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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL APPEAL NO. E015 OF 2024
FORMERLY CIVIL APPEAL NO. E002 OF 2022
JAMES ALIA SAGARAM……………….………..………….……………….APPELLANT
VERSUS
JOY WASIRIMBA……..………………………….……..……..……….1ST RESPONDENT
CHINA RAILWAY NO.5
ENGINEERING GROUP CO. LTD…………………………………….2ND RESPONDENT
(Being an appeal from the Judgment and Decree of Hon. C. Wekesa (PM) in Lodwar SPMCC No. 28 OF 2021 delivered on 10th May, 2022)
JUDGMENT
Background of the Appeal
1. The Appellant instituted proceedings against the Respondents by way of a plaint dated 27th September 2021, seeking special damages in the sum of Kshs. 11,050/-, general damages for pain, suffering and loss of amenities, together with costs and interest of the suit.
2. The Appellant averred that on or about the 28th day of June 2019, he was lawfully travelling as a passenger in motor vehicle registration number KG 8488, a Toyota Hilux Single Cab owned by the 2nd Respondent, when at upon reaching Ng’akorioh’ora area, along the Lodwar–Elie Springs Road,around, at about 1700 hours, the 1st Respondent, through negligent operation of the vehicle, caused it to veer off the road and roll, resulting in the Appellant sustaining serious bodily injuries. The Appellant relied on the doctrine of res ipsa loquitur to infer negligence on the part of the 1st Respondent.
3. The Respondents, in their separate statements of defence, respectively dated 22nd and 27th September 2021, denied the claim and averred that, if an accident did occur, it was solely attributable to the negligence of the Appellant, who was alleged to have been driving the motor vehicle at the time of the incident. Both further invoked the doctrines of volenti non fit injuria and res ipsa loquitor to resist the appellants claim.
4. Upon consideration of the evidence, the trial court in its reserved judgment delivered on 10th May 2022, the court held that the Appellant had failed to establish his case on a balance of probabilities, found as a fact that it was the appellant who was in fact in control of the motor vehicle and occasioned the accident and consequently dismissed the claim.
5. Aggrieved by the trial court’s findings, the Appellant lodged a Memorandum of Appeal dated 6th June 2022 seeking to have the said decision set aside, urging this court, a first appellate court, to re-evaluate the evidence led at trial and thus determine the issues of liability and quantum of damages afresh, make on conclusions, allow the appeal and award the Appellant the costs of the appeal.
6. The appeal is premised on some seven grounds crafted around the quality of evidence led by both sides and whether there was proof of the claim to the requisite standards.
7. From the court’s re-evaluation of the evidence led by the two witnesses from the appellant’s side and the three from the respondents’ side, both sides agree, by and large that; the motor vehicle was owned by the 2nd respondent and assigned to the use of the 1st respondent pursuant to a contract for construction of the Lochwang’matak-Lodwar highway; that indeed the accident occurred and the appellant was injured while aboard the said motor vehicle. What is disputed, however, is the question whether the appellant was a passenger or the driver.
8. To the court, even though the grounds of appeal are as many as crafted, in essence, and because the cause of action was that of negligence, the determination of the appeal on liability shall entirely depend on whether it was the 1st respondent or the Appellant who was in charge of the control of the motor vehicle as a driver at the time the accident occurred. The decision on the award and quantum of damages will then arise.
9. The matter was directed by the court to be canvassed through written submissions. All the parties have filed respective and rival submissions which the court has had the benefit of reading and drawing valuable contribution. It shall thus not be useful to rehash the corpus of the submissions in a seriatim way in this decision but it is sufficient that what each side posits be taken into account.
10. Very briefly the Appellant submits that the trial court failed to take into consideration relevant consideration while choosing to consider irrelevant consideration, by misrepresenting DW2’s evidence that DW2 found the driver trapped in the driver’s seat, contrary to the actual testimony and for doubting the Appellant’s credibility based on the inaccurate conclusions for which it is contended that the trial magistrate’s reliance on incorrect and irrelevant findings undermines the integrity of the judgment.
11. On whether the Appellant proved his case on a balance of probabilities, it is submitted in the affirmative on the basis that, the occurrence of the accident on 28th June 2019 is undisputed; the motor vehicle involved was registration number KG 8488 Toyota Hilux, with no other vehicle implicated; at the time of the accident, the 1st Respondent had legal and actual possession of the motor vehicle as an employee of the 2nd Respondent and that the 1st Respondent was the driver at the material time. The decision in Rento East Africa ltd vs Donimic Mutua Ngonzi (2021) eKLR was cited on when an appellate court would interfere with the factual findings by the trial court.
12. On who was the driver, it is contended that the Respondents did not establish that the appellant was the driver of the motor vehicle at the time of the accident, as they neither called any police officer to testify nor produced a police abstract identifying the Appellant as the driver.
13. Lastly, it is submitted that the appellant sustained injuries as evidenced by the medical report prepared by Dr. Joseph Sokobe and prays for an award of Kshs. 2,004,400/- in general damages, relying on the Court of Appeal decision in Edwin Otieno Japaso v Easy Coach Bus Limited (2016) eKLR, where a claimant with similar injuries was awarded the sum
Respondents’ Submissions
14. On his part, the Respondents submits that there exist conflicting accounts regarding who was driving at the time of the accident with the Appellant alleging it was the 1st Respondent, and vice versa. It is then argued that while the Appellant’s version is uncorroborated, the 1st Respondent’s account is supported by two witnesses who were present at the scene who maintained that the Appellant was found trapped in the driver’s seat, thus suggesting he was the driver immediately prior to the accident.
15. It was further contended that even if the Appellant had proved his case, which they deny, granting an award would amount to double compensation, in line with the decision in Okola v Thermopak Limited (Civil Appeal No. E777 of 2024), where the court held that double compensation under common law and WIBA is impermissible. It was pointed out that the Appellant, during his testimony, admitted to the court that he had been compensated under the Work Injury Benefits Act (WIBA).
16. The key issue for determination by the court is whether the Appellant proved his case on a balance of probabilities and if so, what would be the proper apportionment of liability and appropriate quantum of damages.
Analysis and Determination
17. This being a first appeal, the court is obligated to re-evaluate, reappraise and reconsider the entire evidence afresh with a view to coming to own conclusions while bearing in mind that it did not see or hear the witnesses testify. See Peter M. Kariuki v Attorney General [2014] eKLR.
18. In cases where the tort of negligence is pleaded as the cause of action, the claimant bears the burden of proving a duty of care, breach of that duty by the defendant and resultant damage.
19. The evidence from the two people who were at the scene as eye witnesses,1st Respondent as DW1 and the appellant disagree on who was driving the motor vehicle at the point the accident occurred. That is understandable if regard is given to the uncontested fact that the two enjoyed intimacy on the date of the accident which romance had died by the time both gave evidence.
20. Because of that divergence, it requires the evidence of a third party to unlock the stalemate unless the court was to find a reason to prefer one version against the other. Fortunately, in this matter there were other witnesses who testified in the name of PW2, DW2 ns DW3
21. The evidence of PW2 has no much weight because his was merely t produce the police abstract, not even the file. When cross examined, the witness was unequivocal that he was not stationed at the station at that time, was never the investigating officer, never visited the scene and was thus unable to explain how the scene was.
22. To the contrary, DW2 told the court that after the police assessed the scene, he dropped them at the police station then proceeded to drop the 1st respondent at her residence. After arrival at the residence of the 1st respondent, he was engaged by the 1st respondent who confided in him that it was indeed the appellant on the wheels as at the date of the accident. In addition, it was the evidence of DW3 that when he reached the scene, the motor vehicle had overturned and rested on its roof with the appellant trapped in. he added that it took him with the help pf others to turn it on its wheels to and help the appellant out.
23. The trial court analysed that evidence and concluded that it was the appellant and not the 1st respondent who was in control as the driver. This court in its own reevaluation of the evidence on record finds that conclusion on evaluation of the facts by the trial court to disclose any error in evaluation as to invite its interference. The court finds that it was the appellant who was in control of the motor vehicle and that if the accident was occasioned by negligence that negligence was by the appellant and none else. If he was the driver and the person with the duty to be on the lookout and to avoid the vehicle overturning, then his injury was inflicted by own negligence for which nobody else can be called upon to shoulder. The appellant must thus be held to have been the author of the accident and the resultant personal injuries to self. For that reason, the finding by the trial court cannot be faulted but must be upheld. The appeal on liability thus fails and is dismissed.
24. The appeal on liability having failed and the trial court having assessed the damages it would have assessed had the suit succeeded, no useful purpose would be served by this court in embarking on fresh assessment of damages. That becomes more compelling when appreciation is had of the position of the law that assessment of damages invokes judicial discretion and that it takes an exceptionally strong case to justify interference with a decision reached upon exercise of judicial discretion.
25. Having found the Appellant wholly liable for the causation of the suit accident, the court finds and holds that the appeal is devoid of merit and is accordingly dismissed with costs.
Dated, signed and delivered at Lodwar this 22nd day of August, 2025
Patrick J O Otieno
Judge
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL APPEAL NO. E015 OF 2024
FORMERLY CIVIL APPEAL NO. E002 OF 2022
JAMES ALIA SAGARAM……………….………..………….……………….APPELLANT
VERSUS
JOY WASIRIMBA……..………………………….……..……..……….1ST RESPONDENT
CHINA RAILWAY NO.5
ENGINEERING GROUP CO. LTD…………………………………….2ND RESPONDENT
(Being an appeal from the Judgment and Decree of Hon. C. Wekesa (PM) in Lodwar SPMCC No. 28 OF 2021 delivered on 10th May, 2022)
JUDGMENT
Background of the Appeal
1. The Appellant instituted proceedings against the Respondents by way of a plaint dated 27th September 2021, seeking special damages in the sum of Kshs. 11,050/-, general damages for pain, suffering and loss of amenities, together with costs and interest of the suit.
2. The Appellant averred that on or about the 28th day of June 2019, he was lawfully travelling as a passenger in motor vehicle registration number KG 8488, a Toyota Hilux Single Cab owned by the 2nd Respondent, when at upon reaching Ng’akorioh’ora area, along the Lodwar–Elie Springs Road,around, at about 1700 hours, the 1st Respondent, through negligent operation of the vehicle, caused it to veer off the road and roll, resulting in the Appellant sustaining serious bodily injuries. The Appellant relied on the doctrine of res ipsa loquitur to infer negligence on the part of the 1st Respondent.
3. The Respondents, in their separate statements of defence, respectively dated 22nd and 27th September 2021, denied the claim and averred that, if an accident did occur, it was solely attributable to the negligence of the Appellant, who was alleged to have been driving the motor vehicle at the time of the incident. Both further invoked the doctrines of volenti non fit injuria and res ipsa loquitor to resist the appellants claim.
4. Upon consideration of the evidence, the trial court in its reserved judgment delivered on 10th May 2022, the court held that the Appellant had failed to establish his case on a balance of probabilities, found as a fact that it was the appellant who was in fact in control of the motor vehicle and occasioned the accident and consequently dismissed the claim.
5. Aggrieved by the trial court’s findings, the Appellant lodged a Memorandum of Appeal dated 6th June 2022 seeking to have the said decision set aside, urging this court, a first appellate court, to re-evaluate the evidence led at trial and thus determine the issues of liability and quantum of damages afresh, make on conclusions, allow the appeal and award the Appellant the costs of the appeal.
6. The appeal is premised on some seven grounds crafted around the quality of evidence led by both sides and whether there was proof of the claim to the requisite standards.
7. From the court’s re-evaluation of the evidence led by the two witnesses from the appellant’s side and the three from the respondents’ side, both sides agree, by and large that; the motor vehicle was owned by the 2nd respondent and assigned to the use of the 1st respondent pursuant to a contract for construction of the Lochwang’matak-Lodwar highway; that indeed the accident occurred and the appellant was injured while aboard the said motor vehicle. What is disputed, however, is the question whether the appellant was a passenger or the driver.
8. To the court, even though the grounds of appeal are as many as crafted, in essence, and because the cause of action was that of negligence, the determination of the appeal on liability shall entirely depend on whether it was the 1st respondent or the Appellant who was in charge of the control of the motor vehicle as a driver at the time the accident occurred. The decision on the award and quantum of damages will then arise.
9. The matter was directed by the court to be canvassed through written submissions. All the parties have filed respective and rival submissions which the court has had the benefit of reading and drawing valuable contribution. It shall thus not be useful to rehash the corpus of the submissions in a seriatim way in this decision but it is sufficient that what each side posits be taken into account.
10. Very briefly the Appellant submits that the trial court failed to take into consideration relevant consideration while choosing to consider irrelevant consideration, by misrepresenting DW2’s evidence that DW2 found the driver trapped in the driver’s seat, contrary to the actual testimony and for doubting the Appellant’s credibility based on the inaccurate conclusions for which it is contended that the trial magistrate’s reliance on incorrect and irrelevant findings undermines the integrity of the judgment.
11. On whether the Appellant proved his case on a balance of probabilities, it is submitted in the affirmative on the basis that, the occurrence of the accident on 28th June 2019 is undisputed; the motor vehicle involved was registration number KG 8488 Toyota Hilux, with no other vehicle implicated; at the time of the accident, the 1st Respondent had legal and actual possession of the motor vehicle as an employee of the 2nd Respondent and that the 1st Respondent was the driver at the material time. The decision in Rento East Africa ltd vs Donimic Mutua Ngonzi (2021) eKLR was cited on when an appellate court would interfere with the factual findings by the trial court.
12. On who was the driver, it is contended that the Respondents did not establish that the appellant was the driver of the motor vehicle at the time of the accident, as they neither called any police officer to testify nor produced a police abstract identifying the Appellant as the driver.
13. Lastly, it is submitted that the appellant sustained injuries as evidenced by the medical report prepared by Dr. Joseph Sokobe and prays for an award of Kshs. 2,004,400/- in general damages, relying on the Court of Appeal decision in Edwin Otieno Japaso v Easy Coach Bus Limited (2016) eKLR, where a claimant with similar injuries was awarded the sum
Respondents’ Submissions
14. On his part, the Respondents submits that there exist conflicting accounts regarding who was driving at the time of the accident with the Appellant alleging it was the 1st Respondent, and vice versa. It is then argued that while the Appellant’s version is uncorroborated, the 1st Respondent’s account is supported by two witnesses who were present at the scene who maintained that the Appellant was found trapped in the driver’s seat, thus suggesting he was the driver immediately prior to the accident.
15. It was further contended that even if the Appellant had proved his case, which they deny, granting an award would amount to double compensation, in line with the decision in Okola v Thermopak Limited (Civil Appeal No. E777 of 2024), where the court held that double compensation under common law and WIBA is impermissible. It was pointed out that the Appellant, during his testimony, admitted to the court that he had been compensated under the Work Injury Benefits Act (WIBA).
16. The key issue for determination by the court is whether the Appellant proved his case on a balance of probabilities and if so, what would be the proper apportionment of liability and appropriate quantum of damages.
Analysis and Determination
17. This being a first appeal, the court is obligated to re-evaluate, reappraise and reconsider the entire evidence afresh with a view to coming to own conclusions while bearing in mind that it did not see or hear the witnesses testify. See Peter M. Kariuki v Attorney General [2014] eKLR.
18. In cases where the tort of negligence is pleaded as the cause of action, the claimant bears the burden of proving a duty of care, breach of that duty by the defendant and resultant damage.
19. The evidence from the two people who were at the scene as eye witnesses,1st Respondent as DW1 and the appellant disagree on who was driving the motor vehicle at the point the accident occurred. That is understandable if regard is given to the uncontested fact that the two enjoyed intimacy on the date of the accident which romance had died by the time both gave evidence.
20. Because of that divergence, it requires the evidence of a third party to unlock the stalemate unless the court was to find a reason to prefer one version against the other. Fortunately, in this matter there were other witnesses who testified in the name of PW2, DW2 ns DW3
21. The evidence of PW2 has no much weight because his was merely t produce the police abstract, not even the file. When cross examined, the witness was unequivocal that he was not stationed at the station at that time, was never the investigating officer, never visited the scene and was thus unable to explain how the scene was.
22. To the contrary, DW2 told the court that after the police assessed the scene, he dropped them at the police station then proceeded to drop the 1st respondent at her residence. After arrival at the residence of the 1st respondent, he was engaged by the 1st respondent who confided in him that it was indeed the appellant on the wheels as at the date of the accident. In addition, it was the evidence of DW3 that when he reached the scene, the motor vehicle had overturned and rested on its roof with the appellant trapped in. he added that it took him with the help pf others to turn it on its wheels to and help the appellant out.
23. The trial court analysed that evidence and concluded that it was the appellant and not the 1st respondent who was in control as the driver. This court in its own reevaluation of the evidence on record finds that conclusion on evaluation of the facts by the trial court to disclose any error in evaluation as to invite its interference. The court finds that it was the appellant who was in control of the motor vehicle and that if the accident was occasioned by negligence that negligence was by the appellant and none else. If he was the driver and the person with the duty to be on the lookout and to avoid the vehicle overturning, then his injury was inflicted by own negligence for which nobody else can be called upon to shoulder. The appellant must thus be held to have been the author of the accident and the resultant personal injuries to self. For that reason, the finding by the trial court cannot be faulted but must be upheld. The appeal on liability thus fails and is dismissed.
24. The appeal on liability having failed and the trial court having assessed the damages it would have assessed had the suit succeeded, no useful purpose would be served by this court in embarking on fresh assessment of damages. That becomes more compelling when appreciation is had of the position of the law that assessment of damages invokes judicial discretion and that it takes an exceptionally strong case to justify interference with a decision reached upon exercise of judicial discretion.
25. Having found the Appellant wholly liable for the causation of the suit accident, the court finds and holds that the appeal is devoid of merit and is accordingly dismissed with costs.
Dated, signed and delivered at Lodwar this 22nd day of August, 2025
Patrick J O Otieno
Judge
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