KEVIN SUNDAY OLOO VS MAXWELL VIDAMBU MASAVA KEVIN SUNDAY OLOO VS MAXWELL VIDAMBU MASAVA

Being an appeal from part of the judgement of Honourable Adjudicator/ Magistrate Mr. A.O Casmir delivered on 30^th November 2023 in SCC/E4862/2023.
INTRODUCTION.

The Appellant has moved to this Court aggrieved by the decision of the learned Honourable Magistrate apportioning liability it 50:50 as against the parties.
The claim was for the sum of Ksh. 92.050.
The Appellant called PW1 PC BOBY OKARI of Kilimani Police Station in support of his case.
Although the officer was not the investigating officer, he produced a Police abstract showing the driver of motor vehicle KDJ 397Q caused an accident along Ngong road by ramming into the rear of motor vehicle KBB 845H.
The said accident occurred at 0450hrs near Coptic Hospital.
The Appellant also called a motor vehicle assessor as PW2 who presented the assessment report as proof of damage. The witness confirmed in his evidence that a total figure of Ksh. 94,000 was paid by the Appellant as costs for the repairs.
The Appellant too gave evidence and narrated that he had a tyre burst which caused him to stop and he parked off the road to change the tyre.
It was while he was doing so that the offending motorist hit him from behind. He further testified that the driver was drunk and was in high speed so he could not be able to brake instantly.
The respondent did not call any evidence in rebuttal.

ANALYSIS.

The duty of this Court as a first appellate Court is to analyze and reevaluate the evidence tendered in the Lower Court in order to draw its own conclusion as to the sufficiency of evidence in support of the case fully cognizant of the fact that the Court neither heard nor saw the witnesses.
The Appellants evidence before the Adjudicator was unchallenged and thus the Lower Court was bound to act on it.
The Appellant contends before this Court that there was no basis for the apportioning of liability by the learned Honourable Magistrate at 50:50.
I have perused the submissions of the Appellant as well as the respondents counsel and take into account each of the parties’ submissions on the issue of liability.
I have also looked at the judgement to ascertain the basis upon which the Lowe Court apportioned liability at 50:50.
The Adjudicator in my view paid very little attention to the evidence before him in reaching that finding.
Whereas it is true that the burden of proof lay with the plaintiff to establish his case, it should then follow that where the plaintiff establishes his case to the required standard, he should be given the full benefit of that evidence where the defendant in the suit chooses not to adduce any evidence. The trial Court should resist the temptation of raising the bar too high in the absence of any evidence to counter the plaintiff’s case.
However, I agree with the respondent’s submission that even when the defendant has not denied claim by failing to file a defense, or fail to appear at the hearing the burden would still be on the claimant to prove his case. See Hon. Daniel Toroitich Arap Moi Vs Mwangi Stephen Muriithi (2014) eKLR .
The Appellant in this case was able to lead evidence that left no doubt that the respondent was at fault. The plaintiff was emphatic that the respondent was driving at a high speed while under the influence of alcohol. The evidence of the appellant left no doubt that the fact of driving at an exceedingly high speed under the influence of alcohol was prima facie evidence of negligence.
The evidence of the appellant remained unchallenged by the respondent thus the learned Adjudicator was under duty to act on it and render a finding on liability that would be in line with the evidence.
From my independent analysis of the evidence, I have no hesitation in concluding that the respondent was wholly to blame for the accident and that the Adjudicator’s finding on liability was not supported by evidence.
The finding on liability is a finding that should be based solely on evidence. It should not be a hypothetical analysis. The Adjudicator should have pointed out for any one to see why the Appellant shoulder 50% liability.
This Court is empowered to disturb a Lower Courts findings on matters of fact where the Court is satisfied that the finding is not borne out of evidence or is as a result of a misapprehension of the evidence. See Ephantus Mwangi Vs Duncan Mwangi Wambugu (1984) eKLR .
The Adjudicator here had only the Appellants witnesses to hear and observe their demeanor. If for whatever reason the Court disbelieved their narration of events and the factual presentation by any one of them, the Adjudicator should have put that on record.
Having failed to do so, I have no reason whatsoever not to interfere with the Adjudicator’s finding on liability and hereby vary same by finding and holding that the respondent was solely to blame for the occurrence of the accident.
The evidence on record militates against any other finding.
The respondent did not present any other account concerning the circumstances leading to the occurrence of the accident. The adjudicator appears not to have taken that into account thus prejudicing the appellant who had tendered sufficient evidence to prove his case. See E.A.T.C&Another vs Festo AHANZA ANGOSI (2006) eKLR

CONCLUSION.

Following the analysis of the evidence on record and having considered the submissions by both counsel this Court finds that the appeal has merit and the same is hereby allowed with costs to the Appellant.
The respondent shall bear 100% liability for the accident.
It is so ordered.