Background
1. By way of a plaint dated 4th March, 2020, the plaintiff/appellant as the guardian and next friend of Dennis Inganga Akhule, sued the Defendant/Respondent seeking general damages, costs, and interests of the suit.
2. The appellant pleaded in her plaint that on 30th August 2017 the minor, Dennis Inganga Akhule was a lawful pedestrian at KICOMI area within Kisumu county when police officers in uniform and under the instructions, control or directions of the Inspector Genneral of Police and Permanent Secretary of the Ministry of Interior and Co-ordination of National Government attacked and severely injured the minor without any justifiable cause or provocation and as a result, the minor sustained grevious bodily injuries. It was the Appellant’s case at trial that the minor sustained injuries due to the negligence on the part of the police officers. The appellant pleaded negligence and breach of statutory duty against the Respondent.
3. The Appellant further asserted that as a result of the attack, the minor suffered deep cut wounds on the head, face and forhead, cut wounds to the hands, arms, and shoulders, blunt injuries to the head, feet, arms, shoulders, chest, stomach, waits, buttocks, back, hands, fingers, knees, ankles, toes, legs and loss of nails.
4. The Respondent entered appearance and filed a defence dated 16th June 2020, denying the allegations by the Plaintiff. In particular, the allegations of negligence and statutory breach of duty. The Respondent also denied liability for the appellant’s claim.
5. Upon conclusion of the trial, the trial magistrate delivered its judgment on 11th March 2024, dismissing the suit on the basis that the appellant failed to prove her case against the Respondent on a balance of probabilities.
The Appeal
6. Aggrieved by the judgment of the trial court, the appellant lodged an appeal before this court vide a Memorandum of Appeal dated 12th March 2024, citing the following grounds of appeal;
i. The trial magistrate erred and misdirected herself by relying on wrong principles when determining liability, thereby dismissing the Appellant's case herein.
ii. The trial magistrate erred and misdirected herself and failed to apply precedents and tenets/principles of the law applicable in determining liability, especially on the burden of proof.
iii. The trial magistrate erred in law and in fact by failing to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.
iv. The trial magistrate erred and misdirected herself by ignoring the plaintiff’s submissions on record, hence arriving at a wrong decision in awarding damages
v. The trial magistrate erred in both law and fact in failing to appreciate the fact that the Appellant had a good case against the Respondent.
vi. The trial magistrate grossly misdirected herself in treating the evidence before her superficially, and consequently, especially on liability, came to a wrong conclusion on the same.
vii. The trial magistrate misapprehended the evidence on record to a material degree, resulting in her arriving at a wrong conclusion.
7. The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 6th November 2024, whilst the respondent did not file any submissions in this appeal. The court will therefore proceed to consider the record of appeal and the submissions on record in determining this appeal.
Appellant’s submissions
8. The appellant submitted that there was no evidence in contradiction or rebuttal of the appellant’s claim, whose evidence was unchallenged, and the trial magistrate’s decision can be said to be a misapprehension of the evidence presented before her. The appellant asserted that the trial court’s judgment demonstrates that the court failed to act on sound legal principles in reaching the findings, and the same therefore does entitle this court to interfere with the said decision.
9. The appellant contended that the trial magistrate erred when she failed to consider the evidence presented, particularly the testimony of the appellant, which clearly demonstrated that the minor was beaten by police officers who were agents of the Respondent, resulting in serious injuries.
10. The appellant asserted that the trial magistrate erred in law and fact by failing to consider the detailed and credible evidence of the appellant, who, being an eyewitness, testified that she saw the child being beaten by police officers. Reliance was placed in Mwangi vs Wambugu (1984) KLR 453, where the Court of Appeal emphasized the importance of considering the credibility of witnesses and the weight of their testimony.
11. According to the appellant, the trial court’s approach to the appellant’s testimony was dismissive and did not reflect a fair and balanced evaluation of the evidence, and the trial court did not provide adequate reasons for disregarding this vital evidence, thereby failing to afford the appellant a fair trial.
12. Further, the appellant asserted that the trial court misapplied the burden of proof by holding that the appellant failed to prove her case. The appellant insisted that in the absence of evidence from the respondent, who did not call any witnesses at trial in rebuttal of the plaintiff’s case, the trial magistrate should have found in favour of the appellant based on the uncontroverted evidence. The appellant relied on the decision in Interchemie EA Limited vs Nakuru Veterinary Centre Limited (2001)eKLR, where the court held that uncontroverted evidence by the plaintiff should be accepted as truthful and reliable.
13. On quantum, the appellant urged the court that an award of Kshs. 450,000/= would be adequate compensation as general damages.
14. In the premises, the Appellant prayed that the appeal be allowed with costs in her favour.
Analysis and Determination
15. I have carefully considered the appeal herein, the appellant’s submissions, and the entire record together with the cited authorities. This being a first appeal, this court has a duty to re-evaluate, re-assess, and re-analyze the evidence adduced before the trial court afresh and make its own independent conclusions. This duty was enunciated in the case of Gitobu Imanyara & 2 others vs Attorney General (2016)eKLR, where the Court of Appeal held thus:-
“An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
16. Further, this court will not readily interfere with a finding of a trial court unless the same was arrived at based on wrong interpretation of the principles or overlooked material facts. In Butt vs Khan (1982-88) KAR 1, the court held that:-
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either high or low.”
17. The issue in this appeal revolves around the question of whether the appellant discharged her burden of proof as required by the law. The applicable law on burden of proof is provided for under Sections 107, 108, and 109 of the Evidence Act Cap 80, Laws of Kenya. Those Sections read as follows:
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
18. In the case of Kirugi & another vs Kabiya and 3 others (1987) KLR 347, the Court of Appeal held that:
“The burden on a plaintiff to prove his case remains the same throughout the case, even though that burden may become easier to discharge where the matter is not validly defended, and the burden of proof is in no way lessened because the case is heard by way of formal proof. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant, convinces the court that on a balance of probabilities it proves the claim.”
19. It is trite law that he who alleges must prove. This is the position under Section 107 of the Evidence Act as aforementioned. The burden of proof before the trial court was placed upon the appellant to prove her case on a balance of probabilities. In the case of Palace Investment Ltd vs Geoffrey Kariuki Mwenda & another (2015) eKLR, the Court of Appeal held thus;
“Denning J. in Miller –vs- Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say:-
That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. 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. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
20. From the record of appeal, I note that the appellant testified on 2nd October 2023 as PW1 as the sole witness in the matter and adopted her witness statement dated 30th January 2018 as her evidence in chief. In her evidence, she stated that while she was cooking lunch on the material day, children called her out. She went out and found her child on the ground being beaten by police. He took the child to the hospital and later filed a case on behalf of her child. She stated that she saw the police beat the child. She prays for compensation.
21. I have perused the record of appeal and note that, as per the appellant’s evidence, the minor was taken to the hospital for treatment, but no doctor was called to testify and produce the medical treatment notes.
22. In my considered view, the evidence of PW1, the appellant herein, needed to be corroborated to assist this Court in making a proper determination. In the absence of such corroboration, this court has no otherwise but to uphold the finding by the trial court.
23. The appellant has argued that since her evidence was not challenged or rebutted by the Respondent, then the trial court ought to have agreed with it. While it is true that a plaintiff’s evidence remains uncontroverted where a defendant fails to call any witness, it is equally trite that the failure by a defendant in no way lessens the burden of the plaintiff to prove her case. The court in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR the court stated:
“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.”
24. Further, it is trite law that a document is to be produced by its maker. Under Section 35 (b) of the Evidence Act, on admissibility of documentary evidence as to facts in issue, provides as follows: -
“If the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.”
25. The Court in Valji Jetha Kerai & another v Julius Ombasa Manono & another [2019] eKLR cited with approval the Court of Appeal decision in of Mohamed Musa & Another vs. Peter M Mailanyi & Another Civil Appeal No. 243 of 1998 expressed itself as follows:
“Under section 35(b) of the Evidence Act, the medical report ought to have been produced by the maker thereof. The plaintiff cannot expect the court to make an award without any basis. The court can only award a sum of money and, in justice to the defendant as well as to the plaintiffs, that sum must be commensurate with the injuries suffered. The onus lies on the plaintiff to adduce the evidence to enable the court make calculations or to reach a conclusion thereon otherwise the award cannot stand....
In this case the finding of the trial court cannot stand as the respondent, having failed to call the doctor who wrote the medical report, did not prove his case. He presented his case with a lot of assumption simply because the other side was not represented. Litigants must bear in mind that even in prosecuting cases ex parte, the required standards of proof must be observed, particularly where there is denial of material pleadings by any opposing party.”
26. In the present case, apart from the fact that the Plaintiff’s case was not corroborated, no doctor was called to produce the medical report as to the nature of the injuries and the possible cause(s) thereof.
27. Further, no particulars as to the identity of the police officer (s) were given by the Plaintiff at trial. The mere fact that the persons who allegedly beat the minor were in police uniform does not of itself make them police officers, much less, the agents of the Respondent. I find that the evidence adduced at trial is insufficient to make this Court reach a conclusion that the persons who allegedly beat the minor were police officers, therefore, agents of the Respondent.
28. In the circumstances, I find no reason to depart from the finding of the trial court as to liability. Accordingly, I find the appeal unmeritorious and hereby dismiss the same with no orders as to costs, the Respondent having not participated in this appeal.
29. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 3RD DAY OF APRIL 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.