellants has strongly insisted, stating several times and highlighting in bold in the submissions that the police abstract showed that the driver of the vehicle was charged with the offence of causing death by dangerous driving, that submission that the driver was charged is not true either from the police abstract or from the witness testimonies. What the police abstract indicates is that it was intended to prefer charges against Athman Kenga Chome, who was the driver of the vehicle for the offence of causing death by careless driving. There is however no traffic charge registration number or the court case file number and the respective spaces in the police abstract bear a dash sign.
21. However, what is true is that the police blamed the driver of the accident vehicle for the accident as confirmed in the entry in the police abstract and the evidence of PW 1. However, there is no evidence that the driver was eventually charged for the offence. DW 1 said in his testimony that indeed police intended to charge him with the offence but he had never been charged for the offence and that evidence was not challenged. However, that in itself does not mean that there could be no evidence pointing at his culpability for the accident.
22. Learned counsel relies on the case of Mwaka Chije Barisa v Abdul Hakim Abdala & another [2018] KEHC 1938 (KLR) for the holding that the court could rely on the entry in the police abstract to show that the driver had been blamed for the accident which then was prima facie evidence that he was culpable. The High Court, A. Mbogholi Msagha (as he then was) held that the police accident abstract was sufficient evidence in the case to establish liability on the part of the driver of the vehicle. The court held further that the finding by the trial magistrate that the case had not been proved was against the evidence tendered by the appellant.
23. However, in order to appreciate the full import of those findings, it must be appreciated that in that case the driver or respondent in the appeal did not tender any evidence at trial, unlike in the present case where the driver testified. Here, the scales of justice must determine which evidence weighs more than the other unlike in the cited case where the scales tipped in favour of the appellant for the reason that the respondents offered no evidence at all. This also explains why the case of Esther Nduta Mwangi & Another v. Hussein Dairy Transporters Ltd Machakos HCCC No. 46 of 2007 (UR) for the holding that upon pleading the doctrine of res ipsa loquitor and producing the police abstract in the absence of any other evidence, a prima facie case had been proved against the respondents is not obviously helpful to the appellant. The defining issue in those cases is that there was no other evidence besides the police abstract. In the present case, the driver of the accident vehicle appeared and testified. The issue then became what weight was to be given to the evidence tendered by each party.
24. The respondents on their part submit that the evidence tendered by the appellants at trial was contradictory and at variance. He cites various cases in support of that submission for the position that parties are bound by their pleadings and any evidence that is at variance with the pleadings must be rejected. For instance in the case of Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR) the Court held as follows:
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”
25. The respondents therefore submit that there was contradiction between the pleadings by the appellants and the evidence tendered in support of the case meaning the same could not and was not proved. They submit that they support the decision of the trial court for its finding that the deceased was the author of his own misfortune because he climbed onto the back of the vehicle by his own will, without care or alerting the driver and therefore the driver could not have noticed his presence there. They support the trial court’s reliance on the case of Phyllis Wairimu Macharia v Kiru Tea Factory [2016] KEHC 7259 (KLR) . The facts of that case mirror the present one but are not quite applicable for the reason that in that case, there was eye-witness testimony of how the accident occurred and the driver of the accident vehicle also testified. The trial court weighed the competing evidence and found that the deceased and the respondent’s driver were equally liable for the accident and consequently apportioned liability in the ratio of 50:50. The High Court upheld that finding on appeal but only for the reason that there was no cross-appeal. The High Court expressed itself thus:
“When I consider the driver’s and the eye witness’ accounts against the forgoing background, it appears to me that it is more probable than not that the deceased may have fallen and crashed after he attempted to climb on a moving vehicle. I have reached this conclusion because if it was true that the driver stopped to carry the deceased (albeit without the authority of the respondent) as the eye witness suggested, I do not see why he could not accommodate him in the cabin which had sufficient space for two passengers.
Viewed differently, I cannot see why the deceased should have attempted to travel at the back of an open lorry which was designed to carry tea leaves and not passengers. Irrespective of the circumstances under which the accident occurred, it was always going to be risky if not illegal for the deceased to travel at the back of a lorry which by design did not cater for passenger safety.
That the deceased may have been tempted to climb a moving vehicle is also apparent from the eyewitness’ testimony that the vehicle was “not moving very fast” and that “it was moderate”. This testimony appears to be consistent with the appellant’s pleadings that the deceased fell when he either lost grip or could not properly grasp a particular part of the vehicle. I suppose that a simple fall from a stationery vehicle would certainly not have such devastating consequences.
In the face of this evidence, I am inclined to think that at the very least, it was not established on a balance of probabilities that the driver of the ill-fated lorry was solely responsible or even contributed, by as much margin as attributed to him by the learned magistrate, to the occurrence of the accident from which the deceased died. However, since the respondent did not cross-appeal, I have no reason to disturb the learned magistrate’s finding on liability...”
26. I have quoted the decision extensively to show that there was eye witness testimony of how the accident in that case occurred unlike in the present case. I have found above that the testimony by PW 1 that the deceased was attempting the board the vehicle was hearsay and of no probative value. It is even worse that the police did not find it important to even take down the details of the other person who had allegedly boarded the vehicle first and was being followed by the deceased.
27. Learned counsel for the respondents submits citing section 107 and 108 of the Evidence Act (Cap. 80) Laws of Kenya that the appellants did not discharge the burden of proof as required by law. Learned counsel has submitted several authorities on that issue.
28. I agree with the submission by learned counsel for the respondents that the onus was on the appellants to prove their case and it never shifted to the respondents. That is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya , which provides:
“107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
29. In this case, the appellants pleaded in the plaint and PW 2 testified in court that he wished the court to find in their favour that the respondents had through negligence caused the death of the deceased through the road traffic accident and therefore were liable to pay the estate of the deceased and the dependents damages.
30. The appellants pleaded that the deceased was lawfully walking off the road when the accident vehicle lost control and rammed into him and therefore attributed negligence on the part of the driver. The appellant’s evidence on that pleading was tendered by PW 1 who said that she went to the scene after the accident and found the vehicle and the deceased’s body there. There was also the evidence in the police abstract that the driver had been blamed for the accident and further from the driver himself that he was waved down and alerted that he had run over somebody. According to him indeed the left rear tyres of the vehicle had run over the deceased. It is this evidence that the trial court was to consider in order to make her decision. I however note that the learned trial magistrate appeared to rely on PW 1’s evidence that the deceased was hiking a lift from the vehicle and that of the driver, DW 1 that the deceased had hitch hiked on the vehicle at the backside. I have found that the testimony by PW 1 that the deceased was attempting to board the vehicle was hearsay and unreliable. That leaves the evidence of the driver to be considered.
31. Now, looking at the pleadings by the respondents in their defence, they alleged that the deceased darted onto and across the highway without checking if the road was clear. Clearly, the evidence tendered by DW 1 did not support that pleading at all. In the respondent’s own submissions, as held in the cited case of Stephen Mutinda Mule (supra) by the Court of Appeal agreed with the Nigerian case of Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc SC 91/2002, for the holding that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.
32. Since the evidence of the respondents was not in line with their pleadings, the same had to be discarded with respect to the defence pleaded by the respondents. For that reason, the learned trial magistrate ought not to have considered it at all.
33. But, the learned trial magistrate in evaluating the evidence stated as follows:
“ The plaintiffs did not discharge their burden to prove that the deceased was ran over by the motor vehicle. PW 1 and DW 1’s evidence leads to the conclusion that the deceased was the author of his misfortunes. He climbed onto the back of the vehicle by his own will. DW 1 cannot be faulted for not looking at the rear of the motor vehicle to notice if there were unauthorized persons who had climbed onto the motor vehicle . DW 1 running over the deceased did not mean that he was negligent. DW 1 was not anticipating that the deceased was to get onto the motor vehicle from whichever side. The deceased had a duty to ensure his own safety and avoid climbing onto or boarding motor vehicles without care or alerting the driver.”
34. The first issue to notice from this excerpt of the trial court’s judgment is that the learned magistrate started by stating that the appellants had had not discharged the burden to prove that the deceased was run over by the motor vehicle. That statement means that there was no proof that the deceased met his death by being run over by the respondents’ motor vehicle. That was an erroneous finding because there was no dispute on that issue and further the evidence by PW 1 and DW 1 showed that the deceased was run over by the respondents’ motor vehicle.
35. In spite of that finding the learned magistrate went ahead to appreciate that indeed the deceased had been run over by the respondents’ motor vehicle then went further to hold that he was to blame for the accident because he allegedly was boarding the vehicle from behind without alerting the driver. Now how did the learned magistrate arrive at that conclusion that the deceased was boarding the vehicle from behind? None of the witnesses who testified tendered such evidence.
36. I have found above that the evidence of the driver was not reliable with respect to the defence tendered. In spite of that, the driver’s evidence seemed to support the appellants’ case right from the pleadings to the evidence offered at the trial. The appellants’ pleaded that the deceased was walking along the road when the respondents’ vehicle lost control and rammed into him thereby causing him fatal injuries. PW 1 testified that when they arrived at the scene, the body of the deceased was lying behind the stationary vehicle on the left side. He had been run over by the left tyre. He reiterated the same in cross-examination and then said that the driver would have controlled the motor vehicle using the side mirror (sic). The driver himself testified that he was told that he had run over the deceased with the vehicle’s left rear tyre. He was present at the scene and he did not dispute that what he had been told was correct.
37. From this evidence it is apparent that the appellant’s pleadings that the driver failed to control the vehicle were supported by the evidence of PW 1 and that of the driver because what else would explain why the vehicle had run over the deceased? The fact that there was a body lying on the left side of the road behind the vehicle supports the pleading that the deceased must have been on the left side of the road at the time of the accident.
38. The driver testified that the he had just negotiated a roundabout when he was alerted that the vehicle had hit someone using the rear left tyre. That was his evidence in chief. He did not deny that indeed the vehicle had hit the deceased with the rear left tyre. In cross-examination he conceded that he stepped on the deceased using the vehicle. He also said in his written statement that the road was clear and well lit. The question is, where could the deceased have suddenly emerged and get run over by the rear left tyre of the vehicle? With the evidence that the deceased was run over by the rear left tyre of the vehicle, the plausible explanation of what happened must be that he was a pedestrian on the left side of the vehicle when he was run over.
39. The learned magistrate thought that the deceased was a hitch hiker but there was no evidence at all to support that finding. She appears to have relied on the driver’s assertion that when he stopped the vehicle he was informed that someone who had hitch hiked onto the back side of the lorry had slipped and fallen off and unfortunately got run over by the left handside tyres of the lorry. But for himself, he said that he did not know where the person climbed or where he came from. That means the driver had no evidence that the deceased had hitch hiked on the vehicle since whoever told him that, was not a witness in the matter.
40. In sum therefore, the appellants’ evidence was in tandem with their pleading that the deceased was hit by the vehicle’s rear left tyre.
41. Section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened . It says :
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
42. In this case, the court is faced with the fact that an accident did occur on the road. Proper human conduct dictates that a vehicle when properly driven on the road will not run over pedestrians without proper explanation. In the case of Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] eKLR the Court of Appeal said thus:
“Indeed, from the averments in the plaint and from the evidence of Ruth Kendi the doctrine of Res Ipsa Loquitur applied in this case and the appellant did not discharge the burden of showing that the accident occurred without the negligence of its driver. Buses, when properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation.
43. In this case, there is no explanation forthcoming from the driver of the vehicle of how it ran over the deceased who was a pedestrian.
44. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1 st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
45. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
46. Consequently, guided by this decision, I must depart from the finding of the learned trial magistrate that there was no proof of negligence on the part of the driver of the vehicle. The learned trial magistrate relied on what she thought was evidence of how the accident occurred when in fact it was not.
47. I find that it is most probable that while the lorry was negotiating the roundabout the vehicle’s rear body part extended towards the reach of the deceased who was on the road at the time and the rear left tyre ran over him. It may be true that the driver may not have seen the impact but his own evidence that the road was clear and well lit means he failed to take hid of the presence of other people on the road at the time so as to steer the vehicle c
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