1. The Appellant KENNEDY CHAMWAMA filed a suit in the lower Court seeking general damages, special damages, costs of the suit and interest following personal injuries sustained from a road accident on 11/04/2021 (material day) at Mlima Kiu area along the Nairobi-Mombasa highway. It was his case that he was lawfully onboard motor vehicle KBB 803K/ZC8212 when motor vehicle KCZ 318K/ZC8212 was so negligently driven that it rammed on KBB 803K/ZC8212 and as a result, he sustained severe bodily injuries.
2. The 1st LOCHAB BROS LTD and 3rd DANIEL KIPSANG KETER Respondents filed a joint statement of defence, denied all the allegations in the plaint putting the plaintiff to strict proof thereof. It was their position that if the accident occurred as alleged, it was solely caused or substantially contributed to by negligence and carelessness on the part of the Appellant, his principle or agent.
3. The 2nd MARYAN HASSAN MOHAMMED Respondent did not file a response and an interlocutory judgment was entered against her.
4. The Appellant replied to the defence where he joined issues with it and reiterated the contents of his plaint.
5. After the preliminaries, the matter proceeded to trial and judgment was eventually delivered in favor of the Respondents. The trial court found that the Appellant had not established his case to the required standard and dismissed it with costs.
The Appeal
6. Aggrieved by the decision, the Appellant filed this appeal and raised the following grounds;
a) The learned magistrate erred in law and in fact in dismissing the Appellant’s suit.
b) The learned magistrate erred in law and in fact by holding that the Appellant had failed to discharge burden of proof against the evidence presented in court.
c) The learned magistrate erred in law and in fact by failing to consider the Appellant’s submissions.
d) The learned magistrate erred in law and in fact by considering facts not relevant to the case and failing to consider relevant facts.
e) The learned magistrate erred in law in awarding costs to the 1st and 3rd Respondents.
7. The parties elected to canvass the appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions.
The Appellant’s Submissions
8. Th Appellant elected to argue all the grounds of appeal together. He submitted that despite filing a statement of defence, the Respondents did not call any witness. He submitted that there was no evidence by the Respondents contradicting the evidence that the two vehicles were present at the scene and that they caused the accident
9. It was submitted that cross examination of the Appellant cannot be taken as a defence to the claim and that reliance on the same by the trial court to decide who was to blame was a clear misdirection and reliance on irrelevant matters which led to the wrong decision.
10. It was submitted that The Appellant sufficiently proved that the accident occurred and that the Respondent was liable and that there was no evidence at all attributing contribution on the part of the Appellant. Reliance was placed on Cosmas M. Mutisya -vs- JAP Quality Motors & Anor (2018) eKLR where the court stated;
“Thus, in our instant case the court finds that the doctrine of Res Ipsa Loquitor obtains placing burden on the driver to offer an explanation as to the happening leading to the accident which burden he failed to discharge thus he was negligent and the 2nd Defendant vicariously liable.”
11. It was submitted that the documents including statement of defence filed in the trial court may not be used to guide the trial court on assessment of liability since there was no witness called to testify on the allegations contained therein. Reliance was placed on Janet Kaphiphe Ouma & Anor -vs-Marie Stopes International (Kenya) HCCC No. 68 of 2007 where the court stated;
“8. In this matter, apart from filing its statement of defence, the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remains uncontroverted and the statement in the defence therefore remains mere allegations...section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.
9. In the absence of evidence in rebuttal from the Respondent, it follows that the Appellant proved his case on a balance of probabilities against the Respondent. Hence I find the Respondent liable in damages to the Appellant at 100%”
12. Further reliance was placed on Kenya Power & Lighting Co Ltd -vs- Rassul Nzembe Mwadzaya [2020] eKLR where the court stated;
“13. Further, it is trite that if no evidence is tendered to support an averment in a pleading, in this case, the defence, such averment stand as such as mere statement. Further, if there is no rebuttal of evidence by a party, that evidence remains uncontroverted. In the case of John Wainaina Kagwe..vs..Hussein Dairy Ltd[2013]eKLR, the Court of Appeal held as follows:-
“The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no fresh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”
13. In cases where it is difficult to apportion liability, the Appellant relied on Lakhamshi -vs- Attorney General, (1971) E A 118, 120 where the Honourable Justice Spry V P rendered himself thus;
“In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility…, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.”
14. On quantum, it was submitted that an award of Ksh. 800,000/= would be adequate recompense for the injuries and reliance placed on the following cases;
a) Samson Macharia Mwangi & another -vs- Abdifatah Mohamed Khalif where the Plaintiff was awarded a sum of Kshs. Shs.550,000/= in 2017.
b) Elizaphen Mokaya Bogonko -vs- Fredrick Omondi Ouna [2022] eKLR where the Plaintiff where the plaintiff was awarded general damages of Kshs. 500,000/= for pain and suffering.
15. It was submitted that Special Damages of Kshs. 4,100/= was strictly proved and that a demand letter and Statutory Notice were served on the Respondents hence the Appellant was entitled to costs of the suit.
Submissions by the 1st & 3rd Respondents
16. The Respondents identified the issues for determination to be;
a) Whether the Appellant proved his case on a balance of probabilities.
b) Whether the learned magistrate erred in awarding the Respondent costs of the suit.
17. On whether the Appellant proved his case on a balance of probabilities, reliance was placed on sections 107 to 109 of the Evidence Act for the submission that 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. That 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. Further, it was submitted that 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. Reliance was placed on Evans Nyakwana -vs- Cleophas Bwana Ongaro (2015) eKLR where it was held that;
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
18. Further reliance was placed on William Kabogo Gitau -vs- George Thuo & 2 Others [2010] 1 KLR 526 where the court stated that:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
19. It was submitted that from the copy of records provided as evidence by the Plaintiff, the Motor Vehicle KCZ 318K is Station Wagon saloon car and to be precise, a Toyota Passo owned by the 2nd Defendant while Motor Vehicle ZC6951 is a Trailer owned by the 1st Defendant. That the Plaintiff was unable to explain the relationship between a Toyota Passo and the Trailer. That in his testimony, he claimed that both Motor vehicles were a lorry and a trailer wherein the KCZ 318K was the Lorry hauling the trailer ZC691.
20. It was submitted that the Plaintiff’s testimony was inconsistent with the documents and evidence provided. It was contended that it is not possible for a Toyota Passo to pull a trailer and that the Plaintiff did not make any attempts to address or explain the discrepancy when granted the chance to do so during re-examination.
21. It was submitted that liability must always follow fault and that it is incumbent upon the plaintiff to show that the Defendants ware indeed liable. That there is no relationship between the two motor vehicles and it is not possible that the defendants were driving the saloon car and the trailer at the same time. Reliance was placed on Rambhai Shivabhai Patel & Another -vs- Brigadier-General Arthur Corrie Lewin [1943] 10 EACA 36 where the court held that: “the mere occurrence of an accident is not in itself evidence of negligence and that there must be reasonable evidence of negligence.”
22. The Respondents also cited Simpson -vs- Peat (1952) 1 All ER 447 where it was held that: “…… the mere fact that an accident occurs does not follow that a particular person has driven dangerously or without care and attention.”
23. Further, the Respondents cited Henderson -vs- Henry E Jenkins and Sons [1970] AC 232 at 301 where it was held that:
“In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by the negligence on the part of the defendant. That is the issue throughout the trial, and in giving judgement at the end of the trial, the Judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by the negligence on the part of the defendant, and if he is not satisfied the plaintiff’s action fails. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence on the part of the defendants, the issue will be decided in the plaintiff’s favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential burden of proof resting on the defendants.”
24. It was submitted that the Plaintiff failed to prove negligence on the part of the Defendants at all.
25. It was submitted that on the face of it, the abstract indicates that the driver of Motor Vehicle Registration number KCZ 318K & ZC 6951 is to be blamed. The Respondents contended that the police officer in this alleged incident did not testify and as such, the police abstract is not conclusive proof of liability as there was no evidence to corroborate it. Reliance was placed on Kennedy Nyangoya -vs- Bash Hauliers (2016) eKLR where the court held that:
“….even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it…”
26. It was submitted that the learned magistrate properly exercised his discretion in arriving at that conclusion based on the evidence produced before him. The Respondents cited United India Insurance Co. Ltd -vs- East African Underwriters (Kenya) Ltd [1985] E.A: where Madan JA (as he then was) stated;
“The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”
27. It was submitted that the trial court properly exercised its discretion when it condemned the Appellant to pay the costs of the claim. Reliance was placed on section 27 of the Civil Procedure Act for the submission that the issue of costs is the discretion of the court. That the basic rule on attribution of costs is that costs follow the event. It was contended that requirements to follow the provisions of the law cannot be termed as a procedural technicality capable of being cured by the provisions of Article 159 (2) (d) of the Constitution.
28. In conclusion, it was submitted that the appeal is devoid of any merit and should be dismissed with costs to the Respondents.
Duty of Court
29. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.
30. I have carefully considered the grounds of appeal, the rival submissions and entire record, and the the issues for determination are;
a) Whether the trial court erred by dismissing the Appellant’s suit.
b) What is the quantum of damages, if any?
Analysis & Determination
Whether the trial court erred by dismissing the Appellant’s suit.
31. The Appellant pleaded that the 2nd Respondent was the registered owner of KCZ 318K, that the 1st Respondent was the registered owner of ZC 6951 and that the 3rd Respondent was the driver of KCZ 318K/ ZC 6951. He pleaded that on 11/04/2021, he was lawfully onboard motor vehicle KBB 803K/ZC 8212 along Nairobi-Mombasa Road at Mlima Kiu area when motor vehicle KCZ 318K/ ZC 6951 was driven so negligently that it rammed into KBB 803K/ZC 8212 as a result of which he sustained severe bodily injuries.
32. In his statement dated 07/01/2022 which he adopted as his evidence-in- chief, he stated that on the material day, he was in motor vehicle KBB 803K/ZC 8212 which had a puncture and he had been instructed to guard it. The vehicle had been parked on the extreme left side facing the Nairobi direction. At around 2100hrs, it was raining and he got into the motor vehicle and sat on the left side of the cabin. That while in the cabin, motor vehicle KCZ 318K/ ZC 6951 approached towards Mombasa and was driven at a high speed and was overtaking. It lost control and hit KBB 803K/ZC 8212, squeezed it and pushed it around 10 meters from where it was parked.
33. That he was assisted by good Samaritans to get out of the vehicle through the front glass. The police arrived at the scene at around midnight and he was taken to the house. He went to Sultan Hamud County Hospital the following day where he was treated and discharged and attended clinics on daily basis. He later reported the accident at Salama Police Station where he recorded a statement and was issued with a P3 form and police abstract. He produced the documents in his list of documents as P. Ex 1-8.
34. On cross-examination, he said that the accident was caused by the lorry KCZ 318K/ ZC 6951. That the lorry had a trailer ZC 6951.
35. The Respondents did not call any witness.
36. The police abstract produced as P. Ex 1 indicates that on the material day at about 2110 hours, there was an accident at Mlima Kiu area along Nairobi-Mombasa Road involving motor vehicles KCZ 318K/ ZC 6951 and KBB 803K/ZC 8212. It also indicates that motor vehicle KCZ 318K/ ZC 6951was to blame and its driver was Daniel Kipsang Keter (3rd Respondent).
37. The copies of records produced as P. Ex 3 show that motor vehicle KCZ 318K was registered in the name of Maryan Hasan Mohammed (2nd Respondent) while ZC 6951 was registered in the name of Lochab Bros Ltd (1st Respondent). On a balance of probability therefore the Appellant managed to establish the ownership of motor vehicle KCZ 318K/ ZC 6951.
38. As to how the accident occurred, the only evidence on record is that of the Appellant. Although the 1st and 3rd Respondents filed a statement of defence and denied liability, they did not call any witness. It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings.
39. Further, in Janet Kaphiphe Ouma & Another -vs- Marie Stopes International (Kenya): Kisumu HCCC No. 68 of 2007, Ali-Aroni, J stated;
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
40. In his finding on liability, the trial magistrate stated as follows;
“I note that according to the abstract produced by the plaintiff, motor vehicle registration number KCZ 318K is described as Foton Lorry. It is quite curious that in his pleadings and statement the plaintiff was completely silent on the make of the vehicles involved in the accident, particularly motor vehicle registration KCZ 318K. It was only in re-examination that he made reference to trailer ZC 6951 being hauled by lorry. His evidence in the form of abstract and copy of records are contradictory as the two documents describe the same motor vehicle registration number KCZ 318K as being both a lorry and a station wagon, which cannot be. It also stands to reason that a station wagon vehicle cannot haul a trailer.”
41. I have anxiuosly examined the copy of records produced in evidence. The one for motor vehicle KCZ 318K shows that the make of the vehicle is Toyota, the number of axels is 2, the tare weight (kgs) is 910, the body type is station wagon, the vehicle model is Passo and the load capacity(kgs) is 275. All indication therefore is that this was a small car. On the other hand, the copy of records for ZC6951 shows that the vehicle type is trailer, make ROR, number of axels-3, tare weight(kgs)-8000, body type-trailer, vehicle model-S/Trailer, load capacity (kgs)-30100. In all common sense therefore, it was not possible for such a small car to be hauling such a huge trailer.
42. Further, the Appellant’s statement is that after being rescued by good Samaritans from the scene, he was taken to the house and then he went to Sultan Hamud County Hospital the following day. This statement makes me wonder why an injured person would be taken to the house instead of the hospital. The treatment notes from Sultan Hamud County Hospital indicate the treatment date as 11/04/2021 which was the date the accident allegedly happened yet the Appellant himself stated that he went to hospital the day after the RTA. That creates the impression that treatment notes were backdated to appear as though the Appellant went to the hospital immediately.
43. Further, I looked at the Abstract. It shows that report of the RTA was made vide OB 16/12/2021, and the victim was a pedestrian.
44. The P3 form indicates the Ref as OB 16/12/2021, dated 16/7/2021 and that the Appellant was sent to the hospital for examination on 19/07/2021 and on the section requiring the state of victims clothing to be indicated, the form states; ‘His trouser was torn and stained with blood’. This means that the Appellant went for medical examination three months after the alleged accident and still wore the same clothes he had on the accident night. In my view, that is highly improbable.
45. Consequently, the evidence produced by the Appellant does not support his pleadings. It is not probable that the accident occurred as pleaded when the evidence shows that the supposed prime mover was a Toyota Passo. This throws the authenticity of the documents produced by the plaintiff into question. The burden to controvert a case arises where the evidence adduced by a claimant establishes the case on a balance of probabilities. Here, the claimant’s own evidence is contradictory and improbable and founds for the finding that the trial court was not in error in the order of dismissal..
46. It is settled that even where a trial court dismisses a claim, it has an obligation to assess the damages it would have awarded if the claim had succeeded. The trial court did not assess damages and to that extent, it erred.
47. The injuries sustained were pleaded as follows;
a) Multiple cut wounds on the scalp
b) Multiple cut wounds on the face
c) Blunt injuries to the left upper limb
d) Blunt injuries to the lower back
e) Cut wound on the left ring finger
f) Cut wounds on the penis(gland-penis)
g) Multiple scars on the scalp and face
h) Tenderness on the lower back
i) Scar on the left ring finger
48. The Appellant proposed an award of ksh 800,000/= and relied on two cases: Samson -vs-Abdifatah (supra), an award of kshs 800,000/= was reduced to kshs 550,000/= by the Appellate court and the injuries sustained were; head bruise on the nasal bridge, soft tissue injuries on the head, soft tissue injuries on the face, fracture nasal bridge, soft tissue injuries behind the right ear, soft tissue injuries on the right shoulder, deep cut wound on the left wrist joint, soft tissue injuries on the left leg, soft tissue injuries on the left knee joint. The Appellant submitted that these injuries were less serious yet there was a fracture of the nasal bridge.
49. In Elizaphen -vs- Fredrick (supra), an award of kshs 850,000/= was reduced to kshs 500,000/= by the Appellate court and the injuries sustained were; head injury with loss of consciousness, fracture of the right zygoma (facial bone), multiple facial lacerations, blunt injury to the shoulders, blunt injury and bruises to both lower limbs. The Appellant also submitted that these injuries were less severe to his own yet there was a fracture of a facial bone.
50. The Respondents did not make any proposals on quantum.
51. In my view, the cases relied on by the Appellant are not comparable as the plaintiffs therein sustained fractures. One of the principles in award of damages is that comparable injuries should attract comparable awards. The injuries pleaded by the Appellant are in the category of ‘multiple soft tissue injuries.’
52. In Justine Nyamweya Ochoki & Anor -vs- Jumaa Karisa Kipingwa [2020] eKLR, the plaintiff suffered blunt injuries to the chest, left wrist and lower lip. The trial court awarded Kshs 300,000/=, but it was reduced to Kshs 150,000/= on appeal.
53. In Ndungu Dennis -vs- Ann Wangari Ndirangu & Anor [2018] eKLR, the plaintiff sustained soft tissue injuries to the lower right leg and to the back. The trial court awarded Kshs 300,000/= but it was reduced to Kshs 150,000/= on appeal.
54. In Michael Odiwuor Obonyo -vs- Clarice Odera Ogunde [2021] eKLR the plaintiff sustained blunt injuries to the head, neck, chest, upper limbs, lower limbs, ribs and back. The trial court awarded Kshs 500,000/= but it was reduced to Kshs 200,000/= on appeal.
55. I am aware that there are no two cases that are completely similar but having looked at awards in cases of soft tissue injuries having taken inflation into account the sum of Kshsl;p 200,000/= would have been reasonable compensation.
56. In the circumstances, I find the appeal without merit and dismiss it with costs.
Dated, signed and delivered via CTS this 8th April 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant