1. The appellant brings this appeal through a memorandum of appeal dated 16/2/2024. The record of appeal was filed on 16/2/2024.
2. This appeal is restricted to the issue of liability. It arises from the judgment of the trial court dated 19/1/2024 in a suit by the appellant in a plaint amended on 4/2/2022 against the respondents claiming compensation in general and special damages for injuries sustained by the appellant in a road traffic accident on 27/6/2017 involving the appellant as a pillion passenger on a motor cycle whose registration number was not traced and the appellants’ motor vehicle registration number KCK 580W. The 1st defendant was sued as the driver of the said vehicle and agent of the 2nd defendant. The 2nd respondent was sued as the registered and/or beneficial owner of the accident motor vehicle.
3. The case was defended by the respondents through a statement of defence dated 21/11/2022. They both denied the appellant’s claim and put him to strict proof.
4. The appellant called 3 witnesses to support his case. They all testified on 5/10/2023.
5. PW 3, Alfan Salim Mwakiza, the appellant, was the plaintiff in the trial court. It was the appellant’s case through his pleadings, witness statements dated 6/11/2019 adopted as evidence in court and his testimony in court that on 27/6/2017 he was travelling as a fare paying passenger on board an unknown motor cycle from Ukunda heading towards Beach road. At Palm Beach hospital area motor vehicle registration number KCK 580W hit the motor cycle he was travelling on from the rear as it was overtaking it. As a result of the impact, the motor cycle veered off the road and he sustained a fracture of his left tibia fibula. He blamed the defendants for causing the accident.
6. In cross-examination the appellant said that the vehicle was going towards Beach road side then did U-turn suddenly. He explained further that they the motor cycle got near the vehicle as it did a U-turn suddenly without indicating that it was going to turn.
7. PW 2, PC Dominic Asumwa of Diani police station was the investigating officer. He went to the scene of the accident after it was reported at the police station by members of the public. He said that the driver of the accident vehicle had disappeared and changed his phone number and could not be traced to record a statement. The motor cycle and the rider were also not traced.
8. According to PW 2, the driver of the motor vehicle, Nissan Note was coming from Ukunda towards Diani Beach direction and when he reached Palm Beach hospital area he suddenly did a U-turn without indicating, in order to go back to the direction he had come from. In the process, he hit the motor cycle which was moved from the road.
9. In cross-examination, PW 2 said that there was a headlamp of a motorcycle at the scene. He also said that he could not tell what the point of impact for the motor cycle as it had been removed before he arrived at the scene. The point of impact for the vehicle was the front bumper, almost in the middle but towards the left side. He said that the motor vehicle and the motor cycle were headed in the same direction.
10. PW 1, Dr. George Otieno examined the appellant and prepared a medical report dated 31/10/2019 (Exh. 1), some two years and four months after the accident. He testified that x-ray taken of the appellant’s injury showed a comminuted fracture proximal left tibia fibula with marked swelling. He assessed the injury as grievous harm.
11. After trial the learned trial magistrate found on the issue of liability that the same had not been proved and dismissed the case.
12. The appellant was dissatisfied with that decision and now appeals to this court on the following grounds:
a. the learned magistrate erred in law and in fact in holding that the appellant did not prove his case on a balance of probability.
b. the learned magistrate erred in law and in fact by ignoring the appellant’s evidence on record as to the circumstances of the accident.
c. the learned magistrate erred in law and in fact by failing to appreciate that the respondents did not challenge the appellant’s evidence.
d. the trial court erred in law and in fact in failing to appreciate that no liability can attach to a passenger.
e. the learned trial magistrate erred in law and in fact in holding that it is the rider of the unknown motorcycle who was to blame for the accident whereas the respondent never raised a defence of contributory negligence.
13. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court delivered on 19/1/2024 and enter judgment in favour of the appellant.
14. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
15. Learned counsel for the appellant summed up the grounds of appeal in two, taking grounds 1,2 and 3 together then grounds 4 and 5 together. In urging those grounds, he cited various authorities. In William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 (KLR), Joseph Muthuri v Nicholas Kinoti Kibera [2002] eKLR on what constitutes a balance of probability.
16. He also submitted the any inconsistencies and contradictions in the plaintiff’s evidence were not material to warrant a dismissal of the case. He also cited the case of Philip Nzaka Watu v Republic [2016]eKLR where the Court of Appeal considered the issue of inconsistencies and discrepancies in evidence.
17. I do not find the submission by learned counsel for the appellant on failure by the respondent to join the motor cycle rider as a party to the suit to be relevant to the appeal. There was no evidence at all that the motor cycle rider was to blame for the accident and what the learned trial magistrate was alluding to was only a supposition.
18. Learned counsel for the respondent submitted that the only issue for determination was whether the learned trial magistrate applied the proper principles in dismissing the appellant’s case.
19. Learned counsel set out the principles which guide the circumstances under which an appellate court can justifiably interfere with a finding of fact by the trial court being:
a. The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record
b. The trial court misapprehended the evidence in some material respect
c. The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor
d. The trial Magistrate failed to take account of a particular circumstance or probability material to an estimate of the evidence
e. The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally
20. Learned counsel cited various cases to support his submissions. He referred to the cases of Ephantus Mwangi And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR on the above principles.
21. Learned counsel submitted that the appellant failed to prove negligence on the part of the respondents even as their pleadings remained unsupported by evidence. He relied on section 107 of the Evidence Act (Cap. 80) Laws of Kenya and the cases of Joseph Wabukho Mbayi v Frida Lwile Onyango [2019] eKLR and Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR. In the later case the High Court in considering uncontroverted evidence said:
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not’’
22. I have considered the record of appeal, the grounds of appeal and the submissions by learned counsels for the parties.
23. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
24. The learned trial magistrate found that the appellant’s evidence on how the accident occurred was contradictory because his evidence-in-chief was that the motor vehicle was behind the motor cycle with both headed in the same direction towards Beach road. That the motor vehicle tried to overtake the motor cycle and it was at that point that it hit the motor cycle and it veered off the road. But that in cross-examination, the appellant’s story changed and he said that the motor cycle was the one following the vehicle and that the vehicle did a sudden U-turn without indicating and the motor cycle presumably rammed it.
25. The learned magistrate also faulted the investigating officer’s evidence wondering how a vehicle that was behind the motor cycle and headed in the same direction could have made a sudden U-turn and hit the motor cycle. The learned trial magistrate also wondered how the point of impact on the motor vehicle could have been towards the middle of the front bumper while making a U-turn since the U-turn would have been on the other side of the road?
26. The learned trial magistrate then tried to formulate how the accident could have occurred, according to her own appreciation of the evidence.
27. As to whether contradictions, discrepancies and inconsistencies in the evidence of a witness are material in the case of Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.”
28. On the same issue the Court of Appeal further adopted the finding of the Tanzanian Court of Appeal in Dickson Elia Nsamba Shapwata & another V. The Republic, CR. APP. NO. 92 OF 2007 where it held that:-
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
29. With respect to the learned trial magistrate, I think her appreciation of the evidence tendered was not in line with what was said and her finding that the contradictions by the appellant. were material so as to affect his veracity was not well founded. First of all, the appellant and the investigating officer were in agreement that the driver of the motor vehicle was to blame for the accident for making a U-turn on the road suddenly and without indicating and this is what caused the accident. The appellant pleaded in the amended plaint that the motor vehicle hit the motor cycle from the rear causing the motor cycle to veer off the road. In his witness statement, he went further and stated that “… motor vehicle registration number KCK 580W hit the motor cycle…from the rear as it was overtaking it and as a result the motor cycle…veered off the road…”
30. The appellant conceded in cross-examination that he could not tell the difference between overtaking and making a U-turn even as he had used the terms in his evidence. However, his lack of knowledge on the difference between the two was supplied by an expert in that area, the traffic police officer, PW2 who upon investigations found that what the driver was doing was a U-turn.
31. In cross-examination, PW 2 said that all along the driver of the vehicle had kept to the left lane until he suddenly made a U-turn to go back where he was coming from and this is what caused the collision.
32. The respondents on their part did not call any witness to support the averments in their pleadings and so the same cannot be considered as evidence to find that the motor cycle rider was to blame for the accident to any extend. In the case of North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi [2019] KEHC 10180 (KLR) where the burden of proof in civil matters was discussed and the effect of not calling a witness to support a party’s case, that the party’s pleadings are not to be taken as evidence but mere statements with no probative value.
33. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
34. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
35. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
36. The appellant presented evidence by way of witness statements and testimony that the driver of the vehicle made a sudden U-turn without indicating and caused the accident to occur. He was supported in that respect by the investigating officer. The appellant was an eye-witness to the accident. The respondents did not tender any evidence to discount what the appellant said..
37. There is no dispute that there was a collision between the respondents’ vehicle and the motor cycle. The accident indeed happened. The appellant came forward and gave his version of what happened. There is no other evidence to challenge that given by the appellant and his witness. The evidence that the vehicle driver suddenly and without indicating made U-turn was not challenged. That in itself was negligent on the driver’s part. It is very logical that when the driver made a sudden U-turn in the road, the motor cycle rider tried to move towards the far right in order to pass it but in the process the vehicle hit the motor cycle causing it to veer off the road. That would clearly explain the point of impact on the vehicle’s front bumper towards the middle.
38. I therefore, with respect, set aside the finding of the learned trial magistrate on the issue of liability and make a finding that the appellant proved his case on a balance of probability that the driver of the vehicle was negligent in his manner of driving and thus caused the accident. The 1st defendant as driver of the vehicle was wholly to blame for the accident and the 2nd defendant as owner is vicariously liable for the same.
39. Since there was no appeal on the issue of assessment of damages, the same will remain as determined by the learned trial magistrate.
40. The respondents shall bear the costs of the appeal.
41. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 15th of January 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mkabana (Ms) Appellants.
Kirimi for the Respondent.
Daniel Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
2. This appeal is restricted to the issue of liability. It arises from the judgment of the trial court dated 19/1/2024 in a suit by the appellant in a plaint amended on 4/2/2022 against the respondents claiming compensation in general and special damages for injuries sustained by the appellant in a road traffic accident on 27/6/2017 involving the appellant as a pillion passenger on a motor cycle whose registration number was not traced and the appellants’ motor vehicle registration number KCK 580W. The 1st defendant was sued as the driver of the said vehicle and agent of the 2nd defendant. The 2nd respondent was sued as the registered and/or beneficial owner of the accident motor vehicle.
3. The case was defended by the respondents through a statement of defence dated 21/11/2022. They both denied the appellant’s claim and put him to strict proof.
4. The appellant called 3 witnesses to support his case. They all testified on 5/10/2023.
5. PW 3, Alfan Salim Mwakiza, the appellant, was the plaintiff in the trial court. It was the appellant’s case through his pleadings, witness statements dated 6/11/2019 adopted as evidence in court and his testimony in court that on 27/6/2017 he was travelling as a fare paying passenger on board an unknown motor cycle from Ukunda heading towards Beach road. At Palm Beach hospital area motor vehicle registration number KCK 580W hit the motor cycle he was travelling on from the rear as it was overtaking it. As a result of the impact, the motor cycle veered off the road and he sustained a fracture of his left tibia fibula. He blamed the defendants for causing the accident.
6. In cross-examination the appellant said that the vehicle was going towards Beach road side then did U-turn suddenly. He explained further that they the motor cycle got near the vehicle as it did a U-turn suddenly without indicating that it was going to turn.
7. PW 2, PC Dominic Asumwa of Diani police station was the investigating officer. He went to the scene of the accident after it was reported at the police station by members of the public. He said that the driver of the accident vehicle had disappeared and changed his phone number and could not be traced to record a statement. The motor cycle and the rider were also not traced.
8. According to PW 2, the driver of the motor vehicle, Nissan Note was coming from Ukunda towards Diani Beach direction and when he reached Palm Beach hospital area he suddenly did a U-turn without indicating, in order to go back to the direction he had come from. In the process, he hit the motor cycle which was moved from the road.
9. In cross-examination, PW 2 said that there was a headlamp of a motorcycle at the scene. He also said that he could not tell what the point of impact for the motor cycle as it had been removed before he arrived at the scene. The point of impact for the vehicle was the front bumper, almost in the middle but towards the left side. He said that the motor vehicle and the motor cycle were headed in the same direction.
10. PW 1, Dr. George Otieno examined the appellant and prepared a medical report dated 31/10/2019 (Exh. 1), some two years and four months after the accident. He testified that x-ray taken of the appellant’s injury showed a comminuted fracture proximal left tibia fibula with marked swelling. He assessed the injury as grievous harm.
11. After trial the learned trial magistrate found on the issue of liability that the same had not been proved and dismissed the case.
12. The appellant was dissatisfied with that decision and now appeals to this court on the following grounds:
a. the learned magistrate erred in law and in fact in holding that the appellant did not prove his case on a balance of probability.
b. the learned magistrate erred in law and in fact by ignoring the appellant’s evidence on record as to the circumstances of the accident.
c. the learned magistrate erred in law and in fact by failing to appreciate that the respondents did not challenge the appellant’s evidence.
d. the trial court erred in law and in fact in failing to appreciate that no liability can attach to a passenger.
e. the learned trial magistrate erred in law and in fact in holding that it is the rider of the unknown motorcycle who was to blame for the accident whereas the respondent never raised a defence of contributory negligence.
13. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court delivered on 19/1/2024 and enter judgment in favour of the appellant.
14. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
15. Learned counsel for the appellant summed up the grounds of appeal in two, taking grounds 1,2 and 3 together then grounds 4 and 5 together. In urging those grounds, he cited various authorities. In William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 (KLR), Joseph Muthuri v Nicholas Kinoti Kibera [2002] eKLR on what constitutes a balance of probability.
16. He also submitted the any inconsistencies and contradictions in the plaintiff’s evidence were not material to warrant a dismissal of the case. He also cited the case of Philip Nzaka Watu v Republic [2016]eKLR where the Court of Appeal considered the issue of inconsistencies and discrepancies in evidence.
17. I do not find the submission by learned counsel for the appellant on failure by the respondent to join the motor cycle rider as a party to the suit to be relevant to the appeal. There was no evidence at all that the motor cycle rider was to blame for the accident and what the learned trial magistrate was alluding to was only a supposition.
18. Learned counsel for the respondent submitted that the only issue for determination was whether the learned trial magistrate applied the proper principles in dismissing the appellant’s case.
19. Learned counsel set out the principles which guide the circumstances under which an appellate court can justifiably interfere with a finding of fact by the trial court being:
a. The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record
b. The trial court misapprehended the evidence in some material respect
c. The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor
d. The trial Magistrate failed to take account of a particular circumstance or probability material to an estimate of the evidence
e. The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally
20. Learned counsel cited various cases to support his submissions. He referred to the cases of Ephantus Mwangi And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR on the above principles.
21. Learned counsel submitted that the appellant failed to prove negligence on the part of the respondents even as their pleadings remained unsupported by evidence. He relied on section 107 of the Evidence Act (Cap. 80) Laws of Kenya and the cases of Joseph Wabukho Mbayi v Frida Lwile Onyango [2019] eKLR and Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR. In the later case the High Court in considering uncontroverted evidence said:
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not’’
22. I have considered the record of appeal, the grounds of appeal and the submissions by learned counsels for the parties.
23. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
24. The learned trial magistrate found that the appellant’s evidence on how the accident occurred was contradictory because his evidence-in-chief was that the motor vehicle was behind the motor cycle with both headed in the same direction towards Beach road. That the motor vehicle tried to overtake the motor cycle and it was at that point that it hit the motor cycle and it veered off the road. But that in cross-examination, the appellant’s story changed and he said that the motor cycle was the one following the vehicle and that the vehicle did a sudden U-turn without indicating and the motor cycle presumably rammed it.
25. The learned magistrate also faulted the investigating officer’s evidence wondering how a vehicle that was behind the motor cycle and headed in the same direction could have made a sudden U-turn and hit the motor cycle. The learned trial magistrate also wondered how the point of impact on the motor vehicle could have been towards the middle of the front bumper while making a U-turn since the U-turn would have been on the other side of the road?
26. The learned trial magistrate then tried to formulate how the accident could have occurred, according to her own appreciation of the evidence.
27. As to whether contradictions, discrepancies and inconsistencies in the evidence of a witness are material in the case of Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.”
28. On the same issue the Court of Appeal further adopted the finding of the Tanzanian Court of Appeal in Dickson Elia Nsamba Shapwata & another V. The Republic, CR. APP. NO. 92 OF 2007 where it held that:-
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
29. With respect to the learned trial magistrate, I think her appreciation of the evidence tendered was not in line with what was said and her finding that the contradictions by the appellant. were material so as to affect his veracity was not well founded. First of all, the appellant and the investigating officer were in agreement that the driver of the motor vehicle was to blame for the accident for making a U-turn on the road suddenly and without indicating and this is what caused the accident. The appellant pleaded in the amended plaint that the motor vehicle hit the motor cycle from the rear causing the motor cycle to veer off the road. In his witness statement, he went further and stated that “… motor vehicle registration number KCK 580W hit the motor cycle…from the rear as it was overtaking it and as a result the motor cycle…veered off the road…”
30. The appellant conceded in cross-examination that he could not tell the difference between overtaking and making a U-turn even as he had used the terms in his evidence. However, his lack of knowledge on the difference between the two was supplied by an expert in that area, the traffic police officer, PW2 who upon investigations found that what the driver was doing was a U-turn.
31. In cross-examination, PW 2 said that all along the driver of the vehicle had kept to the left lane until he suddenly made a U-turn to go back where he was coming from and this is what caused the collision.
32. The respondents on their part did not call any witness to support the averments in their pleadings and so the same cannot be considered as evidence to find that the motor cycle rider was to blame for the accident to any extend. In the case of North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi [2019] KEHC 10180 (KLR) where the burden of proof in civil matters was discussed and the effect of not calling a witness to support a party’s case, that the party’s pleadings are not to be taken as evidence but mere statements with no probative value.
33. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
34. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
35. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
36. The appellant presented evidence by way of witness statements and testimony that the driver of the vehicle made a sudden U-turn without indicating and caused the accident to occur. He was supported in that respect by the investigating officer. The appellant was an eye-witness to the accident. The respondents did not tender any evidence to discount what the appellant said..
37. There is no dispute that there was a collision between the respondents’ vehicle and the motor cycle. The accident indeed happened. The appellant came forward and gave his version of what happened. There is no other evidence to challenge that given by the appellant and his witness. The evidence that the vehicle driver suddenly and without indicating made U-turn was not challenged. That in itself was negligent on the driver’s part. It is very logical that when the driver made a sudden U-turn in the road, the motor cycle rider tried to move towards the far right in order to pass it but in the process the vehicle hit the motor cycle causing it to veer off the road. That would clearly explain the point of impact on the vehicle’s front bumper towards the middle.
38. I therefore, with respect, set aside the finding of the learned trial magistrate on the issue of liability and make a finding that the appellant proved his case on a balance of probability that the driver of the vehicle was negligent in his manner of driving and thus caused the accident. The 1st defendant as driver of the vehicle was wholly to blame for the accident and the 2nd defendant as owner is vicariously liable for the same.
39. Since there was no appeal on the issue of assessment of damages, the same will remain as determined by the learned trial magistrate.
40. The respondents shall bear the costs of the appeal.
41. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 15th of January 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mkabana (Ms) Appellants.
Kirimi for the Respondent.
Daniel Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.