(Being an appeal and cross appeal arising out of the decree emanating from the judgment of the Hon. Wanjiru M.N. Resident Magistrate at Gichugu Magistrates Court Civil Case No. E039 of 2021 delivered on 27/5/2022)
1. The Appeal and cross-appeal herein arise from the same trial court decision. The appellants (plaintiffs in the lower court case) filed their memorandum of appeal dated 3/6/2022 while the respondent (defendant in the lower court case) filed his memorandum of cross-appeal dated 12/7/2024. They are both on liability only.
2. In the lower court the appellants herein, the father and mother of the deceased, a minor aged 4 years, sued the respondent for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents. In their plaint dated 15/7/2021, they pleaded that the deceased was a lawful pedestrian along the Kutus-Kagio road when the accident leading to her demise occurred. They blamed the accident on the negligent and careless manner that they claimed the respondent drove motor vehicle registration number KDB 163A.
3. In his statement of defence dated 1/8/2021 the respondent denied the claims by the appellants in toto and in the alternative blamed the deceased’s parents in negligence for having solely or contributed to the accident. He also pleaded negligence on the part of the deceased.
4. After hearing the case the learned trial magistrate entered judgment on liability in the ratio of 50:50 for both parties finding that there was no clear evidence of how the accident occurred.
5. Both the appellants and the respondent were aggrieved by the said judgment thereby leading to the appeal and cross-appeal herein. In their memorandum of appeal, the appellants raise the following grounds: -
a. The learned trial magistrate erred in law and in fact in finding the deceased 50% liable for the accident despite the absence of evidence to support such a finding.
b. The learned trial magistrate erred in law and in fact in finding that the plaintiffs did not lead evidence as to how the accident occurred whereas the witness gave elaborate and consistent evidence as to how the accident occurred.
c. The learned trial magistrate erred in law and in fact in failing to consider adequately, or at all, the totality of the evidence that was tendered on liability, and in so doing she arrived at an erroneous finding on liability.
d. The learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions on liability and arrived at an erroneous decision.
6. The appellants therefore pray that the appeal against the judgment of the trial court be allowed, and the said judgment be set aside and liability be apportioned at 100% against the respondent and they be awarded costs of the appeal. Finally, that the court may grant further orders as it may deem fit.
7. In the cross appeal, the respondent has raised three grounds of appeal as follows:
a. The trial court erred in law by finding the respondent liable notwithstanding the appellants’ failure to discharge the burden of proof.
b. The trial court erred in law and in fact by failing to find that the appellants were bound by their pleadings to the effect that the respondent was the primary tort-feasor.
c. The trial court erred in law and in fact by failing to find that the respondent’s witness did not admit to having caused the alleged accident with the deceased and as such he could not be held liable.
8. The appeal was disposed of on written submissions filed by learned counsels for both parties.
9. 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. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.
10. At the trial, evidence for the appellants was tendered by two witnesses; PW 1, Daniel Wainaina, the father of the deceased and the 1st appellant herein who said he also witnessed the accident and PW 2, PC Isaiah Mutweriba from Kerugoya police station traffic base who was the investigating officer in the case.
11. PW 1 adopted his witness statement dated 10/9/2021 as his evidence in chief and also testified and was cross-examined. His evidence was that he was at the scene when the accident happened on 12/4/2021. He said the vehicle veered off the road and hit the deceased who was standing off the road on the right said as one faces Kutus thereby occasioning her injuries and eventual death. He said that after the vehicle hit his daughter, it did not stop. He boarded a motor cycle and pursued the vehicle and managed to stop it at Kutus. They took the driver to Kutus police station. Police officers at Kutus police station called their counterparts from Kerugoya police station who came over. They took the accident vehicle to Kerugoya police station and the body of the deceased to Kibugi funeral home. He denied that there was a Probox car that hit his daughter. He said the vehicle was a lorry.
12. In cross-examination, PW 1 said the accident happened at around 7.50 p.m. and the child was with two others and there was no adult. That the deceased was off the road and not close to the tarmac. He also said that the lorry was defective but conceded that he had no evidence to support that assertion.
13. PW 2, the investigating officer gave evidence confirming that the accident did occur and it involved motor vehicle registration number KDB 163A, Isuzu FTR lorry, driven by one Peter Muchoki Mwangi and the child pedestrian aged 4 years.
14. In cross-examination he said that he relied on the driver and passenger’s statements, driver’s statement and sketch plans. He said that according to the driver’s statement, it indicated that a Probox hit something that was thrown to his lane and he hit the thing. The statement did not show that the lorry driver hit the child. However, investigations revealed that the thing he was referring to was a child. The case was pening under investigations as at the time he gave his testimony. He said that they had forwarded the file to the ODPP to determine if they could charge him.
15. The appellant called one, witness, DW 1, Peter Muchoki Mwangi, the driver of the lorry. DW 1 adopted his witness statement dated 12/10/2021 as his evidence in chief. His evidence was that he was driving from Murang’a to Kutus along Kutus-Kagio road. The lorry’s lights were on and he was able to see the road clearly. At Kimicha area, a Toyota Probox was moving in the opposite direction at high speed and he was not able to get its registration number. It hit a child crossing the road from the side of the Probox to his side of the road. The Probox did not stop. The child landed on the lorry’s bumper. He stopped the lorry. There “boda-boda” riders (motorcycle taxi operators) nearby who were shouting. They falsely accused him of hitting the child. Fearing for his safety, he drove the lorry to the police station where they took his statement.
16. In his testimony in court, he said that a Probox hit something which was thrown to his bumper and he stopped. He denied that he was the one that first hit the child.
17. In cross-examination, DW 1 said that he was driving at about 40 Km/Hr and the vehicle’s braking distance was about 2 metres. He said the headlights shine at a minimum distance of 20 metres capturing the whole width of the road. He could not tell how far the Probox was from him when he first saw it as it was at night and there were many vehicles on the road. He reiterated that he did not see the child but the Probox hit something and he did not see it hit a child.
18. Pressed by the learned counsel for the appellants, he conceded that the Probox hit the child and that he saw the child and that he first saw her when she was about 2 metres away and she was off the road. He then said that he heard people say that he had hit a child. He insisted that he had hit something and denied that he had hit a child.
19. In re-examination, DW 1 said that it was as if the child was crossing the road when he was hit by the Probox.
20. Upon considering the evidence tendered and the submissions by learned counsels, the trial court found the deceased and the appellant to equally blame for the accident and apportioned liability in the ratio of 50:50. This finding is now contested by both the appellants and the respondent with the appellants asking for a determination of liability against the respondent at 100% and the respondent contending through the cross-appeal that the appellants did not prove their case on a balance of probability and so the same should have been dismissed.
21. I have considered the case and re-evaluated the evidence that was before the trial court. I have further considered the rival written submissions by learned counsels herein.
22. The grounds of appeal by the appellants can be summed into one, that the learned magistrate’s finding that the deceased was 50% liable to blame for the accident was in error, unjust and against the weight of the evidence, the learned magistrate having failed to consider the appellant’s evidence and submissions on the issue. I will consider this ground of appeal alongside the ground of the cross-appeal by the respondent faulting the learned trial magistrate for finding the respondent liable apportioning liability equally between the deceased and the respondent in the absence of evidence from the appellants to prove their case.
23. From the grounds of the appeal and the cross-appeal and the submissions by learned counsels, I find the issues for determination to be:
a. Whether or not the trial magistrate erred to allow the case against the respondent when vicarious liability had not been pleaded?
b. Whether or not the trial magistrate erred by equally apportioning liability between the parties.
24. On the first issue, it is true that vicarious liability was not pleaded against the respondent. However, there is no dispute that the respondent was the owner of the vehicle and that DW 1 was driving it as his employee, servant or agent at the time and for the defendant’s benefit. It was therefore not available to the respondent to claim that the failure by the appellants to plead vicarious liability can absolve him of blame.
25. In the case of Karisa v. Solanki (1969) E.A 318 at page 322 the Eastern African Court of Appeal considering the issue of vicarious liability held as follows:
“Where it is proved that a car has caused damage by negligence, then in absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car as lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and driver.”
26. The issue was also considered in the case of Automobile Association of Kenya v James Jaguga [2005] KEHC 1677 (KLR) where the High Court stated that:
“In the case of Odd Jobs –vs- Mubia [1970] EA 476 the Court of Appeal for East Africa held that a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for decision. That decision was followed by the Court of Appeal in the case of Vyas Industries –vs- Diocese of Meru [1982] KLR 114 in which the Court of Appeal cited with approval the decision in the case of Odd Jobs –vs- Mubia [1970] EA 476 in the following terms –
“The circumstances in which an unpleaded issue can become an issue in a suit is a question which was considered in Odd Jobs –vs- Mubia [1970] EA 476 in which it was held that:
a) a court may base its decision on an unpleaded issue if it appears from the cause followed at the trial that the issue had been left to the court for decision.
b) On the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it.”
As I have said earlier, in our present case, the issue of the vicarious liability of the appellant for the acts of its employee Silas was an issue that was raised in evidence. It was also raised in written submissions by both counsel for the parties. It was therefore an issue that was left to the learned magistrate to decide upon. I am therefore of the view that the learned magistrate was correct in deciding on the issue of vicarious liability, even though it was not pleaded in the plaint.”
27. In the present case, PW 1 wrote in his statement that “the defendant or his driver and agent” negligently drove the vehicle. The police abstract and the copy of records all produced in evidence show that the vehicle was owned by Peter Wandunyu Mwangi, the respondent herein. In his submissions before the trial court, learned counsel for the appellants submitted that the defendant is the registered owner of the motor vehicle and further that the defendant’s driver confirmed that the defendant was the beneficial and registered owner of the vehicle. I am persuaded to follow the decision in the preceding paragraph and to find that the learned trial magistrate was not wrong in her finding of liability against the defendant (respondent herein) even as the driver of the vehicle was not enjoined to the suit as a defendant and the issue of vicarious liability of the respondent was not pleaded in the plaint.
28. Learned counsel for the appellant submits that the learned magistrate made an erroneous finding on liability, evidence having been that the appellant’s vehicle veered off the road and hit the deceased. He submits that the respondent’s witness, the driver of the lorry gave conflicting evidence of how the accident occurred. For instance, he stated that he had not seen the child and later changed and stated that he had seen the child.
29. On his part learned counsel for the respondent submits that in his evidence PW 1 said that there were no adults around and so learned counsel wonders how PW 1, an adult witnessed the accident. I think here, learned counsel misapprehended the answer that PW 1 gave because the question I suppose he was the one who put to PW 1 was whether the children were accompanied by an adult and PW 1 said that there was no adult, meaning with the children. Otherwise, the evidence by PW 1 and even DW 1 shows that there were many people around including boda boda riders.
30. I have set out above the evidence of the appellants and that of the respondents on how the accident occurred.
31. But the trial court found that no clear evidence was brought before the court as to how the accident occurred. In evaluating the evidence, the trial magistrate placed much reliance on the evidence of the investigating officer even after finding that he never produced the police file that would have had a sketch map, the motor vehicle inspection report and other documents which would have showed the exact point of impact to buttress the appellants’ version of events. The learned trial magistrate found that there was no evidence tendered to show what constituted the defendant’s negligence and how he caused the accident and that no one had demonstrated how the accident occurred.
32. The learned trial magistrate then made what I find to be a most baffling statement. That, nonetheless, the defendant (respondent herein) had opted to give his evidence and his defence confirmed that he had hit the deceased. However, the learned trial magistrate did not believe the version of the story of the respondent’s assertion that the deceased was first hit by a Probox. She also found that the respondent had failed to produce the police file, a public document and the motor vehicle inspection report in order to fortify his version of the story. In fact, the respondent had produced the motor vehicle inspection report as part of the documents filed in support of his case. The report however
33. I am inclined to find that the learned trial magistrate erred in her approach while evaluating the evidence before her. I find that the trial magistrate misapprehended the facts as presented before her from the evidence of PW 1 and DW 1 in arriving at that finding that there was no clear evidence before the court on how the accident occurred.
34. There was evidence of two eye witnesses, PW 1 and DW 1. What the learned magistrate needed to do was to evaluate and come to a conclusive finding on whether the evidence of either of them was believable or not. Granted that each of them would be biased, PW 1 by the need to be in favour of his deceased daughter and DW 1 by the need to exonerate himself from blame., the court needed to determine which was the two versions was more credible, always remembering that the onus is upon the plaintiffs to prove their case on a balance of probability.
35. In arriving at the finding that there was no evidence that the vehicle veered off the road and hit the deceased, the learned trial magistrate was clearly wrong because the evidence of PW 1 was exactly that. It appears that the learned magistrate thought that evidence that the vehicle of veered off the road would only be tendered through production of sketch plans, maps and legends and measurements of the scene of the accident. Such evidence is good where it is available. It would support or rebut the evidence of the eye witnesses. In this case however, it was not made available.
36. There is no explanation why the investigating officer failed to bring the legends, measurements and sketch maps, if he prepared any, to court as evidence. Secondly, whereas the father of the deceased indicates that he was at the scene and witnessed how the accident occurred, there is no indication that the investigating officer sought information from him on how the accident occurred. The investigating officer said he only took statements from the driver and his passenger. He then failed to produce in court his own evidence of investigations at the scene in the form of legends, measurements and sketch maps. Yet the trial court went ahead to rely on his evidence, casting doubt on the evidence of two eye witnesses to the accident. I find that in doing so, the trial court failed to take into account relevant evidence that had been tendered by both parties to support their respective cases. In doing so, the trial court fell into error.
37. The learned trial magistrate did not make a finding on why she did not find the evidence of PW 1 reliable to prove the appellant’s case on a balance of probability. In considering the evidence tendered at the trial and placing the evidence of PW 1 and DW 1 side by side, I find that the evidence of PW 1 was the more probable and reliable, even as he would tend to be biased towards the deceased as his daughter. The evidence of DW 1 on the other was full of major inconsistencies that made it unreliable.
38. Learned counsel for the respondent submits that the evidence of PW 1 is critically wanting in particulars yet the PW 1 gave a version of the accident that I find plausible. Learned counsel has not indicated which aspect of the evidence required which particulars.
39. The learned trial magistrate found that although PW 1 stated that he was an eye witness he did not give any evidence of what he witnessed happening. That finding was contrary to the evidence of PW 1 that the vehicle veered off the road and hit the deceased. That the driver did not stop immediately as claimed by DW 1 and PW 1 had to pursue the lorry on a motor bike and stopped it at Kutus. That upon getting the driver, they handed him over to police officers at Kutus police station who later called their counterparts from Kerugoya polce station to handle the situation. In cross-examination, PW 1 maintained that the child was off the road and not close to the tarmac. There was nothing in cross-examination and in the evidence of DW 1 that discounted the evidence of PW 1.
40. The evidence of DW 1 was not credible for reasons that whereas he said he was driving at a speed of 40Km/Hr and that the lights on the lorry were on and he could see the road ahead properly, he first claimed that he did not see the child. He then changed when pressed by learned counsel and said he saw the child. However, he maintained that he did not realize that he had hit a child until he was told so by people who were around. It is not plausible that he could have been driving failry slowly, he could see that a Probox was speeding and yet not see that it had hit a child. His answer that the child could have been crossing the road was not definitive. Having denied that he saw how the child was allegedly hit by the alleged Probox, there was no way he could have seen that the child was crossing the road at the time.
41. Therefore, the issue of the child crossing or attempting to cross the road cannot arise as there was no such evidence either from PW 1 or DW 1 or from the investigations by PW 2.
42. The undisputed evidence on record is that the accident did occur involving the respondent’s vehicle and the deceased. The fact that DW 1 could not even notice that there were children beside the road lends credence to PW 1’s evidence that, perhaps in a moment of inattention by DW 1, the lorry veered off the road and hit the deceased.
43. The appellants had the onus of proof of their case on a balance of probabilities. Towards the discharge of that duty the appellants through PW 1 led evidence on how the accident occurred. There was evidence that the vehicle veered off the road and hit the deceased causing her fatal injuries.
44. The Court of Appeal in Nandwa -vs- Kenya Kazi Ltd [1988] KLR 488 considering the issue negligence held that:
“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in favour of the plaintiff unless the defendants’ evidence provides some answer adequate to displace that inference.”
45. I find no evidence to attribute any contributory negligence upon the deceased herein.
46. Accordingly, I find and hold that respondent herein should wholly bear the blame for the accident. I set aside the judgment of the trial court on liability and substitute it with a finding of 100% liability against the respondent in this appeal.
47. Consequently, I find that the appeal succeeds while the cross-appeal is dismissed with costs for both to the appellants.
48. There was no appeal on the quantum of damages awarded and so the same remains as per the judgment of the trial court.
49. Consequently, judgment is entered for the respondents against the appellants in the sum of KShs 930,000/= together with interest at court rates.
50. Orders accordingly.
Signed, Dated and Delivered on the Virtual Platform Teams this 5th day of August 2025.
ANDAYI W. FRANCIS
JUDGE
Delivered in the presence of:
Mwangi Maina for the appellants.
Ms Lumumba for the respondent.
Job, Court Assistant.
ANDAYI W. FRANCIS
JUDGE
Court: There shall be a stay of execution for 30 days as prayed by learned counsel.
Parties to be supplied with certified copies of the judgment upon payment of the requisite fee. A copy of the judgment will be uploaded on the CTS.
ANDAYI W. FRANCIS
JUDGE
1. The Appeal and cross-appeal herein arise from the same trial court decision. The appellants (plaintiffs in the lower court case) filed their memorandum of appeal dated 3/6/2022 while the respondent (defendant in the lower court case) filed his memorandum of cross-appeal dated 12/7/2024. They are both on liability only.
2. In the lower court the appellants herein, the father and mother of the deceased, a minor aged 4 years, sued the respondent for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents. In their plaint dated 15/7/2021, they pleaded that the deceased was a lawful pedestrian along the Kutus-Kagio road when the accident leading to her demise occurred. They blamed the accident on the negligent and careless manner that they claimed the respondent drove motor vehicle registration number KDB 163A.
3. In his statement of defence dated 1/8/2021 the respondent denied the claims by the appellants in toto and in the alternative blamed the deceased’s parents in negligence for having solely or contributed to the accident. He also pleaded negligence on the part of the deceased.
4. After hearing the case the learned trial magistrate entered judgment on liability in the ratio of 50:50 for both parties finding that there was no clear evidence of how the accident occurred.
5. Both the appellants and the respondent were aggrieved by the said judgment thereby leading to the appeal and cross-appeal herein. In their memorandum of appeal, the appellants raise the following grounds: -
a. The learned trial magistrate erred in law and in fact in finding the deceased 50% liable for the accident despite the absence of evidence to support such a finding.
b. The learned trial magistrate erred in law and in fact in finding that the plaintiffs did not lead evidence as to how the accident occurred whereas the witness gave elaborate and consistent evidence as to how the accident occurred.
c. The learned trial magistrate erred in law and in fact in failing to consider adequately, or at all, the totality of the evidence that was tendered on liability, and in so doing she arrived at an erroneous finding on liability.
d. The learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions on liability and arrived at an erroneous decision.
6. The appellants therefore pray that the appeal against the judgment of the trial court be allowed, and the said judgment be set aside and liability be apportioned at 100% against the respondent and they be awarded costs of the appeal. Finally, that the court may grant further orders as it may deem fit.
7. In the cross appeal, the respondent has raised three grounds of appeal as follows:
a. The trial court erred in law by finding the respondent liable notwithstanding the appellants’ failure to discharge the burden of proof.
b. The trial court erred in law and in fact by failing to find that the appellants were bound by their pleadings to the effect that the respondent was the primary tort-feasor.
c. The trial court erred in law and in fact by failing to find that the respondent’s witness did not admit to having caused the alleged accident with the deceased and as such he could not be held liable.
8. The appeal was disposed of on written submissions filed by learned counsels for both parties.
9. 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. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.
10. At the trial, evidence for the appellants was tendered by two witnesses; PW 1, Daniel Wainaina, the father of the deceased and the 1st appellant herein who said he also witnessed the accident and PW 2, PC Isaiah Mutweriba from Kerugoya police station traffic base who was the investigating officer in the case.
11. PW 1 adopted his witness statement dated 10/9/2021 as his evidence in chief and also testified and was cross-examined. His evidence was that he was at the scene when the accident happened on 12/4/2021. He said the vehicle veered off the road and hit the deceased who was standing off the road on the right said as one faces Kutus thereby occasioning her injuries and eventual death. He said that after the vehicle hit his daughter, it did not stop. He boarded a motor cycle and pursued the vehicle and managed to stop it at Kutus. They took the driver to Kutus police station. Police officers at Kutus police station called their counterparts from Kerugoya police station who came over. They took the accident vehicle to Kerugoya police station and the body of the deceased to Kibugi funeral home. He denied that there was a Probox car that hit his daughter. He said the vehicle was a lorry.
12. In cross-examination, PW 1 said the accident happened at around 7.50 p.m. and the child was with two others and there was no adult. That the deceased was off the road and not close to the tarmac. He also said that the lorry was defective but conceded that he had no evidence to support that assertion.
13. PW 2, the investigating officer gave evidence confirming that the accident did occur and it involved motor vehicle registration number KDB 163A, Isuzu FTR lorry, driven by one Peter Muchoki Mwangi and the child pedestrian aged 4 years.
14. In cross-examination he said that he relied on the driver and passenger’s statements, driver’s statement and sketch plans. He said that according to the driver’s statement, it indicated that a Probox hit something that was thrown to his lane and he hit the thing. The statement did not show that the lorry driver hit the child. However, investigations revealed that the thing he was referring to was a child. The case was pening under investigations as at the time he gave his testimony. He said that they had forwarded the file to the ODPP to determine if they could charge him.
15. The appellant called one, witness, DW 1, Peter Muchoki Mwangi, the driver of the lorry. DW 1 adopted his witness statement dated 12/10/2021 as his evidence in chief. His evidence was that he was driving from Murang’a to Kutus along Kutus-Kagio road. The lorry’s lights were on and he was able to see the road clearly. At Kimicha area, a Toyota Probox was moving in the opposite direction at high speed and he was not able to get its registration number. It hit a child crossing the road from the side of the Probox to his side of the road. The Probox did not stop. The child landed on the lorry’s bumper. He stopped the lorry. There “boda-boda” riders (motorcycle taxi operators) nearby who were shouting. They falsely accused him of hitting the child. Fearing for his safety, he drove the lorry to the police station where they took his statement.
16. In his testimony in court, he said that a Probox hit something which was thrown to his bumper and he stopped. He denied that he was the one that first hit the child.
17. In cross-examination, DW 1 said that he was driving at about 40 Km/Hr and the vehicle’s braking distance was about 2 metres. He said the headlights shine at a minimum distance of 20 metres capturing the whole width of the road. He could not tell how far the Probox was from him when he first saw it as it was at night and there were many vehicles on the road. He reiterated that he did not see the child but the Probox hit something and he did not see it hit a child.
18. Pressed by the learned counsel for the appellants, he conceded that the Probox hit the child and that he saw the child and that he first saw her when she was about 2 metres away and she was off the road. He then said that he heard people say that he had hit a child. He insisted that he had hit something and denied that he had hit a child.
19. In re-examination, DW 1 said that it was as if the child was crossing the road when he was hit by the Probox.
20. Upon considering the evidence tendered and the submissions by learned counsels, the trial court found the deceased and the appellant to equally blame for the accident and apportioned liability in the ratio of 50:50. This finding is now contested by both the appellants and the respondent with the appellants asking for a determination of liability against the respondent at 100% and the respondent contending through the cross-appeal that the appellants did not prove their case on a balance of probability and so the same should have been dismissed.
21. I have considered the case and re-evaluated the evidence that was before the trial court. I have further considered the rival written submissions by learned counsels herein.
22. The grounds of appeal by the appellants can be summed into one, that the learned magistrate’s finding that the deceased was 50% liable to blame for the accident was in error, unjust and against the weight of the evidence, the learned magistrate having failed to consider the appellant’s evidence and submissions on the issue. I will consider this ground of appeal alongside the ground of the cross-appeal by the respondent faulting the learned trial magistrate for finding the respondent liable apportioning liability equally between the deceased and the respondent in the absence of evidence from the appellants to prove their case.
23. From the grounds of the appeal and the cross-appeal and the submissions by learned counsels, I find the issues for determination to be:
a. Whether or not the trial magistrate erred to allow the case against the respondent when vicarious liability had not been pleaded?
b. Whether or not the trial magistrate erred by equally apportioning liability between the parties.
24. On the first issue, it is true that vicarious liability was not pleaded against the respondent. However, there is no dispute that the respondent was the owner of the vehicle and that DW 1 was driving it as his employee, servant or agent at the time and for the defendant’s benefit. It was therefore not available to the respondent to claim that the failure by the appellants to plead vicarious liability can absolve him of blame.
25. In the case of Karisa v. Solanki (1969) E.A 318 at page 322 the Eastern African Court of Appeal considering the issue of vicarious liability held as follows:
“Where it is proved that a car has caused damage by negligence, then in absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car as lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and driver.”
26. The issue was also considered in the case of Automobile Association of Kenya v James Jaguga [2005] KEHC 1677 (KLR) where the High Court stated that:
“In the case of Odd Jobs –vs- Mubia [1970] EA 476 the Court of Appeal for East Africa held that a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for decision. That decision was followed by the Court of Appeal in the case of Vyas Industries –vs- Diocese of Meru [1982] KLR 114 in which the Court of Appeal cited with approval the decision in the case of Odd Jobs –vs- Mubia [1970] EA 476 in the following terms –
“The circumstances in which an unpleaded issue can become an issue in a suit is a question which was considered in Odd Jobs –vs- Mubia [1970] EA 476 in which it was held that:
a) a court may base its decision on an unpleaded issue if it appears from the cause followed at the trial that the issue had been left to the court for decision.
b) On the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it.”
As I have said earlier, in our present case, the issue of the vicarious liability of the appellant for the acts of its employee Silas was an issue that was raised in evidence. It was also raised in written submissions by both counsel for the parties. It was therefore an issue that was left to the learned magistrate to decide upon. I am therefore of the view that the learned magistrate was correct in deciding on the issue of vicarious liability, even though it was not pleaded in the plaint.”
27. In the present case, PW 1 wrote in his statement that “the defendant or his driver and agent” negligently drove the vehicle. The police abstract and the copy of records all produced in evidence show that the vehicle was owned by Peter Wandunyu Mwangi, the respondent herein. In his submissions before the trial court, learned counsel for the appellants submitted that the defendant is the registered owner of the motor vehicle and further that the defendant’s driver confirmed that the defendant was the beneficial and registered owner of the vehicle. I am persuaded to follow the decision in the preceding paragraph and to find that the learned trial magistrate was not wrong in her finding of liability against the defendant (respondent herein) even as the driver of the vehicle was not enjoined to the suit as a defendant and the issue of vicarious liability of the respondent was not pleaded in the plaint.
28. Learned counsel for the appellant submits that the learned magistrate made an erroneous finding on liability, evidence having been that the appellant’s vehicle veered off the road and hit the deceased. He submits that the respondent’s witness, the driver of the lorry gave conflicting evidence of how the accident occurred. For instance, he stated that he had not seen the child and later changed and stated that he had seen the child.
29. On his part learned counsel for the respondent submits that in his evidence PW 1 said that there were no adults around and so learned counsel wonders how PW 1, an adult witnessed the accident. I think here, learned counsel misapprehended the answer that PW 1 gave because the question I suppose he was the one who put to PW 1 was whether the children were accompanied by an adult and PW 1 said that there was no adult, meaning with the children. Otherwise, the evidence by PW 1 and even DW 1 shows that there were many people around including boda boda riders.
30. I have set out above the evidence of the appellants and that of the respondents on how the accident occurred.
31. But the trial court found that no clear evidence was brought before the court as to how the accident occurred. In evaluating the evidence, the trial magistrate placed much reliance on the evidence of the investigating officer even after finding that he never produced the police file that would have had a sketch map, the motor vehicle inspection report and other documents which would have showed the exact point of impact to buttress the appellants’ version of events. The learned trial magistrate found that there was no evidence tendered to show what constituted the defendant’s negligence and how he caused the accident and that no one had demonstrated how the accident occurred.
32. The learned trial magistrate then made what I find to be a most baffling statement. That, nonetheless, the defendant (respondent herein) had opted to give his evidence and his defence confirmed that he had hit the deceased. However, the learned trial magistrate did not believe the version of the story of the respondent’s assertion that the deceased was first hit by a Probox. She also found that the respondent had failed to produce the police file, a public document and the motor vehicle inspection report in order to fortify his version of the story. In fact, the respondent had produced the motor vehicle inspection report as part of the documents filed in support of his case. The report however
33. I am inclined to find that the learned trial magistrate erred in her approach while evaluating the evidence before her. I find that the trial magistrate misapprehended the facts as presented before her from the evidence of PW 1 and DW 1 in arriving at that finding that there was no clear evidence before the court on how the accident occurred.
34. There was evidence of two eye witnesses, PW 1 and DW 1. What the learned magistrate needed to do was to evaluate and come to a conclusive finding on whether the evidence of either of them was believable or not. Granted that each of them would be biased, PW 1 by the need to be in favour of his deceased daughter and DW 1 by the need to exonerate himself from blame., the court needed to determine which was the two versions was more credible, always remembering that the onus is upon the plaintiffs to prove their case on a balance of probability.
35. In arriving at the finding that there was no evidence that the vehicle veered off the road and hit the deceased, the learned trial magistrate was clearly wrong because the evidence of PW 1 was exactly that. It appears that the learned magistrate thought that evidence that the vehicle of veered off the road would only be tendered through production of sketch plans, maps and legends and measurements of the scene of the accident. Such evidence is good where it is available. It would support or rebut the evidence of the eye witnesses. In this case however, it was not made available.
36. There is no explanation why the investigating officer failed to bring the legends, measurements and sketch maps, if he prepared any, to court as evidence. Secondly, whereas the father of the deceased indicates that he was at the scene and witnessed how the accident occurred, there is no indication that the investigating officer sought information from him on how the accident occurred. The investigating officer said he only took statements from the driver and his passenger. He then failed to produce in court his own evidence of investigations at the scene in the form of legends, measurements and sketch maps. Yet the trial court went ahead to rely on his evidence, casting doubt on the evidence of two eye witnesses to the accident. I find that in doing so, the trial court failed to take into account relevant evidence that had been tendered by both parties to support their respective cases. In doing so, the trial court fell into error.
37. The learned trial magistrate did not make a finding on why she did not find the evidence of PW 1 reliable to prove the appellant’s case on a balance of probability. In considering the evidence tendered at the trial and placing the evidence of PW 1 and DW 1 side by side, I find that the evidence of PW 1 was the more probable and reliable, even as he would tend to be biased towards the deceased as his daughter. The evidence of DW 1 on the other was full of major inconsistencies that made it unreliable.
38. Learned counsel for the respondent submits that the evidence of PW 1 is critically wanting in particulars yet the PW 1 gave a version of the accident that I find plausible. Learned counsel has not indicated which aspect of the evidence required which particulars.
39. The learned trial magistrate found that although PW 1 stated that he was an eye witness he did not give any evidence of what he witnessed happening. That finding was contrary to the evidence of PW 1 that the vehicle veered off the road and hit the deceased. That the driver did not stop immediately as claimed by DW 1 and PW 1 had to pursue the lorry on a motor bike and stopped it at Kutus. That upon getting the driver, they handed him over to police officers at Kutus police station who later called their counterparts from Kerugoya polce station to handle the situation. In cross-examination, PW 1 maintained that the child was off the road and not close to the tarmac. There was nothing in cross-examination and in the evidence of DW 1 that discounted the evidence of PW 1.
40. The evidence of DW 1 was not credible for reasons that whereas he said he was driving at a speed of 40Km/Hr and that the lights on the lorry were on and he could see the road ahead properly, he first claimed that he did not see the child. He then changed when pressed by learned counsel and said he saw the child. However, he maintained that he did not realize that he had hit a child until he was told so by people who were around. It is not plausible that he could have been driving failry slowly, he could see that a Probox was speeding and yet not see that it had hit a child. His answer that the child could have been crossing the road was not definitive. Having denied that he saw how the child was allegedly hit by the alleged Probox, there was no way he could have seen that the child was crossing the road at the time.
41. Therefore, the issue of the child crossing or attempting to cross the road cannot arise as there was no such evidence either from PW 1 or DW 1 or from the investigations by PW 2.
42. The undisputed evidence on record is that the accident did occur involving the respondent’s vehicle and the deceased. The fact that DW 1 could not even notice that there were children beside the road lends credence to PW 1’s evidence that, perhaps in a moment of inattention by DW 1, the lorry veered off the road and hit the deceased.
43. The appellants had the onus of proof of their case on a balance of probabilities. Towards the discharge of that duty the appellants through PW 1 led evidence on how the accident occurred. There was evidence that the vehicle veered off the road and hit the deceased causing her fatal injuries.
44. The Court of Appeal in Nandwa -vs- Kenya Kazi Ltd [1988] KLR 488 considering the issue negligence held that:
“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the cause of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in favour of the plaintiff unless the defendants’ evidence provides some answer adequate to displace that inference.”
45. I find no evidence to attribute any contributory negligence upon the deceased herein.
46. Accordingly, I find and hold that respondent herein should wholly bear the blame for the accident. I set aside the judgment of the trial court on liability and substitute it with a finding of 100% liability against the respondent in this appeal.
47. Consequently, I find that the appeal succeeds while the cross-appeal is dismissed with costs for both to the appellants.
48. There was no appeal on the quantum of damages awarded and so the same remains as per the judgment of the trial court.
49. Consequently, judgment is entered for the respondents against the appellants in the sum of KShs 930,000/= together with interest at court rates.
50. Orders accordingly.
Signed, Dated and Delivered on the Virtual Platform Teams this 5th day of August 2025.
ANDAYI W. FRANCIS
JUDGE
Delivered in the presence of:
Mwangi Maina for the appellants.
Ms Lumumba for the respondent.
Job, Court Assistant.
ANDAYI W. FRANCIS
JUDGE
Court: There shall be a stay of execution for 30 days as prayed by learned counsel.
Parties to be supplied with certified copies of the judgment upon payment of the requisite fee. A copy of the judgment will be uploaded on the CTS.
ANDAYI W. FRANCIS
JUDGE