CORAM: In the presence of Justice R. Nyakundi
M/S Shibanda & Co. Advocates
M/S Ngaywa & Kibet Partners LLP Advocates
INTRODUCTION
1. This is a first appeal from the judgment of the Senior Principal Magistrate's Court at Hamisi in Civil Case No. E056 of 2023, by which the learned trial magistrate dismissed the Appellant's claim for damages arising out of a fatal road traffic accident, with costs to the Respondent.
2. The deceased, Johnstone Taifa Andalo, died on 2nd July 2023 at Vihiga County Referral Hospital, a day after being injured in a collision between motor vehicle registration number KDB 117J Toyota Hilux, in which he was travelling as a passenger, and motor vehicle registration number KBT 305K Coaster bus, along the Kilingili road within Vihiga County. The Respondent was sued as the registered owner of the Toyota Hilux and as the person vicariously liable for the acts and omissions of its driver.
3. The Appellant is the widow of the deceased and one of two administrators ad litem of his estate.
THE CASE BEFORE THE TRIAL COURT
4. By a plaint dated 30th August 2023, Adelite Ashama and Levic Enos Opati, suing as the legal representatives and administrators of the estate of the deceased, claimed general damages under the Fatal Accidents Act, Chapter 32, and the Law Reform Act, Chapter 26 of the Laws of Kenya, special damages, costs and interest. They pleaded that on 1st July 2023 the deceased was a lawful passenger aboard motor vehicle registration number KDB 117J along the Kilingili–Luanda road when the Respondent's driver, servant or agent so carelessly, negligently or recklessly drove, managed or controlled that vehicle that he caused it to collide with motor vehicle registration number KBT 305K, thereby occasioning the deceased fatal injuries. Eleven particulars of negligence were pleaded, and the plaintiffs additionally invoked the doctrine of res ipsa loquitur.
5. The plaint pleaded that the deceased was aged 45 years, was in good health, was a mason earning about Kshs. 1,000 per day, and was the main breadwinner of his dependants, who were listed as the widow and six children, four of them minors. Funeral expenses of about Kshs. 100,000 were pleaded, together with particulars of special damages totalling Kshs. 55,000.
6. By his statement of defence dated 4th October 2023 the Respondent denied the claim in its entirety. He denied ownership of motor vehicle registration number KDB 117J. He denied that the deceased was a passenger in it, denied that any accident occurred as alleged, and denied every particular of negligence. In the alternative he pleaded contributory negligence, giving seven particulars: that the deceased failed to fasten his safety belt; engaged the driver in animated conversation; failed to adhere to the Traffic Act and the Highway Code; distracted the driver's attention; urged the driver to drive at very high speed; wilfully boarded a vehicle not authorised to carry passengers; and contributed to the occurrence of the accident. He further pleaded the doctrine of volenti non fit injuria, and at paragraph 14 raised an objection to the jurisdiction of the trial court.
THE EVIDENCE AT THE TRIAL
7. The Appellant called two witnesses. The Respondent called none.
8. PW1, Adelite Ashama, adopted her witness statement dated 30th August 2023 as her evidence in chief. She testified that she went to hospital and found her husband in a critical condition and on oxygen, and that he later died. She produced her documents, which were admitted as Prosecution, properly, Plaintiff's Exhibits 1 to 7 and 9 to 11, comprising among other things the grant of letters of administration ad litem, the chief's letter, advocates' receipts for Kshs. 15,000 and Kshs. 50,000, the death certificate, the post-mortem report, a bundle of payment receipts, birth certificates and identity cards of the dependants. In crossexamination she said that the deceased was her husband of over fifteen years, that he died on 2nd July 2023, that he was a passenger in the motor vehicle, that he worked as a contractor and was self-employed, and that she has seven children who are still in school, the youngest aged four. There was no re-examination.
9. PW2, Police Constable Damaris Mutunga, attached to Vihiga Police Station on traffic duties, testified that she had the police abstract issued at that station in 2023 in respect of a road traffic accident which occurred on 1st July 2023 involving the deceased. She said the accident occurred at Kilingili along the Kilingili–Stendikisa road, and involved motor vehicles registration numbers KDB 117J and KBT 305K; that due to the impact the deceased was rushed to hospital and succumbed while receiving treatment; and that the driver was charged before the Hamisi Law Courts with causing death by dangerous driving. She stated that she was referring to the police file, and that the driver was liable. She produced the police abstract as Plaintiff's Exhibit 8.
10. In cross-examination PW2 said that she did not visit the scene on the day the accident occurred; that the abstract was issued on 5th July 2023;
that the traffic case, being No. E066 of 2023, was still ongoing; and that she did not know the number of passengers who were in motor vehicle registration number KDB 117J. In re-examination she stated that the deceased was one of the passengers in motor vehicle registration number KDB 117J; that she confirmed that motor vehicle KDB 117J was the one that rammed into the other motor vehicle and caused the accident; that its driver was charged with causing death by dangerous driving; and that the traffic case had not been concluded.
11. The post-mortem report produced in evidence records the apparent age of the deceased as 45 years and gives the cause of death as severe head injury. The death certificate records that he died on 2nd July 2023 at Vihiga County Referral Hospital.
12. Upon the close of the Appellant's case, counsel for the Respondent closed the defence case without calling any witness. The parties filed written submissions and judgment was reserved.
THE JUDGMENT APPEALED AGAINST
13. The learned trial magistrate identified the twin issues as liability and quantum. On liability she held that the burden lay on the plaintiffs under Sections 107 and 112 of the Evidence Act; that although it may well be true that the deceased was a passenger in the subject motor vehicle, the aspect of who bore the blame had to be proved; that for that question to be sufficiently answered it was incumbent upon the plaintiffs to avail an eyewitness to explain how the accident occurred; that PW2 was not the investigating officer, did not go to the scene, availed no sketch maps and did not produce the motor vehicle inspection reports; that the police abstract alone established only that the accident occurred; that PW1 was not an eyewitness; and that the existence of a pending traffic case was not enough to prove liability since the court was not privy to the facts leading to the driver's arrest and charge.
14. On res ipsa loquitur she adopted the reasoning in Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR to the effect that the doctrine does not determine liability and does not shift the burden, and held that the failure of the driver to testify did not shift the burden at all.
15. She accordingly found that the plaintiffs had failed to prove the negligent acts pleaded in paragraph 4 of the plaint, dismissed the suit and awarded costs to the Respondent. She made no assessment of damages. THE APPEAL
16. The memorandum of appeal dated 15th August 2024 raises ten grounds, lettered (a) to (j). Reduced to their essentials, they are that the learned magistrate erred: in failing to assess damages in the event that the suit had succeeded; in rejecting the evidence of PW2 on the ground that she was not the investigating officer, when she testified from the police file and stated that the subject motor vehicle lost control and rammed into the Coaster bus and was therefore to blame; in finding that the plaintiffs had not proved their case; in absolving the driver of the subject motor vehicle and failing to appreciate that the deceased was a passenger with no control over it; in holding that the suit failed because no eyewitness testified; in failing to consider that the Appellant's evidence on the occurrence of the accident was unchallenged; in concluding that the Appellant had not proved her claim when the Respondent had not proved that he was not to blame; and in failing properly to scrutinise and evaluate the pleadings, evidence and submissions.
17. The Appellant prays that the judgment of 26th July 2024 and all consequential orders be set aside and that this court proceed to deliver judgment on liability and quantum, together with costs.
18. The appeal was canvassed by way of written submissions. The Appellant's submissions are dated 17th April 2026 and the Respondent's are dated 2nd May 2026. I have read both, together with the record of appeal, the supplementary record of appeal and the further supplementary record of appeal, and I am grateful to both counsel for their industry.
PRELIMINARY MATTERS ARISING FROM THE RECORD
19. Three matters of form require disposal before I turn to the merits.
20. First, the suit in the court below was brought by two plaintiffs, Adelite Ashama and Levic Enos Opati, jointly as administrators ad litem, and the decree is drawn in favour of both. The memorandum of appeal, however, names Adelite Ashama alone as appellant, while the Respondent's submissions treat both as appellants. Nothing turns on the discrepancy. The two are joint administrators of a single estate, the appeal is brought for the benefit of that estate, the Respondent has suffered no prejudice and has taken no objection, and Article 159(2)(d) of the Constitution requires that justice be administered without undue regard to procedural technicalities. I shall treat the appeal as having been competently brought on behalf of the estate, and any award made will enure to the estate and be administered by both administrators.
21. Secondly, the memorandum of appeal is headed "In the Chief Magistrates Court at Vihiga" and states that the judgment appealed from was delivered on 29th 1July 2024. Both are plainly slips. The appeal was filed in and has at all times been prosecuted before this court as High Court Civil Appeal No. E037 of 2024, and the certified judgment and the decree both show that judgment was dated, signed and delivered in open court at Hamisi on 26th July 2024, the electronic signature stamp of 29th July 2024 being the date of authentication. Computing time from 26th July 2024, the memorandum of appeal filed on 15th August 2024 was filed within time. The appeal is competent.
22. Thirdly, the objection to jurisdiction pleaded at paragraph 14 of the statement of defence was never argued in the court below, was not the subject of any ruling, and has not been renewed on appeal. The value of the subject matter fell within the pecuniary jurisdiction of the trial court and the cause of action arose within its territorial jurisdiction. The point does not arise.
THE DUTY OF THIS COURT ON A FIRST APPEAL
23. The duty of a first appellate court is settled. It is to reconsider the evidence tendered before the trial court, to evaluate it afresh and to draw its own conclusions, while bearing constantly in mind that it neither saw nor heard the witnesses and must make due allowance in that respect. The classic statement is that of the Court of Appeal for Eastern Africa in Selle and Another v Associated Motor Boat Company Limited [1968] EA 123, and in Peters v Sunday Post Limited [1958] EA 424.
24. In Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982– 88) 1 KAR 278 the Court of Appeal explained that a first appellate court will hesitate before reversing a trial court on findings of fact, and will do so only where it appears that the trial court failed to take account of particular circumstances or probabilities, or where the impression based on the demeanour of a witness is inconsistent with the evidence generally. In Abok James Odera t/a A. J. Odera and Associates v John Patrick Machira t/a Machira and Company Advocates [2013] eKLR the Court of Appeal restated the obligation of the first appellate court to subject the whole of the evidence to a fresh and exhaustive scrutiny.
25. That caution as to demeanour has limited application to this appeal. The determination under challenge did not turn on the credibility or demeanour of any witness. The learned magistrate did not disbelieve PW1 or PW2; she held that their evidence, accepted at face value, was insufficient in law to establish negligence. That is a conclusion of law drawn from undisputed primary facts, and this court is in as good a position as the trial court to reach its own view upon it.
26. I would add this. The power conferred on this court by Section 78 of the Civil Procedure Act includes the power to determine a case finally and, where necessary, to take additional evidence or to remit issues for trial. Where, as here, the evidence is complete, the parties have fully submitted on quantum both below and on appeal, and the accident occurred over three years ago, it would compound rather than cure the injustice to remit this matter for a further hearing. If the appeal succeeds on liability, this court should determine the whole matter.
ISSUES FOR DETERMINATION
27. The issues which fall for determination are:
a) whether the Appellant proved, on a balance of probabilities, that the accident of 1st July 2023 was caused by the negligence of the Respondent's driver, servant or agent, and if so in what proportion;
b) whether the learned trial magistrate erred in failing to assess damages notwithstanding her dismissal of the suit;
c) if liability is established, what damages ought to be awarded; and
d) what orders ought to be made as to interest and costs.
I. LIABILITY
(i)The burden and standard of proof
28. There is no dispute as to the governing principles, and both counsel set them out fully. He who alleges must prove. Section 107(1) of the Evidence Act, Chapter 80 of the Laws of Kenya, provides that 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. Section 109 places the burden of proof as to any particular fact on the person who wishes the court to believe in its existence. Section 112 provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
29. The standard is proof on a balance of probabilities. As Denning J. put it in Miller v Minister of Pensions [1947] 2 All ER 372, cited with approval in Palace Investment Limited v Geoffrey Kariuki Mwendwa and Another [2015] eKLR, the degree of probability required is not so high as in a criminal case; if the tribunal can say that it thinks it more probable than not, the burden is discharged, but if the probabilities are equal it is not. In William Kabogo Gitau v George Thuo and 2 Others [2010] 1 KLR 526 Kimaru J. expressed the same idea in percentage terms.
30. It is equally settled, as the Court of Appeal held in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Another [2014] eKLR, that the standard of proof in a civil case does not change merely because there has been no rebuttal by the other side. The absence of a defence case
does not relieve a plaintiff of the obligation to prove his claim. The learned magistrate was right so to direct herself.
31. But it is one thing to say that the burden never shifts; it is quite another to say that the evidential position is unaffected by a defendant's silence. Those are distinct propositions, and it is in conflating them that, with respect, the judgment below fell into error.
32. In so far as our jurisdiction is concerned and as alluded to elsewhere in this judgment, the admissibility and probative value of evidence is now well settled as demonstrated by the following case law:
• James Muniu Mucheru v. National Bank of Kenya Limited [2019] KECA 1058 (KLR): Reaffirms that courts make factual determinations based on which party's version of the story is more believable.
• Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others [2015] eKLR: Sets out the explicit threshold of facts required to prove a bona fide purchaser status in property disputes.
• Kimani & another v. Mungai & another [2023] eKLR: Highlights that negligence cannot be assumed from the mere occurrence of an accident; specific particulars of fault or application of res ipsa loquitur must be proven.
33. An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words, an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an "accident". But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident.
34. Accidental means' and 'Accidental death' are to be read as similar or whether in order for an accidental insurance claim to succeed, the means causing the injury or death also have to be accidental in nature. For the purposes of this case, it is not necessary to conclusively decide this question. In order to sustain a claim under the accident benefit cover, it must be established that the assured has sustained a bodily injury which resulted solely and directly from the accident. There must, in other words exist a proximate causal relationship between the accident and the bodily injury. Moreover, the accident must be caused by outward violent and visible means.
35. In this appeal the impugned judgement would be tested and interpreted within the following components:
a. The claimant must prove that the bodily injury either physical or fatal was caused as a result of negligence on the part of the Defendant/Respondent.
b. That the injury of fatal injuries complained of must have been caused by outward, violent and visible means
c. That the injury must primarily, directly and independently of all other causes resulted in the death of the claimant
d. That the death or injury proximate cause is at attributable to the negligence of the Respondent/Defendant
e.
(ii) The position of the deceased as a passenger
36. The starting point, and in my view the point which the judgment below did not give its proper weight, is that the deceased was a passenger.
37. That the deceased was a lawful passenger aboard motor vehicle registration number KDB 117J was pleaded, was testified to by PW1 in cross-examination, was confirmed by PW2 in re-examination, and appears from the police abstract. It was not shaken in crossexamination. Indeed, the Respondent's own pleading assumes it: the particulars of contributory negligence at paragraph 7 of the defence allege that the deceased failed to fasten his safety belt, engaged the driver in animated conversation, distracted the driver's attention and urged him to drive at very high speed. Those allegations are unintelligible except upon the footing that the deceased was in the vehicle, seated in a position to converse with its driver. A party is bound by his pleadings,
and the Respondent cannot in the same breath deny that the deceased was a passenger and complain of what he did as one.
38. The legal consequence of that status is well established. A passenger has no control whatever over the manner in which a vehicle is driven and cannot be visited with the consequences of the driver's want of skill or care. In Boniface Waiti and Another v Michael Kairuki Kamau [2007] eKLR Nambuye J. (as she then was) observed that passengers have no control over the manner of driving of a vehicle in which they are conveyed and cannot be penalised for the poor workmanship of the control of the vehicle, and that the explanation on causation in such circumstances lies with the driver. The same reasoning underpins Tijan Kisilu v Bonfide Clearing and Forwarding Company Limited and 2 Others [2018] eKLR, where the court held that allowing oneself to be driven in a vehicle which is struck by another places no liability on the passenger merely by virtue of his presence in it.
39. It follows that no question of contributory negligence could arise in this case unless it were affirmatively proved. It was not. The Respondent led no evidence at all. His pleaded particulars of contributory negligence remained bare allegations from the day the defence was filed to the day judgment was delivered. So too his plea of volenti non fit injuria, a defence which requires proof that the deceased, with full knowledge of the nature and extent of the risk, freely and voluntarily agreed to incur it. Nothing of the kind was even attempted. A passenger who accepts a ride does not thereby consent to being driven negligently: Dann v Hamilton [1939] 1 KB 509.
40. In Janet Kaphiphe Ouma and Another v Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, the court, citing Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997, held that where a defendant does no more than file a statement of defence and adduces no evidence in support of the assertions made in it, the plaintiff's evidence remains uncontroverted and the statements in the defence remain mere allegations. That is precisely the position here, and Sections 107 and 109 of the Evidence
Act, on which the Respondent so heavily relied, bear as much upon him as upon the Appellant.
(iii) The treatment of the evidence of PW2
41. The learned magistrate discounted the evidence of PW2 on four grounds: that she was not the investigating officer; that she did not visit the scene; that she availed no sketch maps; and that she did not produce the motor vehicle inspection reports. With respect, each of those grounds requires examination.
42. As to the first, the police abstract and the occurrence book are public documents within the meaning of Sections 79 and 80 of the Evidence Act. They may be produced by any officer serving at the station which holds them, whether or not he investigated the matter. That was the holding in John Kibicho Thirima v Emanuel Parsmei Mkoitiko [2017] eKLR, where the court observed that such documents are producible by any police officer serving at a police station, whether or not he was the investigating officer, because it is a matter of public knowledge that public officers are transferred from their stations from time to time while the public records remain. There was accordingly no legal impediment to PW2 producing the abstract, and none was taken at the trial.
43. As to the absence of a sketch plan, in Equator Distributors v Joel Muriu [2018] eKLR the Court of Appeal held that a police sketch map is prepared after the event, is not an eyewitness account, carries some probative value but is not binding on the trial court, and is but one item of evidence to be considered. Its absence is a matter going to weight; it is not fatal.
44. As to the motor vehicle inspection reports, no case of mechanical defect was ultimately pursued, and their absence is immaterial to the question whether the driver drove carelessly.
45. But there is a more fundamental difficulty with the way PW2's evidence was treated. The learned magistrate approached it as though the Appellant's case rested on the abstract alone. It did not. PW2 gave oral evidence, on oath, that she was referring to the police file and that from
it the driver of KDB 117J was liable; and in re-examination she stated in terms that KDB 117J was the vehicle that rammed into the other motor vehicle and caused the accident. That is evidence of the mechanism of the collision. Whatever weight it might ultimately bear, it was more than proof that a report had been made at a police station.
46. I recognize the force of the objection that PW2 was speaking from a file she did not compile, and that her attribution of blame was in a sense an opinion formed by another. Had that objection been taken at the trial, it would have called for a ruling. It was not taken. The evidence went in without objection. More significantly, the single assertion on which the Appellant's case on mechanism depended — that KDB 117J rammed into KBT 305K — was never challenged in cross-examination. Crossexamination was directed to four matters only: that PW2 had not visited the scene; the date the abstract was issued; that the traffic case was ongoing; and that she did not know how many passengers were in the Hilux. Not one question was put suggesting that the Hilux did not ram the Coaster, or that some other vehicle or agency was responsible, or that the driver of the Hilux was blameless.
47. A party who allows evidence to be given without objection, and who then declines to challenge its central assertion in cross-examination, cannot afterwards be heard to say that the assertion was worthless. In Nandwa v Kenya Kazi Limited [1988] KLR 488 the Court of Appeal held that where in the course of a trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence of the defendant, the issue will be decided in the plaintiff's favour unless the defendant provides an answer adequate to displace that inference. No answer of any kind was provided here.
48. As to the pending traffic case, I agree entirely with the learned magistrate that it proves nothing. A charge is an accusation, not a finding. The driver is presumed innocent until the traffic court says otherwise, and this court is not privy to the evidence in that case. I place no reliance whatever upon it, and I have reached the conclusions which follow leaving it wholly out of account.
(iv) The requirement of an eyewitness
49. The learned magistrate held that "for this question to be answered sufficiently, then it was incumbent for the Plaintiff to avail an eye witness to explain how the accident occurred". She founded that proposition on
Z O S and C A O (suing as the legal representatives in the estate of S A O (deceased)) v Amollo Stephen [2019] eKLR, cited in Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] eKLR.
50. With respect, that authority does not bear the weight placed upon it. What the court there said was that it was incumbent upon the appellant either to call an eyewitness who saw the accident take place, or to call the police from Bondo Police Station who investigated the accident to shed light on the results of the investigations and as to who was to blame. The formulation is disjunctive. It identifies two alternative routes by which a plaintiff who did not himself witness the accident may prove how it happened. It does not lay down that an eyewitness is indispensable, nor could it. For Section 143 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. A rule that a fatal accident claim must fail unless an eyewitness is produced would put compensation beyond the reach of every dependant whose breadwinner was killed on a lonely road, and would reward the very drivers who leave no witness behind. That is not and has never been the law.
51. In this case the Appellant took the second of the two routes. She called a police officer, who produced the official abstract and spoke to the contents of the official file. The learned magistrate then held that this route was closed because PW2 was not the investigating officer. In doing so she required, in substance, that the plaintiff satisfy both alternatives — an eyewitness and the investigating officer personally — and having found neither, dismissed the claim. That was, in my respectful view, to set the bar higher than the law sets it, and it was an error of principle.
(v) Res ipsa loquitur and the inference of negligence
52. The learned magistrate held, correctly, that the doctrine of res ipsa loquitur does not determine liability and does not relieve a plaintiff of the burden of proving the facts which give rise to it: Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR; Susan Kanini Mwangangi and Another v Patrick Mbithi Kavita [2019] Eklr.
53. But the doctrine is a rule of evidence, and where the facts which attract it are established it has real work to do. Its essence, as the Court of Appeal put it in Florence Mutheu Musembi, is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence. Its classic requirements are that the thing which caused the damage was under the management or control of the defendant or his servants, and that the occurrence is such as would not, in the ordinary course of things, happen if those having such control used proper care.
54. Both requirements are satisfied here. The vehicle in which the deceased was travelling was, upon the evidence, the Respondent's, driven by his driver or agent. And motor vehicles being driven with reasonable care upon a public highway do not, in the ordinary course of things, collide with other motor vehicles. Something went wrong. The Appellant, having proved that the deceased boarded the Respondent's vehicle alive and was carried out of it dying, had gone as far as the nature of the case permitted her to go.
55. At that point Section 112 of the Evidence Act came into play, and it did so against the Respondent, not for him. How the Responden
[...truncated]
M/S Shibanda & Co. Advocates
M/S Ngaywa & Kibet Partners LLP Advocates
INTRODUCTION
1. This is a first appeal from the judgment of the Senior Principal Magistrate's Court at Hamisi in Civil Case No. E056 of 2023, by which the learned trial magistrate dismissed the Appellant's claim for damages arising out of a fatal road traffic accident, with costs to the Respondent.
2. The deceased, Johnstone Taifa Andalo, died on 2nd July 2023 at Vihiga County Referral Hospital, a day after being injured in a collision between motor vehicle registration number KDB 117J Toyota Hilux, in which he was travelling as a passenger, and motor vehicle registration number KBT 305K Coaster bus, along the Kilingili road within Vihiga County. The Respondent was sued as the registered owner of the Toyota Hilux and as the person vicariously liable for the acts and omissions of its driver.
3. The Appellant is the widow of the deceased and one of two administrators ad litem of his estate.
THE CASE BEFORE THE TRIAL COURT
4. By a plaint dated 30th August 2023, Adelite Ashama and Levic Enos Opati, suing as the legal representatives and administrators of the estate of the deceased, claimed general damages under the Fatal Accidents Act, Chapter 32, and the Law Reform Act, Chapter 26 of the Laws of Kenya, special damages, costs and interest. They pleaded that on 1st July 2023 the deceased was a lawful passenger aboard motor vehicle registration number KDB 117J along the Kilingili–Luanda road when the Respondent's driver, servant or agent so carelessly, negligently or recklessly drove, managed or controlled that vehicle that he caused it to collide with motor vehicle registration number KBT 305K, thereby occasioning the deceased fatal injuries. Eleven particulars of negligence were pleaded, and the plaintiffs additionally invoked the doctrine of res ipsa loquitur.
5. The plaint pleaded that the deceased was aged 45 years, was in good health, was a mason earning about Kshs. 1,000 per day, and was the main breadwinner of his dependants, who were listed as the widow and six children, four of them minors. Funeral expenses of about Kshs. 100,000 were pleaded, together with particulars of special damages totalling Kshs. 55,000.
6. By his statement of defence dated 4th October 2023 the Respondent denied the claim in its entirety. He denied ownership of motor vehicle registration number KDB 117J. He denied that the deceased was a passenger in it, denied that any accident occurred as alleged, and denied every particular of negligence. In the alternative he pleaded contributory negligence, giving seven particulars: that the deceased failed to fasten his safety belt; engaged the driver in animated conversation; failed to adhere to the Traffic Act and the Highway Code; distracted the driver's attention; urged the driver to drive at very high speed; wilfully boarded a vehicle not authorised to carry passengers; and contributed to the occurrence of the accident. He further pleaded the doctrine of volenti non fit injuria, and at paragraph 14 raised an objection to the jurisdiction of the trial court.
THE EVIDENCE AT THE TRIAL
7. The Appellant called two witnesses. The Respondent called none.
8. PW1, Adelite Ashama, adopted her witness statement dated 30th August 2023 as her evidence in chief. She testified that she went to hospital and found her husband in a critical condition and on oxygen, and that he later died. She produced her documents, which were admitted as Prosecution, properly, Plaintiff's Exhibits 1 to 7 and 9 to 11, comprising among other things the grant of letters of administration ad litem, the chief's letter, advocates' receipts for Kshs. 15,000 and Kshs. 50,000, the death certificate, the post-mortem report, a bundle of payment receipts, birth certificates and identity cards of the dependants. In crossexamination she said that the deceased was her husband of over fifteen years, that he died on 2nd July 2023, that he was a passenger in the motor vehicle, that he worked as a contractor and was self-employed, and that she has seven children who are still in school, the youngest aged four. There was no re-examination.
9. PW2, Police Constable Damaris Mutunga, attached to Vihiga Police Station on traffic duties, testified that she had the police abstract issued at that station in 2023 in respect of a road traffic accident which occurred on 1st July 2023 involving the deceased. She said the accident occurred at Kilingili along the Kilingili–Stendikisa road, and involved motor vehicles registration numbers KDB 117J and KBT 305K; that due to the impact the deceased was rushed to hospital and succumbed while receiving treatment; and that the driver was charged before the Hamisi Law Courts with causing death by dangerous driving. She stated that she was referring to the police file, and that the driver was liable. She produced the police abstract as Plaintiff's Exhibit 8.
10. In cross-examination PW2 said that she did not visit the scene on the day the accident occurred; that the abstract was issued on 5th July 2023;
that the traffic case, being No. E066 of 2023, was still ongoing; and that she did not know the number of passengers who were in motor vehicle registration number KDB 117J. In re-examination she stated that the deceased was one of the passengers in motor vehicle registration number KDB 117J; that she confirmed that motor vehicle KDB 117J was the one that rammed into the other motor vehicle and caused the accident; that its driver was charged with causing death by dangerous driving; and that the traffic case had not been concluded.
11. The post-mortem report produced in evidence records the apparent age of the deceased as 45 years and gives the cause of death as severe head injury. The death certificate records that he died on 2nd July 2023 at Vihiga County Referral Hospital.
12. Upon the close of the Appellant's case, counsel for the Respondent closed the defence case without calling any witness. The parties filed written submissions and judgment was reserved.
THE JUDGMENT APPEALED AGAINST
13. The learned trial magistrate identified the twin issues as liability and quantum. On liability she held that the burden lay on the plaintiffs under Sections 107 and 112 of the Evidence Act; that although it may well be true that the deceased was a passenger in the subject motor vehicle, the aspect of who bore the blame had to be proved; that for that question to be sufficiently answered it was incumbent upon the plaintiffs to avail an eyewitness to explain how the accident occurred; that PW2 was not the investigating officer, did not go to the scene, availed no sketch maps and did not produce the motor vehicle inspection reports; that the police abstract alone established only that the accident occurred; that PW1 was not an eyewitness; and that the existence of a pending traffic case was not enough to prove liability since the court was not privy to the facts leading to the driver's arrest and charge.
14. On res ipsa loquitur she adopted the reasoning in Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR to the effect that the doctrine does not determine liability and does not shift the burden, and held that the failure of the driver to testify did not shift the burden at all.
15. She accordingly found that the plaintiffs had failed to prove the negligent acts pleaded in paragraph 4 of the plaint, dismissed the suit and awarded costs to the Respondent. She made no assessment of damages. THE APPEAL
16. The memorandum of appeal dated 15th August 2024 raises ten grounds, lettered (a) to (j). Reduced to their essentials, they are that the learned magistrate erred: in failing to assess damages in the event that the suit had succeeded; in rejecting the evidence of PW2 on the ground that she was not the investigating officer, when she testified from the police file and stated that the subject motor vehicle lost control and rammed into the Coaster bus and was therefore to blame; in finding that the plaintiffs had not proved their case; in absolving the driver of the subject motor vehicle and failing to appreciate that the deceased was a passenger with no control over it; in holding that the suit failed because no eyewitness testified; in failing to consider that the Appellant's evidence on the occurrence of the accident was unchallenged; in concluding that the Appellant had not proved her claim when the Respondent had not proved that he was not to blame; and in failing properly to scrutinise and evaluate the pleadings, evidence and submissions.
17. The Appellant prays that the judgment of 26th July 2024 and all consequential orders be set aside and that this court proceed to deliver judgment on liability and quantum, together with costs.
18. The appeal was canvassed by way of written submissions. The Appellant's submissions are dated 17th April 2026 and the Respondent's are dated 2nd May 2026. I have read both, together with the record of appeal, the supplementary record of appeal and the further supplementary record of appeal, and I am grateful to both counsel for their industry.
PRELIMINARY MATTERS ARISING FROM THE RECORD
19. Three matters of form require disposal before I turn to the merits.
20. First, the suit in the court below was brought by two plaintiffs, Adelite Ashama and Levic Enos Opati, jointly as administrators ad litem, and the decree is drawn in favour of both. The memorandum of appeal, however, names Adelite Ashama alone as appellant, while the Respondent's submissions treat both as appellants. Nothing turns on the discrepancy. The two are joint administrators of a single estate, the appeal is brought for the benefit of that estate, the Respondent has suffered no prejudice and has taken no objection, and Article 159(2)(d) of the Constitution requires that justice be administered without undue regard to procedural technicalities. I shall treat the appeal as having been competently brought on behalf of the estate, and any award made will enure to the estate and be administered by both administrators.
21. Secondly, the memorandum of appeal is headed "In the Chief Magistrates Court at Vihiga" and states that the judgment appealed from was delivered on 29th 1July 2024. Both are plainly slips. The appeal was filed in and has at all times been prosecuted before this court as High Court Civil Appeal No. E037 of 2024, and the certified judgment and the decree both show that judgment was dated, signed and delivered in open court at Hamisi on 26th July 2024, the electronic signature stamp of 29th July 2024 being the date of authentication. Computing time from 26th July 2024, the memorandum of appeal filed on 15th August 2024 was filed within time. The appeal is competent.
22. Thirdly, the objection to jurisdiction pleaded at paragraph 14 of the statement of defence was never argued in the court below, was not the subject of any ruling, and has not been renewed on appeal. The value of the subject matter fell within the pecuniary jurisdiction of the trial court and the cause of action arose within its territorial jurisdiction. The point does not arise.
THE DUTY OF THIS COURT ON A FIRST APPEAL
23. The duty of a first appellate court is settled. It is to reconsider the evidence tendered before the trial court, to evaluate it afresh and to draw its own conclusions, while bearing constantly in mind that it neither saw nor heard the witnesses and must make due allowance in that respect. The classic statement is that of the Court of Appeal for Eastern Africa in Selle and Another v Associated Motor Boat Company Limited [1968] EA 123, and in Peters v Sunday Post Limited [1958] EA 424.
24. In Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982– 88) 1 KAR 278 the Court of Appeal explained that a first appellate court will hesitate before reversing a trial court on findings of fact, and will do so only where it appears that the trial court failed to take account of particular circumstances or probabilities, or where the impression based on the demeanour of a witness is inconsistent with the evidence generally. In Abok James Odera t/a A. J. Odera and Associates v John Patrick Machira t/a Machira and Company Advocates [2013] eKLR the Court of Appeal restated the obligation of the first appellate court to subject the whole of the evidence to a fresh and exhaustive scrutiny.
25. That caution as to demeanour has limited application to this appeal. The determination under challenge did not turn on the credibility or demeanour of any witness. The learned magistrate did not disbelieve PW1 or PW2; she held that their evidence, accepted at face value, was insufficient in law to establish negligence. That is a conclusion of law drawn from undisputed primary facts, and this court is in as good a position as the trial court to reach its own view upon it.
26. I would add this. The power conferred on this court by Section 78 of the Civil Procedure Act includes the power to determine a case finally and, where necessary, to take additional evidence or to remit issues for trial. Where, as here, the evidence is complete, the parties have fully submitted on quantum both below and on appeal, and the accident occurred over three years ago, it would compound rather than cure the injustice to remit this matter for a further hearing. If the appeal succeeds on liability, this court should determine the whole matter.
ISSUES FOR DETERMINATION
27. The issues which fall for determination are:
a) whether the Appellant proved, on a balance of probabilities, that the accident of 1st July 2023 was caused by the negligence of the Respondent's driver, servant or agent, and if so in what proportion;
b) whether the learned trial magistrate erred in failing to assess damages notwithstanding her dismissal of the suit;
c) if liability is established, what damages ought to be awarded; and
d) what orders ought to be made as to interest and costs.
I. LIABILITY
(i)The burden and standard of proof
28. There is no dispute as to the governing principles, and both counsel set them out fully. He who alleges must prove. Section 107(1) of the Evidence Act, Chapter 80 of the Laws of Kenya, provides that 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. Section 109 places the burden of proof as to any particular fact on the person who wishes the court to believe in its existence. Section 112 provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
29. The standard is proof on a balance of probabilities. As Denning J. put it in Miller v Minister of Pensions [1947] 2 All ER 372, cited with approval in Palace Investment Limited v Geoffrey Kariuki Mwendwa and Another [2015] eKLR, the degree of probability required is not so high as in a criminal case; if the tribunal can say that it thinks it more probable than not, the burden is discharged, but if the probabilities are equal it is not. In William Kabogo Gitau v George Thuo and 2 Others [2010] 1 KLR 526 Kimaru J. expressed the same idea in percentage terms.
30. It is equally settled, as the Court of Appeal held in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Another [2014] eKLR, that the standard of proof in a civil case does not change merely because there has been no rebuttal by the other side. The absence of a defence case
does not relieve a plaintiff of the obligation to prove his claim. The learned magistrate was right so to direct herself.
31. But it is one thing to say that the burden never shifts; it is quite another to say that the evidential position is unaffected by a defendant's silence. Those are distinct propositions, and it is in conflating them that, with respect, the judgment below fell into error.
32. In so far as our jurisdiction is concerned and as alluded to elsewhere in this judgment, the admissibility and probative value of evidence is now well settled as demonstrated by the following case law:
• James Muniu Mucheru v. National Bank of Kenya Limited [2019] KECA 1058 (KLR): Reaffirms that courts make factual determinations based on which party's version of the story is more believable.
• Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others [2015] eKLR: Sets out the explicit threshold of facts required to prove a bona fide purchaser status in property disputes.
• Kimani & another v. Mungai & another [2023] eKLR: Highlights that negligence cannot be assumed from the mere occurrence of an accident; specific particulars of fault or application of res ipsa loquitur must be proven.
33. An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words, an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an "accident". But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident.
34. Accidental means' and 'Accidental death' are to be read as similar or whether in order for an accidental insurance claim to succeed, the means causing the injury or death also have to be accidental in nature. For the purposes of this case, it is not necessary to conclusively decide this question. In order to sustain a claim under the accident benefit cover, it must be established that the assured has sustained a bodily injury which resulted solely and directly from the accident. There must, in other words exist a proximate causal relationship between the accident and the bodily injury. Moreover, the accident must be caused by outward violent and visible means.
35. In this appeal the impugned judgement would be tested and interpreted within the following components:
a. The claimant must prove that the bodily injury either physical or fatal was caused as a result of negligence on the part of the Defendant/Respondent.
b. That the injury of fatal injuries complained of must have been caused by outward, violent and visible means
c. That the injury must primarily, directly and independently of all other causes resulted in the death of the claimant
d. That the death or injury proximate cause is at attributable to the negligence of the Respondent/Defendant
e.
(ii) The position of the deceased as a passenger
36. The starting point, and in my view the point which the judgment below did not give its proper weight, is that the deceased was a passenger.
37. That the deceased was a lawful passenger aboard motor vehicle registration number KDB 117J was pleaded, was testified to by PW1 in cross-examination, was confirmed by PW2 in re-examination, and appears from the police abstract. It was not shaken in crossexamination. Indeed, the Respondent's own pleading assumes it: the particulars of contributory negligence at paragraph 7 of the defence allege that the deceased failed to fasten his safety belt, engaged the driver in animated conversation, distracted the driver's attention and urged him to drive at very high speed. Those allegations are unintelligible except upon the footing that the deceased was in the vehicle, seated in a position to converse with its driver. A party is bound by his pleadings,
and the Respondent cannot in the same breath deny that the deceased was a passenger and complain of what he did as one.
38. The legal consequence of that status is well established. A passenger has no control whatever over the manner in which a vehicle is driven and cannot be visited with the consequences of the driver's want of skill or care. In Boniface Waiti and Another v Michael Kairuki Kamau [2007] eKLR Nambuye J. (as she then was) observed that passengers have no control over the manner of driving of a vehicle in which they are conveyed and cannot be penalised for the poor workmanship of the control of the vehicle, and that the explanation on causation in such circumstances lies with the driver. The same reasoning underpins Tijan Kisilu v Bonfide Clearing and Forwarding Company Limited and 2 Others [2018] eKLR, where the court held that allowing oneself to be driven in a vehicle which is struck by another places no liability on the passenger merely by virtue of his presence in it.
39. It follows that no question of contributory negligence could arise in this case unless it were affirmatively proved. It was not. The Respondent led no evidence at all. His pleaded particulars of contributory negligence remained bare allegations from the day the defence was filed to the day judgment was delivered. So too his plea of volenti non fit injuria, a defence which requires proof that the deceased, with full knowledge of the nature and extent of the risk, freely and voluntarily agreed to incur it. Nothing of the kind was even attempted. A passenger who accepts a ride does not thereby consent to being driven negligently: Dann v Hamilton [1939] 1 KB 509.
40. In Janet Kaphiphe Ouma and Another v Marie Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, the court, citing Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997, held that where a defendant does no more than file a statement of defence and adduces no evidence in support of the assertions made in it, the plaintiff's evidence remains uncontroverted and the statements in the defence remain mere allegations. That is precisely the position here, and Sections 107 and 109 of the Evidence
Act, on which the Respondent so heavily relied, bear as much upon him as upon the Appellant.
(iii) The treatment of the evidence of PW2
41. The learned magistrate discounted the evidence of PW2 on four grounds: that she was not the investigating officer; that she did not visit the scene; that she availed no sketch maps; and that she did not produce the motor vehicle inspection reports. With respect, each of those grounds requires examination.
42. As to the first, the police abstract and the occurrence book are public documents within the meaning of Sections 79 and 80 of the Evidence Act. They may be produced by any officer serving at the station which holds them, whether or not he investigated the matter. That was the holding in John Kibicho Thirima v Emanuel Parsmei Mkoitiko [2017] eKLR, where the court observed that such documents are producible by any police officer serving at a police station, whether or not he was the investigating officer, because it is a matter of public knowledge that public officers are transferred from their stations from time to time while the public records remain. There was accordingly no legal impediment to PW2 producing the abstract, and none was taken at the trial.
43. As to the absence of a sketch plan, in Equator Distributors v Joel Muriu [2018] eKLR the Court of Appeal held that a police sketch map is prepared after the event, is not an eyewitness account, carries some probative value but is not binding on the trial court, and is but one item of evidence to be considered. Its absence is a matter going to weight; it is not fatal.
44. As to the motor vehicle inspection reports, no case of mechanical defect was ultimately pursued, and their absence is immaterial to the question whether the driver drove carelessly.
45. But there is a more fundamental difficulty with the way PW2's evidence was treated. The learned magistrate approached it as though the Appellant's case rested on the abstract alone. It did not. PW2 gave oral evidence, on oath, that she was referring to the police file and that from
it the driver of KDB 117J was liable; and in re-examination she stated in terms that KDB 117J was the vehicle that rammed into the other motor vehicle and caused the accident. That is evidence of the mechanism of the collision. Whatever weight it might ultimately bear, it was more than proof that a report had been made at a police station.
46. I recognize the force of the objection that PW2 was speaking from a file she did not compile, and that her attribution of blame was in a sense an opinion formed by another. Had that objection been taken at the trial, it would have called for a ruling. It was not taken. The evidence went in without objection. More significantly, the single assertion on which the Appellant's case on mechanism depended — that KDB 117J rammed into KBT 305K — was never challenged in cross-examination. Crossexamination was directed to four matters only: that PW2 had not visited the scene; the date the abstract was issued; that the traffic case was ongoing; and that she did not know how many passengers were in the Hilux. Not one question was put suggesting that the Hilux did not ram the Coaster, or that some other vehicle or agency was responsible, or that the driver of the Hilux was blameless.
47. A party who allows evidence to be given without objection, and who then declines to challenge its central assertion in cross-examination, cannot afterwards be heard to say that the assertion was worthless. In Nandwa v Kenya Kazi Limited [1988] KLR 488 the Court of Appeal held that where in the course of a trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence of the defendant, the issue will be decided in the plaintiff's favour unless the defendant provides an answer adequate to displace that inference. No answer of any kind was provided here.
48. As to the pending traffic case, I agree entirely with the learned magistrate that it proves nothing. A charge is an accusation, not a finding. The driver is presumed innocent until the traffic court says otherwise, and this court is not privy to the evidence in that case. I place no reliance whatever upon it, and I have reached the conclusions which follow leaving it wholly out of account.
(iv) The requirement of an eyewitness
49. The learned magistrate held that "for this question to be answered sufficiently, then it was incumbent for the Plaintiff to avail an eye witness to explain how the accident occurred". She founded that proposition on
Z O S and C A O (suing as the legal representatives in the estate of S A O (deceased)) v Amollo Stephen [2019] eKLR, cited in Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] eKLR.
50. With respect, that authority does not bear the weight placed upon it. What the court there said was that it was incumbent upon the appellant either to call an eyewitness who saw the accident take place, or to call the police from Bondo Police Station who investigated the accident to shed light on the results of the investigations and as to who was to blame. The formulation is disjunctive. It identifies two alternative routes by which a plaintiff who did not himself witness the accident may prove how it happened. It does not lay down that an eyewitness is indispensable, nor could it. For Section 143 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. A rule that a fatal accident claim must fail unless an eyewitness is produced would put compensation beyond the reach of every dependant whose breadwinner was killed on a lonely road, and would reward the very drivers who leave no witness behind. That is not and has never been the law.
51. In this case the Appellant took the second of the two routes. She called a police officer, who produced the official abstract and spoke to the contents of the official file. The learned magistrate then held that this route was closed because PW2 was not the investigating officer. In doing so she required, in substance, that the plaintiff satisfy both alternatives — an eyewitness and the investigating officer personally — and having found neither, dismissed the claim. That was, in my respectful view, to set the bar higher than the law sets it, and it was an error of principle.
(v) Res ipsa loquitur and the inference of negligence
52. The learned magistrate held, correctly, that the doctrine of res ipsa loquitur does not determine liability and does not relieve a plaintiff of the burden of proving the facts which give rise to it: Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR; Susan Kanini Mwangangi and Another v Patrick Mbithi Kavita [2019] Eklr.
53. But the doctrine is a rule of evidence, and where the facts which attract it are established it has real work to do. Its essence, as the Court of Appeal put it in Florence Mutheu Musembi, is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence. Its classic requirements are that the thing which caused the damage was under the management or control of the defendant or his servants, and that the occurrence is such as would not, in the ordinary course of things, happen if those having such control used proper care.
54. Both requirements are satisfied here. The vehicle in which the deceased was travelling was, upon the evidence, the Respondent's, driven by his driver or agent. And motor vehicles being driven with reasonable care upon a public highway do not, in the ordinary course of things, collide with other motor vehicles. Something went wrong. The Appellant, having proved that the deceased boarded the Respondent's vehicle alive and was carried out of it dying, had gone as far as the nature of the case permitted her to go.
55. At that point Section 112 of the Evidence Act came into play, and it did so against the Respondent, not for him. How the Responden
[...truncated]