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JudgmentElijah Chege Mwaura VS Transeast Limited4 min read

Elijah Chege Mwaura VS Transeast Limited

High Court at Voi High Court · · George. Dulu


(From the Judgment and Decree in Civil Case No. E071 of 2022 delivered on 28th February 2023 by Hon. C. K. Kithinji (PM) at Voi Law Courts)

  1. In a judgment delivered on 23rd February 2023, the trial Magistrate found that the respondent (insurance company under subrogation) had proved their claim on subrogation, and concluded as follows:-

“Consequently, judgment is hereby entered in favour of the plaintiff as against the defendant in the sum of Kshs. 2,554,195/=, plus costs of this suit and interest thereon at court rates.”

  1. Dissatisfied with the decision of the trial court the appellant who was the defendant in the trial court, has come to this court on appeal through counsel M/s Jengo Associates Advocates on the following grounds :-
  2. The learned trial Magistrate erred in law and in fact in holding that the plaintiff had proved its case on the required standard and that the defendant was solely to blame for the accident thereby arriving at an erroneous and legally unsustainable decision.
  3. That the learned Magistrate erred in law and in fact in holding that the plaintiff had proved its case of negligence by failing to appreciate the proximate cause of the accident and the doctrine of causation and blameworthiness.
  4. That the learned trial Magistrate erred in law and in fact by holding that the defendant was 100% liable contrary to the weight of evidence on record, considered extraneous and irrelevant factors, misunderstood and misapplied the correct law on causation and blameworthiness arriving at a decision unsustainable in law hence occasioning a miscarriage of justice.
  5. The learned trial Magistrate erred in law in failing to appreciate tha the testimony of the police was hearsay evidence incapable of proving negligence.
  6. That the learned trial Magistrate erred in fact and in law in awarding Kshs. 24,200/= being tracing fees contained in document number 18 which was marked for identification but not produced in evidence of and Kshs. 2,320/= which were pleaded but not proved contrary to binding case law and occasioning a miscarriage of justice.
  7. The learned trial Magistrate misapprehended the evidence and misapplied, misunderstood and overlooked the correct legal principles, binding judicial precedent especially on the probative value of the testimony of a police officer thereby arriving at an erroneous decision.
  8. The award for special damages was arbitrarily made without due regard to binding judicial precedent, the parties submissions and in considering irrelevant factors hence inordinately high.
  9. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by Jengo & Associates Advocates for the appellant, and the submissions filed by Eboso & Company Advocates for the respondent.
  10. This is an appeal against both liability and quantum of damages awarded.  In deciding this appeal, I have to remind myself of the duty of this court as a first appellate court, to reconsider the evidence on record and come to my own independent conclusions and inferences – see Abok James Odek =Versus= John Patrick Machira (2013) eKLR.
  11. This being a civil case, the standard of proof is on the balance of probabilities. 
  12. In proving their case the respondents called three (3) witnesses PW2 Lawrence Momany a Legal Assistant of Mayfair Insurance Company Limited, PW1 PC Julius Kamau of Voi Police Station, and PW3 Patrick Maina Mwangi an auto assessor.  Each of these witnesses testified in chief and was cross-examined.
  13. The appellant on their part, did not call any witnesses, and counsel on both sides then filed written submissions. 
  14. I will start with the issue of liability.  With regard to the Magistrate’s finding of 100% liability on negligence, considering the evidence of the police officer PW1 PC Julius Kamau about how the accident occurred on the side of the driver who died, and with no contra evidence tendered by anybody from the side of the appellant, in my view, the trial Magistrate was correct in finding that the appellant was 100% liable in negligence.  Though the police officer was not at the scene when the accident occurred, his evidence was believable, and was the best evidence available.
  15. Turning now to the quantum of damages awarded, I note that under paragraph 5 of the Memorandum of Appeal, the appellant complains that the awards of Kshs. 24,200/= under document 18, and Kshs. 2,320/= though pleaded were not proved since document 18 relating to tracing fees was only marked for identification, but not produced in court as an exhibit.
  16. In my view, applying the standard of proof of balance of probabilities which is the standard of proof in civil cases, and in the present situation where Order 11 of the Civil Procedure Rules required all statements and documents to be used in the trial to be exchanged before trial, and in the absence of contra witness evidence tendered from the appellants on the validity of documents exchanged and filed and relied upon, in my view, the Magistrate was correct in allowing the above awards.
  17. Lastly, the denials of liability and quantum of damages of the appellants in the defence filed were mere allegations, and if they did not tender any witness evidence, whether oral or documentary, then the pleadings remained to be so.  Mere allegations cannot be considered by the court, as they are not evidence.
  18. For the above reasons, I find no merits in the appeal.  I dismiss the appeal with costs to the respondents.

Dated, signed and delivered this 24th day of April 2024 in open court at Voi virtually.

In the presence of:-

Alfred – Court Assistant

Mr. Kioko holding brief for Mr. Jengo for appellant

No appearance for respondent

    Elijah Chege Mwaura VS Transeast Limited Elijah Chege Mwaura VS Transeast Limited