(Being an appeal from the judgment and decree of Hon. M. Kivuti, SRM, in Baricho Magistrate’s Court Civil Case No. 115 of 2016 delivered on 29th July 2021)
Background
1. This appeal through the memorandum dated 3rd August 2021 is exopressed to be on both liability and assessment of damages. The appeal seeks to set aside the decree arising from the judgment of the trial court dated 29th July 2021. In the judgment the trial court dismissed the appellant’s suit for reasons that he had failed to prove that the respondents’ vehicle registration number GKB 088M was involved in the accident due to unclear facts and contradictions in the appellant’s case. The trial court found that the appellant had failed to discharge the burden of proof on a balance of probability that the respondents were liable for the accident.
2. All the same, the trial court went ahead, correctly so, and assessed general damages for pain, suffering and loss of amenities at KShs 70,000/= and special damages at KShs 2,550/= making a total of KShs 72,550/= which it indicated it would have awarded the appellant had he been successful on liability.
Grounds of appeal
3. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on nine grounds as follows:
a. The learned magistrate erred in law and in fact by dismissing the appellant’s suit against the respondents.
b. The learned magistrate misdirected herself in law and in fact by finding that the appellant had not proved his case against the respondent despite the overwhelming evidence led by the appellant.
c. The learned magistrate erred in law and in fact by failing to appreciate that the respondent was liable for the accident.
d. The learned magistrate erred in law and in fact by failing to address her mind on the evidence adduced and hence made an erroneous finding.
e. The learned magistrate misdirected herself in law and in fact by placing too much reliance on the respondent’s evidence whereas they did not adduce it.
f. The learned magistrate erred in law and in fact by failing to consider the totality of the evidence adduced at the trial.
g. The learned magistrate erred in law and in fact by failing to consider the parties’ written submissions.
h. The learned magistrate erred in law and in fact by failing to assess the damages that would have been awarded to the minor plaintiff as required by law.
i. The learned magistrate misdirected herself in law and in fact by failing to find that at the very least the respondent was liable for the accident.
4. It is apparent that ground number 8 is not well taken because as stated in paragraph 2 above, the learned trial magistrate assessed the damages that would have been payable had the claim on liability been successful.
Submissions
5. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondents which are considered in the analysis that follows.
Duty of the appellate court
6. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, 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 as held in the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and also in the cases cited by learned counsels for the parties of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). I have not found such a holding in the case of Kenya Power & Lighting Limited v Stella Mgeni [2018] KEHC 5896 (KLR) cited by learned counsel for the appellant.
Case before the trial court
7. Evidence before the trial court was given on 28th November 2019.
8. The witnesses for the appellant were PW 1, Nicholas Wanjohi Wamwea who said he responded to the minor immediately the accident occurred; PW 2, Beatrice Wanjiku Ndungu, the minor’s grandmother. She testified and adopted her witness statement recorded on 2nd September 2019. She did not witness the accident but she was called by her son Daniel Maina, the minor’s father about the accident. She went to Sagana hospital where the minor victim had been taken, shortly after the accident. She said that the minor’s father had subsequently passed on after the accident the subject of the case. What PW 2 said about the identification of the accident motor vehicle was hearsay and of no probative value.
9. PW 3, PC Dorcas Nyongesa of Sagana police station. Gave evidence by only producing the police abstract. She said that the investigating officer, IP Mwenda had since been transferred to Meru.
10. DW 1, Joshua Mutunga, the 3rd respondent was the only witness for the respondents. He also testified adopting his respective witness statement, filed alongside the defence pleadings, as his evidence in chief.
11. The victim of the accident A. M. M. was at the material time on 26th April 2016 aged 4 years, just a few days shy of his 5th birthday which according to his certificate of birth produced in evidence as exhibit 1 showed his date of birth as 13th May 2011.
12. PW 1, adopted his witness statement dated 7th October 2016. He recorded that he was herding cattle beside the road at Kabubii, Githiguya area along Kagio-Sagana road when suddenly a motor vehicle registration number GKB 088M veered off the road and knocked the victim, a boy child who was standing beside the road on the left side as one faces Sagana direction. PW 1 rushed to pick him but the victim’s father came from a homestead near the scene and took the victim. The motor vehicle that had knocked the boy had stopped a few metres away but on seeing people were gathering the driver sped off. The child was unconscious and was rushed to Sagana hospital. PW 1 later went to Sagana police station and recorded his statement there.
13. In his evidence-in-chief, PW 1 said that the weather was sunny and the scene was on a straight section of the road. In cross-examination he said that he was at a distance of about ten metres away from the scene. He said he was facing Sagana direction where the vehicle came from. He first heard a bang and when he went to the child he was bleeding and had injuries to the head and hands. He first said that he could not tell which part of the vehicle hit the child but clarified by saying that it was the front part. He said the motor vehicle was at high speed and it was white in colour.
14. In re-examination, PW 1 reiterated that the child was knocked by the front left part of the vehicle. He also said that he had recorded a statement with the police and it was part of the defence list of documents.
15. The other witness who gave evidence in relation to the accident was Joshua Mutunga, DW 1, the driver of the motor vehicle registration number GKB 088M. He adopted his witness statement recorded on 1st July 2019, about three years and two months after the alleged incident.
16. In the statement DW 1 recorded that he was driving from Embu along the Kagio-Sagana road with four state counsels on board who were from a training in Embu. Along the way, the vehicle was stopped by Government Vehicle Police Inspection or Check Unit. All of a sudden, a motorcycle carrying a man holding a child sped past them. It was immediately followed by another motorcycle with two pillion passengers which stopped by their vehicle and one passenger pointed at it and said in Swahili, “Ni hii. Ilikuwa ya white.” Translated to “it is this one. It was white.” Within no time, their vehicle was surrounded by about ten motorcyclists who appeared violent threatening to burn the government motor vehicle and lynch them.
17. The check-unit officers intervened and tried to disperse the crowd in vain. The officers escorted the driver and his passengers to Sagana police station, a few metres away. The motor cyclists followed them chanting that the vehicle had hit a small boy at Kagio market and sped off. DW 1 and his passengers recorded their statements at the police station. The vehicle was inspected the following day and it was found to have no accident damage.
18. DW 1 denied that he hit a child along the way and sped off. He denied in examination in chief, cross-examination and re-examination that he was involved in any accident at all along the road. He also said that where they had been stopped by the check-unit officers, there were several white vehicles.
19. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found that PW 1 had not indicated in his initial statement to the police the details of the motor vehicle allegedly involved in the accident yet he indicated it in his written statement later adopted as his evidence in chief. The learned trial magistrate also found contradictions in PW 1’s evidence when he initially testified that he could not tell the part of the vehicle that hit the child but changed and said it was the front part. Considering that the witness had said that he first heard a bang then the vehicle stopped a distance away after which the drive sped off, the learned trial magistrate was of the view that PW 1 could not have known which part of the vehicle hit the child.
20. She was also of the view that the child could have sustained the injuries elsewhere other than through a road traffic accident.
21. The learned trial magistrate also found that the person who made the report of the accident at Sagana police station, the minor’s father, was said to have been drunk and he did not know the motor vehicle registration number. However, this was hearsay evidence on which the learned trial magistrate should not have relied because the investigating officer, IP Mwenda to whom the minor’s father made the report and who allegedly made that observation did not testify in the case.
Analysis
22. I have considered the grounds of appeal filed herein, the submissions by learned counsels for the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the trial court was right in finding that the case for the appellant had not been proved on a balance of probability.
23. The appellant submits that the liability apportioned against the minor by the trial court was too high and that in arriving at its decision the trial court misapprehended the evidence adduced and applied the wrong principles.
24. In fact, the trial court did not apportion liability between the parties. The court found that the appellant had not proved that the respondents’ vehicle was involved in the accident and for that reason, liability had not been established at all against the respondents. It was not a case of who between the appellant and the respondent’s carried the higher blame for the accident.
25. The appellant submits that on liability the issues to be considered are occurrence of the accident, ownership of motor vehicle registration number GKB 088M and who was to blame for the accident.
26. The issues of ownership of the vehicle and who the authorized driver was, were not in contest, they were not issues for determination before the trial court and the same have not been raised as issues in this appeal. They therefore do not fall for determination by this court.
27. The issues of the occurrence of the accident and who was to blame will be considered concurrently.
28. It would appear that most of the submissions by the appellant on this issues got mixed-up with facts from a different case. I have pointed out above, for instance, that the issue before the trial court was not on apportionment of liability but whether or not the accident occurred in the manner alleged by the appellant. It therefore ought not to have been raised in the submissions.
29. A large portion of the submissions is on evidence that was never tendered before the trial court. For instance, learned counsel submits that this court should find that an accident involving the minor and motor vehicle registration number GKB 088M did occur because the evidence of PW 1 showed that an accident did occur on the material day involving the minor and motor vehicle registration number GKB 088M and further that DW 1, the driver of the said vehicle “confirmed that an accident did occur.” (emphasis mine). Learned counsel refers the court to page 127 of the record of appeal. I have looked at the same and I do not find such evidence. The evidence of DW 1 is at page 126 of the record of appeal and in his evidence in chief, cross-examination and re-examination, he maintained throughout that no accident occurred involving the motor vehicle he was driving GKB 088M.
30. Learned counsel for the respondents submits that the issues for determination by this court are whether the 1st and 3rd respondents were liable for the accident and if so the damages payable to the appellant and whether the trial court addressed itself to the issues.
31. Learned counsel submits further that the trial court properly analyzed the evidence and found that there was no concrete evidence tendered by the appellant and therefore dismissed the case. He has set out in the submissions the reasoning and findings of the trial court on the issues. He has cited the case of Lilian Birir & another v Ambrose Leamon [2016] KEHC 7116 (KLR) to support his submissions that there was no sufficient evidence to prove the case to the required standard.
32. The doubt expressed by the learned trial magistrate that the child had sustained injuries in a road traffic accident was not justified. There was uncontroverted evidence from PW 1 that he witnessed a road traffic accident involving the child. The fact that the accident occurred involving the minor was well covered by the evidence of PW 1.
33. The issue is contention was the identification of the accident motor vehicle. Did the appellant prove that the respondent’s motor vehicle registration number GKB 088M was the one that was involved in the accident with the minor?
34. The evidence tendered on that issue by the appellant was from PW 1 and the police abstract. These two pieces of evidence will be considered in turn.
35. Starting with the evidence of the police abstract produced by PW 3, it was her evidence that the accident was reported at the Sagana police station the same evening. There is also evidence of the police abstract having been issued with respect to that accident involving the child and the subject motor vehicle herein.
36. The learned trial magistrate wondered the basis upon which the police abstract and the P3 form were issued to the victim as it was not clear who had confirmed the registration details of the vehicle and that it knocked down the child. As the name indicates, a police abstract contains information abstracted from another source, that is, the occurrence book. I believe an occurrence book commonly referred to as (OB) is maintained at a police station under the provisions of section 49(3) of the National Police Service Act (Cap. 84) Laws of Kenya, which requires that police officers shall make a report of all daily occurrences and incidents encountered and make it available to their superior. Further section 73(3) of the Traffic Act (Cap. 403) Laws of Kenya provides that in the case of an accident if any injury has been caused to any person, dog or cattle, the driver shall report the accident at a police station or to a police officer as soon as reasonably possible, and in any case within twenty-four hours of the occurrence thereof.
37. In this case, there is evidence that the occurrence of an accident was reported at Sagana police station and that is why there was entry in the occurrence book and subsequent issuance of the police abstract. However, the circumstances under which the report was made are varied, depending on the appellant’s evidence and that of the respondents.
38. For the respondent, the evidence of DW 1 was that they only went to Sagana police station because boda boda riders were becoming rowdy and threatening to attack him and his passengers and damage the vehicle he was driving and which he had stopped at the police check-unit site. He did not go to the police station to report an accident because, according to him, he was not involved in any accident as was being alleged by the boda bodas at all. So, he was not acting under section 73(3) of the Traffic Act as set out above.
39. For the respondents therefore, there was no basis for the issuance of the police abstract indicating that the respondent’s motor vehicle had been involved in an accident.
40. On their part, the appellants’ position was that the vehicle had been involved in an accident with the minor.
41. Unfortunately, the police officer who recorded the report, IP Mwendwa, was not called as a witness. Instead, PC Dorcas Nyongesa from the same police station attended court and testified that she had been summoned to produce the police abstract to the court. She then narrated what was contained in the police abstract. In cross-examination, she said that she had not made available the police file or occurrence book in court as evidence. She said further that she could not tell whether investigations were conducted in the matter. However, nobody was blamed or charged for causing the accident.
42. It is apparent from the foregoing that the police abstract could not have been conclusive evidence of how the accident occurred and whether there was anybody to blame for the same.
43. The position of a police abstract in evidence was explained by the Court of Appeal in the case of Francisca Njeri Mwangi v James K. Mwangi & another [2015] KECA 459 (KLR) thus:
“Turning to the police abstract report which the judge said was not produced, this was another form filled and issued by the police. It was not central in proving liability. It merely gives the details entered about the road accident in issue but it, too, does not prove liability even as it contains the details of the motor vehicle involved and /or its owner. Again, as in the case of a P3, the evidence leading to whether someone was liable or not comes from the witnesses who may include the victim. We hasten to add however that P3 form and abstract reports should not be obtained and even produced. All we are saying is that the two documents are not central to prove liability.”
44. It follows from this decision and this court’s analysis of how a police abstract is made and issued that a police abstract cannot be the basis of a finding that the vehicle indicated therein was involved in an accident. The police abstract is information abstracted from a record of the initial report of an alleged accident and not conclusive evidence of the facts or fault of any of the parties indicated therein. The facts of the alleged accident will come from witnesses to the accident and the police investigations following the report. In this case, there was no evidence of police investigations and therefore no basis established on how and why the police abstract was issued and the details contained therein. What was contained in the police abstract was only an allegation that was to be proved by evidence of witnesses to the accident and/or police through investigations. Therefore, the police abstract produced in evidence by PW 3, showing that motor vehicle registration number GKB 088M was involved in an accident with the minor could not of itself be a basis to find that the respondent’s motor vehicle was involved in an accident with the minor as alleged by the appellant. The allegations in the police abstract that motor vehicle registration number GKB 088M was involved in the accident were denied by the driver of the vehicle DW 3. In that case, more evidence to support what was contained in the police abstract was required. The trial court was therefore correct in its finding on this issue.
45. The next issue for the court’s consideration is the evidence of the witnesses. These were PW 1 and DW 1.
46. I have found above that the evidence of PW 1 showed that the minor was involved in an accident on the road at the material time. The learned trial magistrate found that PW 1 did not immediately take note of the accident vehicle. This was from his own evidence that he first heard a bang then proceeded to where the child was lying on the road. I am satisfied that this was a correct finding. PW 1 said that he was looking after his cattle and so his eyes may not have been focused on the child and the vehicle on the road. It is apparent from his evidence that he did not see exactly how the accident occurred and he was only attracted in that direction by the bang. Secondly, there is no indication that he informed the father of the minor, who came to the scene almost immediately, the identity of the vehicle. Thirdly no such evidence is contained in his statement which he made to the police after the accident happened. His complete statement was as follows:
“I do recall very well that on 26/4/2026 at about 5.30 p.m. I was on the (sic) looking after the cattle, all over a sudden I heard big bang. I went to check whereby I found a child on the right side facing down. I crossed the road to the other side, I found the father of the child and I asked him the owner of the child. He told me that is his child. He took the child and went home. Later he boarded a m/c whereby they found the motor vehicle which did the accident…”
47. It is apparent from that statement that PW 1 did not inform the police that he had identified the vehicle causing the accident, not even mentioning that it bore a GK registration number. Therefore, his allegation in his witness statement recorded afterwards with the advocate for the appellant that the vehicle stopped for a while then sped off when a crowd started forming and therefore that he was able to get the registration number could not be true. He said that the child’s father boarded a m/c (meaning motor cycle) whereby they found the motor vehicle which did the accident. He did not however state at what point he learnt from the child’s father that the later had found the motor vehicle which had caused the accident and how the father had found out which vehicle it was.
48. It is unfortunate that the minor’s father passed away before he could testify in the matter. However, from the evidence of PW 1, it was apparent that the minor’s father had also not seen the accident vehicle, leave alone noting its registration number
49. On his part, in his evidence, DW 1, the driver of the vehicle denied ever being involved in any accident along the Kagio-Sagana road at all, leave alone with a child. He said that while he had stopped the vehicle where the check-unit officers had stopped it, he saw a man, whom he later identified at the police station as the child’s father passing on a motor cycle carrying the child. He was followed by a motor cycle that stopped and the occupants alleged that his vehicle had caused the accident.
50. The evidence of PW 1 and DW 1 shows that these events followed one another closely. PW 1 said that the child’s father boarded a motor cycle and they found the motor vehicle which had caused the accident. DW 1 says that indeed the child’s father passed them while being ferried on a motorcycle carrying the child and then those who were following him on a second motorcycle said that his vehicle was the one that had caused the accident.
51. However, none of those witnesses was called to testify on how they came to allege that the respondents’ vehicle was the one involved in the accident.
52. I am aware that even as this court re-considers and re-evaluates the evidence on record, it should be slow to upset the findings of fact reached by the trial court for reasons that it had the advantage of seeing the witnesses and determining their demeanor. This was expressed by the Court of Appeal in the case of Jabane v Olenja [1986] KECA 21 (KLR) 661, 664 thus:
“As regards the judge’s findings of fact as to the cause of the accident, Mr Dhanji, who led the case for the appellant, cited to us numerous authorities for his proposition that a court on appeal is not bound to follow the trial judge’s findings of fact if it is satisfactorily shown that he had failed to take into account circumstances or probabilities which exist, or if he had made a finding as regards the demeanour of the witnesses which is inconsistent with the totality of the evidence.
I accept this proposition, so far as it goes, and that this court does have the power to examine and re-evaluate the evidence and the findings of fact of the trial court in order to determine whether the conclusion reached on the evidence should stand – see–Peters v Sunday Post [1958] EA 424. More recently, however, this court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi v Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni v Kenya Bus Services (1982- 88) 1 KAR 870.”
53. On liability, it is submitted by learned counsel for the appellant that the learned trial magistrate did not properly analyze the evidence of the circumstances of the accident. That she misapprehended the evidence tendered at the trial.
54. I have pointed out above some misplaced submissions made by the appellant such as that the DW 1, the driver of the alleged accident vehicle had conceded that indeed the accident occurred when in fact his evidence was a total denial that the accident ever did occur as alleged by the appellant. There are more misplaced submissions under the heading of “who was to blame for the accident.” The following excerpts will demonstrate this:
a. “DW 1 admitted that the accident occurred however contested how the same occurred as he stated that the minor abruptly rushed onto the road and as a result hit him”
b. “… DW 1 in his adopted witness statement confirms that the minor appellant was knocked down and that he sustained injuries.”
c. “… DW 1 stated in examination in chief that at the time of the accident he saw the minor bruptly (sic) rush onto the road, in cross-examination he confirmed that he did not have any witnesses to back his facts but confirmed that he hit the minor with his front bumper and windscreen which was completely shattered.”
d. “DW 1 in exam in chief confirmed that that he driving at a low speed… in normal circumstances for the extensive damage caused to the suit motor vehicle that is a shattered windscreen a dent to the front bumper it means that the impact was high thereby indicating that the motor vehicle was a high speed (at pages 1 – 2 of the record of appeal.”
e. “… the suit motor vehicle rammed onto the minor appellant from the rear …”
55. These and other similar submissions by the appellant that are unrelated to the evidence tendered before the trial court of the case herein are extensive.
56. Considering the findings of this court that there was no evidence to prove the allegation that the respondent’s vehicle registration number GKB 088M was involved in the accident with the minor and coupled with the submissions which are based on facts which were not before the trial court, I find that the same cannot support the grounds raised herein that the trial court failed to properly analyse the evidence tendered or that it arrived at a wrong conclusion on the liability of the respondents.
57. For these reasons, I find that the learned trial magistrate’s findings on liability, that the same had not been proved on a balance of probability were based on a proper analysis of the evidence presented before the trial court and I find no reason to upset the same.
Determination
58. In the final analysis, the appeal which is basically on liability only is not successful and the trial court’s finding and determination dismissing the appellant’s case as not having been proved on a balance of probability is affirmed. The appeal is found to be without merit and the same is dismissed.
59. Each party will bear its own costs.
60. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams this 19th day of December 2025 in the presence of:
Ndung’u for the appellant.
Kung’u (Ms) h/b for Munene for the respondent.
Ummu h/b for Job: Court assistant.
Background
1. This appeal through the memorandum dated 3rd August 2021 is exopressed to be on both liability and assessment of damages. The appeal seeks to set aside the decree arising from the judgment of the trial court dated 29th July 2021. In the judgment the trial court dismissed the appellant’s suit for reasons that he had failed to prove that the respondents’ vehicle registration number GKB 088M was involved in the accident due to unclear facts and contradictions in the appellant’s case. The trial court found that the appellant had failed to discharge the burden of proof on a balance of probability that the respondents were liable for the accident.
2. All the same, the trial court went ahead, correctly so, and assessed general damages for pain, suffering and loss of amenities at KShs 70,000/= and special damages at KShs 2,550/= making a total of KShs 72,550/= which it indicated it would have awarded the appellant had he been successful on liability.
Grounds of appeal
3. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on nine grounds as follows:
a. The learned magistrate erred in law and in fact by dismissing the appellant’s suit against the respondents.
b. The learned magistrate misdirected herself in law and in fact by finding that the appellant had not proved his case against the respondent despite the overwhelming evidence led by the appellant.
c. The learned magistrate erred in law and in fact by failing to appreciate that the respondent was liable for the accident.
d. The learned magistrate erred in law and in fact by failing to address her mind on the evidence adduced and hence made an erroneous finding.
e. The learned magistrate misdirected herself in law and in fact by placing too much reliance on the respondent’s evidence whereas they did not adduce it.
f. The learned magistrate erred in law and in fact by failing to consider the totality of the evidence adduced at the trial.
g. The learned magistrate erred in law and in fact by failing to consider the parties’ written submissions.
h. The learned magistrate erred in law and in fact by failing to assess the damages that would have been awarded to the minor plaintiff as required by law.
i. The learned magistrate misdirected herself in law and in fact by failing to find that at the very least the respondent was liable for the accident.
4. It is apparent that ground number 8 is not well taken because as stated in paragraph 2 above, the learned trial magistrate assessed the damages that would have been payable had the claim on liability been successful.
Submissions
5. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondents which are considered in the analysis that follows.
Duty of the appellate court
6. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, 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 as held in the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and also in the cases cited by learned counsels for the parties of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). I have not found such a holding in the case of Kenya Power & Lighting Limited v Stella Mgeni [2018] KEHC 5896 (KLR) cited by learned counsel for the appellant.
Case before the trial court
7. Evidence before the trial court was given on 28th November 2019.
8. The witnesses for the appellant were PW 1, Nicholas Wanjohi Wamwea who said he responded to the minor immediately the accident occurred; PW 2, Beatrice Wanjiku Ndungu, the minor’s grandmother. She testified and adopted her witness statement recorded on 2nd September 2019. She did not witness the accident but she was called by her son Daniel Maina, the minor’s father about the accident. She went to Sagana hospital where the minor victim had been taken, shortly after the accident. She said that the minor’s father had subsequently passed on after the accident the subject of the case. What PW 2 said about the identification of the accident motor vehicle was hearsay and of no probative value.
9. PW 3, PC Dorcas Nyongesa of Sagana police station. Gave evidence by only producing the police abstract. She said that the investigating officer, IP Mwenda had since been transferred to Meru.
10. DW 1, Joshua Mutunga, the 3rd respondent was the only witness for the respondents. He also testified adopting his respective witness statement, filed alongside the defence pleadings, as his evidence in chief.
11. The victim of the accident A. M. M. was at the material time on 26th April 2016 aged 4 years, just a few days shy of his 5th birthday which according to his certificate of birth produced in evidence as exhibit 1 showed his date of birth as 13th May 2011.
12. PW 1, adopted his witness statement dated 7th October 2016. He recorded that he was herding cattle beside the road at Kabubii, Githiguya area along Kagio-Sagana road when suddenly a motor vehicle registration number GKB 088M veered off the road and knocked the victim, a boy child who was standing beside the road on the left side as one faces Sagana direction. PW 1 rushed to pick him but the victim’s father came from a homestead near the scene and took the victim. The motor vehicle that had knocked the boy had stopped a few metres away but on seeing people were gathering the driver sped off. The child was unconscious and was rushed to Sagana hospital. PW 1 later went to Sagana police station and recorded his statement there.
13. In his evidence-in-chief, PW 1 said that the weather was sunny and the scene was on a straight section of the road. In cross-examination he said that he was at a distance of about ten metres away from the scene. He said he was facing Sagana direction where the vehicle came from. He first heard a bang and when he went to the child he was bleeding and had injuries to the head and hands. He first said that he could not tell which part of the vehicle hit the child but clarified by saying that it was the front part. He said the motor vehicle was at high speed and it was white in colour.
14. In re-examination, PW 1 reiterated that the child was knocked by the front left part of the vehicle. He also said that he had recorded a statement with the police and it was part of the defence list of documents.
15. The other witness who gave evidence in relation to the accident was Joshua Mutunga, DW 1, the driver of the motor vehicle registration number GKB 088M. He adopted his witness statement recorded on 1st July 2019, about three years and two months after the alleged incident.
16. In the statement DW 1 recorded that he was driving from Embu along the Kagio-Sagana road with four state counsels on board who were from a training in Embu. Along the way, the vehicle was stopped by Government Vehicle Police Inspection or Check Unit. All of a sudden, a motorcycle carrying a man holding a child sped past them. It was immediately followed by another motorcycle with two pillion passengers which stopped by their vehicle and one passenger pointed at it and said in Swahili, “Ni hii. Ilikuwa ya white.” Translated to “it is this one. It was white.” Within no time, their vehicle was surrounded by about ten motorcyclists who appeared violent threatening to burn the government motor vehicle and lynch them.
17. The check-unit officers intervened and tried to disperse the crowd in vain. The officers escorted the driver and his passengers to Sagana police station, a few metres away. The motor cyclists followed them chanting that the vehicle had hit a small boy at Kagio market and sped off. DW 1 and his passengers recorded their statements at the police station. The vehicle was inspected the following day and it was found to have no accident damage.
18. DW 1 denied that he hit a child along the way and sped off. He denied in examination in chief, cross-examination and re-examination that he was involved in any accident at all along the road. He also said that where they had been stopped by the check-unit officers, there were several white vehicles.
19. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found that PW 1 had not indicated in his initial statement to the police the details of the motor vehicle allegedly involved in the accident yet he indicated it in his written statement later adopted as his evidence in chief. The learned trial magistrate also found contradictions in PW 1’s evidence when he initially testified that he could not tell the part of the vehicle that hit the child but changed and said it was the front part. Considering that the witness had said that he first heard a bang then the vehicle stopped a distance away after which the drive sped off, the learned trial magistrate was of the view that PW 1 could not have known which part of the vehicle hit the child.
20. She was also of the view that the child could have sustained the injuries elsewhere other than through a road traffic accident.
21. The learned trial magistrate also found that the person who made the report of the accident at Sagana police station, the minor’s father, was said to have been drunk and he did not know the motor vehicle registration number. However, this was hearsay evidence on which the learned trial magistrate should not have relied because the investigating officer, IP Mwenda to whom the minor’s father made the report and who allegedly made that observation did not testify in the case.
Analysis
22. I have considered the grounds of appeal filed herein, the submissions by learned counsels for the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the trial court was right in finding that the case for the appellant had not been proved on a balance of probability.
23. The appellant submits that the liability apportioned against the minor by the trial court was too high and that in arriving at its decision the trial court misapprehended the evidence adduced and applied the wrong principles.
24. In fact, the trial court did not apportion liability between the parties. The court found that the appellant had not proved that the respondents’ vehicle was involved in the accident and for that reason, liability had not been established at all against the respondents. It was not a case of who between the appellant and the respondent’s carried the higher blame for the accident.
25. The appellant submits that on liability the issues to be considered are occurrence of the accident, ownership of motor vehicle registration number GKB 088M and who was to blame for the accident.
26. The issues of ownership of the vehicle and who the authorized driver was, were not in contest, they were not issues for determination before the trial court and the same have not been raised as issues in this appeal. They therefore do not fall for determination by this court.
27. The issues of the occurrence of the accident and who was to blame will be considered concurrently.
28. It would appear that most of the submissions by the appellant on this issues got mixed-up with facts from a different case. I have pointed out above, for instance, that the issue before the trial court was not on apportionment of liability but whether or not the accident occurred in the manner alleged by the appellant. It therefore ought not to have been raised in the submissions.
29. A large portion of the submissions is on evidence that was never tendered before the trial court. For instance, learned counsel submits that this court should find that an accident involving the minor and motor vehicle registration number GKB 088M did occur because the evidence of PW 1 showed that an accident did occur on the material day involving the minor and motor vehicle registration number GKB 088M and further that DW 1, the driver of the said vehicle “confirmed that an accident did occur.” (emphasis mine). Learned counsel refers the court to page 127 of the record of appeal. I have looked at the same and I do not find such evidence. The evidence of DW 1 is at page 126 of the record of appeal and in his evidence in chief, cross-examination and re-examination, he maintained throughout that no accident occurred involving the motor vehicle he was driving GKB 088M.
30. Learned counsel for the respondents submits that the issues for determination by this court are whether the 1st and 3rd respondents were liable for the accident and if so the damages payable to the appellant and whether the trial court addressed itself to the issues.
31. Learned counsel submits further that the trial court properly analyzed the evidence and found that there was no concrete evidence tendered by the appellant and therefore dismissed the case. He has set out in the submissions the reasoning and findings of the trial court on the issues. He has cited the case of Lilian Birir & another v Ambrose Leamon [2016] KEHC 7116 (KLR) to support his submissions that there was no sufficient evidence to prove the case to the required standard.
32. The doubt expressed by the learned trial magistrate that the child had sustained injuries in a road traffic accident was not justified. There was uncontroverted evidence from PW 1 that he witnessed a road traffic accident involving the child. The fact that the accident occurred involving the minor was well covered by the evidence of PW 1.
33. The issue is contention was the identification of the accident motor vehicle. Did the appellant prove that the respondent’s motor vehicle registration number GKB 088M was the one that was involved in the accident with the minor?
34. The evidence tendered on that issue by the appellant was from PW 1 and the police abstract. These two pieces of evidence will be considered in turn.
35. Starting with the evidence of the police abstract produced by PW 3, it was her evidence that the accident was reported at the Sagana police station the same evening. There is also evidence of the police abstract having been issued with respect to that accident involving the child and the subject motor vehicle herein.
36. The learned trial magistrate wondered the basis upon which the police abstract and the P3 form were issued to the victim as it was not clear who had confirmed the registration details of the vehicle and that it knocked down the child. As the name indicates, a police abstract contains information abstracted from another source, that is, the occurrence book. I believe an occurrence book commonly referred to as (OB) is maintained at a police station under the provisions of section 49(3) of the National Police Service Act (Cap. 84) Laws of Kenya, which requires that police officers shall make a report of all daily occurrences and incidents encountered and make it available to their superior. Further section 73(3) of the Traffic Act (Cap. 403) Laws of Kenya provides that in the case of an accident if any injury has been caused to any person, dog or cattle, the driver shall report the accident at a police station or to a police officer as soon as reasonably possible, and in any case within twenty-four hours of the occurrence thereof.
37. In this case, there is evidence that the occurrence of an accident was reported at Sagana police station and that is why there was entry in the occurrence book and subsequent issuance of the police abstract. However, the circumstances under which the report was made are varied, depending on the appellant’s evidence and that of the respondents.
38. For the respondent, the evidence of DW 1 was that they only went to Sagana police station because boda boda riders were becoming rowdy and threatening to attack him and his passengers and damage the vehicle he was driving and which he had stopped at the police check-unit site. He did not go to the police station to report an accident because, according to him, he was not involved in any accident as was being alleged by the boda bodas at all. So, he was not acting under section 73(3) of the Traffic Act as set out above.
39. For the respondents therefore, there was no basis for the issuance of the police abstract indicating that the respondent’s motor vehicle had been involved in an accident.
40. On their part, the appellants’ position was that the vehicle had been involved in an accident with the minor.
41. Unfortunately, the police officer who recorded the report, IP Mwendwa, was not called as a witness. Instead, PC Dorcas Nyongesa from the same police station attended court and testified that she had been summoned to produce the police abstract to the court. She then narrated what was contained in the police abstract. In cross-examination, she said that she had not made available the police file or occurrence book in court as evidence. She said further that she could not tell whether investigations were conducted in the matter. However, nobody was blamed or charged for causing the accident.
42. It is apparent from the foregoing that the police abstract could not have been conclusive evidence of how the accident occurred and whether there was anybody to blame for the same.
43. The position of a police abstract in evidence was explained by the Court of Appeal in the case of Francisca Njeri Mwangi v James K. Mwangi & another [2015] KECA 459 (KLR) thus:
“Turning to the police abstract report which the judge said was not produced, this was another form filled and issued by the police. It was not central in proving liability. It merely gives the details entered about the road accident in issue but it, too, does not prove liability even as it contains the details of the motor vehicle involved and /or its owner. Again, as in the case of a P3, the evidence leading to whether someone was liable or not comes from the witnesses who may include the victim. We hasten to add however that P3 form and abstract reports should not be obtained and even produced. All we are saying is that the two documents are not central to prove liability.”
44. It follows from this decision and this court’s analysis of how a police abstract is made and issued that a police abstract cannot be the basis of a finding that the vehicle indicated therein was involved in an accident. The police abstract is information abstracted from a record of the initial report of an alleged accident and not conclusive evidence of the facts or fault of any of the parties indicated therein. The facts of the alleged accident will come from witnesses to the accident and the police investigations following the report. In this case, there was no evidence of police investigations and therefore no basis established on how and why the police abstract was issued and the details contained therein. What was contained in the police abstract was only an allegation that was to be proved by evidence of witnesses to the accident and/or police through investigations. Therefore, the police abstract produced in evidence by PW 3, showing that motor vehicle registration number GKB 088M was involved in an accident with the minor could not of itself be a basis to find that the respondent’s motor vehicle was involved in an accident with the minor as alleged by the appellant. The allegations in the police abstract that motor vehicle registration number GKB 088M was involved in the accident were denied by the driver of the vehicle DW 3. In that case, more evidence to support what was contained in the police abstract was required. The trial court was therefore correct in its finding on this issue.
45. The next issue for the court’s consideration is the evidence of the witnesses. These were PW 1 and DW 1.
46. I have found above that the evidence of PW 1 showed that the minor was involved in an accident on the road at the material time. The learned trial magistrate found that PW 1 did not immediately take note of the accident vehicle. This was from his own evidence that he first heard a bang then proceeded to where the child was lying on the road. I am satisfied that this was a correct finding. PW 1 said that he was looking after his cattle and so his eyes may not have been focused on the child and the vehicle on the road. It is apparent from his evidence that he did not see exactly how the accident occurred and he was only attracted in that direction by the bang. Secondly, there is no indication that he informed the father of the minor, who came to the scene almost immediately, the identity of the vehicle. Thirdly no such evidence is contained in his statement which he made to the police after the accident happened. His complete statement was as follows:
“I do recall very well that on 26/4/2026 at about 5.30 p.m. I was on the (sic) looking after the cattle, all over a sudden I heard big bang. I went to check whereby I found a child on the right side facing down. I crossed the road to the other side, I found the father of the child and I asked him the owner of the child. He told me that is his child. He took the child and went home. Later he boarded a m/c whereby they found the motor vehicle which did the accident…”
47. It is apparent from that statement that PW 1 did not inform the police that he had identified the vehicle causing the accident, not even mentioning that it bore a GK registration number. Therefore, his allegation in his witness statement recorded afterwards with the advocate for the appellant that the vehicle stopped for a while then sped off when a crowd started forming and therefore that he was able to get the registration number could not be true. He said that the child’s father boarded a m/c (meaning motor cycle) whereby they found the motor vehicle which did the accident. He did not however state at what point he learnt from the child’s father that the later had found the motor vehicle which had caused the accident and how the father had found out which vehicle it was.
48. It is unfortunate that the minor’s father passed away before he could testify in the matter. However, from the evidence of PW 1, it was apparent that the minor’s father had also not seen the accident vehicle, leave alone noting its registration number
49. On his part, in his evidence, DW 1, the driver of the vehicle denied ever being involved in any accident along the Kagio-Sagana road at all, leave alone with a child. He said that while he had stopped the vehicle where the check-unit officers had stopped it, he saw a man, whom he later identified at the police station as the child’s father passing on a motor cycle carrying the child. He was followed by a motor cycle that stopped and the occupants alleged that his vehicle had caused the accident.
50. The evidence of PW 1 and DW 1 shows that these events followed one another closely. PW 1 said that the child’s father boarded a motor cycle and they found the motor vehicle which had caused the accident. DW 1 says that indeed the child’s father passed them while being ferried on a motorcycle carrying the child and then those who were following him on a second motorcycle said that his vehicle was the one that had caused the accident.
51. However, none of those witnesses was called to testify on how they came to allege that the respondents’ vehicle was the one involved in the accident.
52. I am aware that even as this court re-considers and re-evaluates the evidence on record, it should be slow to upset the findings of fact reached by the trial court for reasons that it had the advantage of seeing the witnesses and determining their demeanor. This was expressed by the Court of Appeal in the case of Jabane v Olenja [1986] KECA 21 (KLR) 661, 664 thus:
“As regards the judge’s findings of fact as to the cause of the accident, Mr Dhanji, who led the case for the appellant, cited to us numerous authorities for his proposition that a court on appeal is not bound to follow the trial judge’s findings of fact if it is satisfactorily shown that he had failed to take into account circumstances or probabilities which exist, or if he had made a finding as regards the demeanour of the witnesses which is inconsistent with the totality of the evidence.
I accept this proposition, so far as it goes, and that this court does have the power to examine and re-evaluate the evidence and the findings of fact of the trial court in order to determine whether the conclusion reached on the evidence should stand – see–Peters v Sunday Post [1958] EA 424. More recently, however, this court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi v Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni v Kenya Bus Services (1982- 88) 1 KAR 870.”
53. On liability, it is submitted by learned counsel for the appellant that the learned trial magistrate did not properly analyze the evidence of the circumstances of the accident. That she misapprehended the evidence tendered at the trial.
54. I have pointed out above some misplaced submissions made by the appellant such as that the DW 1, the driver of the alleged accident vehicle had conceded that indeed the accident occurred when in fact his evidence was a total denial that the accident ever did occur as alleged by the appellant. There are more misplaced submissions under the heading of “who was to blame for the accident.” The following excerpts will demonstrate this:
a. “DW 1 admitted that the accident occurred however contested how the same occurred as he stated that the minor abruptly rushed onto the road and as a result hit him”
b. “… DW 1 in his adopted witness statement confirms that the minor appellant was knocked down and that he sustained injuries.”
c. “… DW 1 stated in examination in chief that at the time of the accident he saw the minor bruptly (sic) rush onto the road, in cross-examination he confirmed that he did not have any witnesses to back his facts but confirmed that he hit the minor with his front bumper and windscreen which was completely shattered.”
d. “DW 1 in exam in chief confirmed that that he driving at a low speed… in normal circumstances for the extensive damage caused to the suit motor vehicle that is a shattered windscreen a dent to the front bumper it means that the impact was high thereby indicating that the motor vehicle was a high speed (at pages 1 – 2 of the record of appeal.”
e. “… the suit motor vehicle rammed onto the minor appellant from the rear …”
55. These and other similar submissions by the appellant that are unrelated to the evidence tendered before the trial court of the case herein are extensive.
56. Considering the findings of this court that there was no evidence to prove the allegation that the respondent’s vehicle registration number GKB 088M was involved in the accident with the minor and coupled with the submissions which are based on facts which were not before the trial court, I find that the same cannot support the grounds raised herein that the trial court failed to properly analyse the evidence tendered or that it arrived at a wrong conclusion on the liability of the respondents.
57. For these reasons, I find that the learned trial magistrate’s findings on liability, that the same had not been proved on a balance of probability were based on a proper analysis of the evidence presented before the trial court and I find no reason to upset the same.
Determination
58. In the final analysis, the appeal which is basically on liability only is not successful and the trial court’s finding and determination dismissing the appellant’s case as not having been proved on a balance of probability is affirmed. The appeal is found to be without merit and the same is dismissed.
59. Each party will bear its own costs.
60. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams this 19th day of December 2025 in the presence of:
Ndung’u for the appellant.
Kung’u (Ms) h/b for Munene for the respondent.
Ummu h/b for Job: Court assistant.