1. This is an appeal arises from the Judgment of the trial court in the Nairobi Small Claims Court Civil Case No. E261 of 2021 where the Appellant herein had sued the Respondent/Cross Appellant seeking damages for injuries suffered in a road traffic accident which occurred on 13th February 2019 along Moi Avenue, Nairobi involving motor vehicle registration No. KCK 805J Toyota Hiace.
2. The trial court by its judgment dated 10th May 2021, apportioned liability at 50:50 and issued the following award in favour of the Appellant.
a) General damages of Kshs. 700,000/-
b) Special damages of Kshs. 200,000/-
Total Kshs. 900,000/-
Less 50% liability; Kshs. 450,000
c) Costs
d) Interest at court rates from the date of delivery of the Judgment.
The Appeal
3. Dissatisfied with the decision of the trial court, the Appellant vide his memorandum of appeal dated 24th May 2021 appealed to this Court, mainly on the following grounds; -
i. That the trial magistrate erred in law and in fact by relying on the evidence and opinion of a police officer who was not present at the scene while ignoring the Appellant’s account of how the accident happened.
ii. That the learned magistrate erred in law and in fact by failing to find the Respondents 100% liable for the accident.
iii. That the learned magistrate erred in law and in fact by failing to provide in the judgment, the reasoning of how the court’s finding and apportionment of liability was arrived at.
The Cross-Appeal
4. The Defendants at the trial court, the Respondents herein also filed a cross-appeal against the Judgment of the trial court. In the memorandum of cross-appeal, the Respondents raised the following, as the grounds of cross-appeal; -
i. That the trial magistrate erred in law and in fact in holding the Respondents 50% liable without an iota of evidence being adduced by the Appellant to enable the court reach a conclusion on liability apportionment in the manner that it did.
ii. That the learned magistrate erred in law and in fact by failing to find the Appellant 100% liable for the accident despite the overwhelming evidence tendered by the police officer who produced the occurrence book.
iii. That the learned magistrate misdirected herself and applied the wrong principles of the law by awarding the Appellant Kshs. 700,000/- despite the fact that the Appellant had not tendered the initial treatment notes outlining the nature of the injuries as at the date of the accident.
iv. That the learned magistrate misdirected herself and applied the wrong principles of the law by awarding the Appellant Kshs. 200,000/- is special damages instead of Kshs. 77,102/- which was proved in evidence.
Submissions
5. The court gave directions that the appeal be canvassed by way of written submissions. The Appellants filed their submissions dated 29th April 2024 while the Respondents/Cross Appellants failed to file their submissions. The Court will in the circumstances proceed only on the basis of the material on record.
6. The Appellant submitted that in arriving at its decision on liability, the trial court erred, both in fact and in law, by relying on the opinion of the police officer who was not at the scene of the accident. It was further the Appellant’s submissions that the trial court committed an error of law and fact by failing to provide in the judgment, its reasoning on liability.
7. It was the Appellant’s position that his testimony before the trial court on how the accident happened was corroborated by that of PW3, Police Constable Kawira Susan, who testified and produced the Police Abstract. According to the Appellant, he had proved his case to the standards required under section 107 (1) of the Evidence Act.
8. According to the Appellant, the evidence in his favour was more credible than that adduced by the Respondents. That the Respondents only relied on the evidence of one witness, DW1, Police Constable Peter Ndirangu, who merely produced a copy of the occurrence book (OB), but, unlike the appellant, was not present at the scene of the accident and could not therefore competently testify on which one of the two parties is to blame for the accident.
9. It was further the Appellant’s submissions that DW1, the police officer, was not the investigating officer and did not have the investigation report, sketch maps and/or photographs of the scene of the accident and that his testimony was less credible as it was only limited to the contents of an entry in the occurrence book. The Appellant maintained that the testimony of the DW1 is circumstantial and not direct since it merely points at the occurrence of the accident, but not on who is to blame for the accident, and to what degree.
10. The Appellant asserted that to the extent that the Respondents did not call any eye witness to the accident, such as the driver of the subject motor vehicle to rebut the testimony by appellant, then the trial court erred in finding the Appellant 50% to blame for the accident.
11. Finally, it was the appellant’s case that the trial court committed an error of law and fact in failing to provide a reasoning in the judgment, how liability was arrived at. That the court simply apportioned liability in the ratio of 50:50 without giving any reasons as to what informed that conclusion.
12. As recorded elsewhere in this judgment, the Respondents did not file any submissions, either in answer to the appeal, or in support of their cross-appeal.
Analysis and determination
13. This being a first appeal, the duty of this court is to reconsider evidence, re-evaluate the same and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witness testify. See the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
14. I have perused the record of appeal and the Appellant’s submissions. I note that the Appellant’s evidence was that on the material day he was lawfully crossing Moi Avenue, at around the Moi-Avenue-Kenyatta Avenue Junction when the 2nd Respondent’s driver, the 1st Respondent herein, carelessly and/or negligently drove, managed and/or controlled the Motor Vehicle registration Number KCK 805J Toyota Hiace (Matatu) causing it to step on the Plaintiff’s foot, thereby causing grave injuries to the Plaintiff.
15. On their part, the Respondents filed their defence on 18th November 2019 generally denying liability. The driver of the motor vehicle, one Charles Joshua Ombui recorded an undated statement acknowledging that the accident indeed happened but blamed the appellant for the same. In his statement, he stated that he was driving the subject motor vehicle, ferrying fare paying passengers, when the Appellant, being a pedestrian, suddenly emerged in front his vehicle and in the process, got injured on his lower right leg. I however note that the driver was not called as a witness and his statement though put as part of the record of appeal, was never adopted by the trial court as evidence.
16. From the above, it is clear that the issue to be resolved in this Appeal is whether, based on the evidence presented before the trial court, the Appellant proved his case to the required standards.
17. It is trite that pursuant to Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya the legal burden of proof on a claimant. On the other hand, the evidential burden of proof is imposed under section 109 and 112 of the same Act on both parties. See Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where the Court of Appeal stated that: -
“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”
18. From the proceedings, I note that the Appellant testified that he was crossing the road when the driver of the subject motor vehicle, the 1st Respondent herein, carelessly and/or negligently drove the vehicle, causing it to step on his foot, thereby causing grave injuries to the Plaintiff. He blamed the accident on the negligence of the 1st Respondent.
19. Further, PW3, No. 9787995 PC Kawira Susan, also gave evidence in court to the effect that the accident was reported at the Central Police Station by the Plaintiff and police abstract dated 14th November 2017 issued in respect thereof. That as per the entry in the occurrence book, the matter was still under investigations and no blame had been assigned to either of the parties.
20. The Respondents on the other hand relied solely on the evidence of DW1, No. 92750 PC Peter Ndirangu, who was then attached to the Central Police Station, Nairobi. The witness produced in evidence a police abstract dated 14.02.2017. His testimony was that according to the occurrence book (OB) entry in relation to the accident, the Plaintiff was to blame.
21. It is evident from the proceedings that the driver of the subject motor vehicle at the time of the accident, the 1st Respondent herein, was not called to give evidence despite having recorded the statement. The witness statement was not adopted in court and cannot therefore be elevated to the level of evidence.
22. To my mind, the failure by the Respondents to call the 1st Respondent, being the driver of the subject motor vehicle to testify in support of their case left the evidence by DW1, No. 92750 PC Peter Ndirangu uncorroborated and therefore of less probative value as compared to the evidence tendered in favour of the Appellant.
23. The principle governing apportionment of liability in tort is that it is a discretionary exercise and that the appellate court should only interfere when it is clearly wrong and based on no evidence or on the application of wrong principle. This was the holding in Khambi and Another vs. Mahithi and Another [1968] EA 70, where the court stated that: -
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
24. The question for determination in this appeal is whether based on the evidence before the trial court, the court was justified in apportioning liability between the parties in the manner that it did.
25. In my view considering the fact that the Respondents failed to call the driver the subject motor vehicle, who was the eye witness to the accident, to testify at trial left the evidence of the Appellant more believable. This is particularly so taking into account the evidence presented by the Appellant’s witness, PW3 countered that of DW1 regarding on who was to blame for the accident.
26. In view of the above, I find that this is a clear case where this court should interfere with the finding of trial court on the apportionment of liability. I find that the discretion of the trial court in apportioning liability was exercised in error and did not take into account the evidence on record.
27. Based on the evidence on record, I find that the Respondents carried more blame for the accident. However, this does not mean that the plaintiff was entirely not to blame.
28. It is clear that the Appellant was crossing the road when the 1st Respondent was driving the subject motor vehicle along the road. It is an established principle that pedestrians too owe a duty of care to other road users, including motorists as was held in the case of Muindu v Kinyanjui & another (Civil Appeal E032 of 2022) [2024] KEHC 3157 (KLR) where the court stated that; -
“66. Having said that, it is also true that a pedestrian has a duty to take care of his own safety while crossing or walking on a road. In the Patrick Mutie Kamau & Another –vs- Judy Wambui Ndurumo [1997] eKLR the Court of Appeal held that pedestrians too owe a duty of care to other road users to move with due care and follow the Highway Code.
67.Both the appellant and the respondent have given evidence that demonstrates that the other person was not as careful a road user as is required. All were moving towards the same direction. The appellant’s friend ran off and avoided the accident. The appellant may have jumped into the road in the attempt to run after his friends, and the respondent in that situation swerved dangerously and in the process hit the appellant 70% liability and the appellant should bear 30%.”
29. The fact that the Appellant failed to stop and give way to the subject motor vehicle may have also contributed to the accident to some degree. Refer also to the case of Patrick Mutie Kamau -vs -Judy Wambui Ndurumo (supra). In the circumstances I apportion liability at 80%:20% in favour of the Appellant. For avoidance of doubt, I find the Appellant 20% liable for the accident.
30. The Respondents having failed to comply with the court’s directions in the filing of submissions as indicated above, the cross appeal is hereby dismissed.
31. For the reasons I have set out above, I allow the appeal and set aside the trial court finding on liability and substitute the same with an order of this court apportioning liability in the ratio of 80%:20% in favour of the Appellants.
32. The other aspects of the judgment were not challenged in the main appeal. I therefore maintain the trial court’s finding on damages.
33. In the final analysis, taking into account the issue of liability, damages payable will be as follows; -
General damages of Kshs. 700,000/-
Special damages of Kshs. 200,000/-
Total Kshs. 900,000/-
Less 20% liability; Kshs. (180,000)
Damages payable: Kshs. 720,000/-
34. The Appellant shall have the costs of this Appeal.
35. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGSUT 2024
ADO MOSES
JUDGE
Moses – Court Assistant
for the Appellant
for the Respondent
2. The trial court by its judgment dated 10th May 2021, apportioned liability at 50:50 and issued the following award in favour of the Appellant.
a) General damages of Kshs. 700,000/-
b) Special damages of Kshs. 200,000/-
Total Kshs. 900,000/-
Less 50% liability; Kshs. 450,000
c) Costs
d) Interest at court rates from the date of delivery of the Judgment.
The Appeal
3. Dissatisfied with the decision of the trial court, the Appellant vide his memorandum of appeal dated 24th May 2021 appealed to this Court, mainly on the following grounds; -
i. That the trial magistrate erred in law and in fact by relying on the evidence and opinion of a police officer who was not present at the scene while ignoring the Appellant’s account of how the accident happened.
ii. That the learned magistrate erred in law and in fact by failing to find the Respondents 100% liable for the accident.
iii. That the learned magistrate erred in law and in fact by failing to provide in the judgment, the reasoning of how the court’s finding and apportionment of liability was arrived at.
The Cross-Appeal
4. The Defendants at the trial court, the Respondents herein also filed a cross-appeal against the Judgment of the trial court. In the memorandum of cross-appeal, the Respondents raised the following, as the grounds of cross-appeal; -
i. That the trial magistrate erred in law and in fact in holding the Respondents 50% liable without an iota of evidence being adduced by the Appellant to enable the court reach a conclusion on liability apportionment in the manner that it did.
ii. That the learned magistrate erred in law and in fact by failing to find the Appellant 100% liable for the accident despite the overwhelming evidence tendered by the police officer who produced the occurrence book.
iii. That the learned magistrate misdirected herself and applied the wrong principles of the law by awarding the Appellant Kshs. 700,000/- despite the fact that the Appellant had not tendered the initial treatment notes outlining the nature of the injuries as at the date of the accident.
iv. That the learned magistrate misdirected herself and applied the wrong principles of the law by awarding the Appellant Kshs. 200,000/- is special damages instead of Kshs. 77,102/- which was proved in evidence.
Submissions
5. The court gave directions that the appeal be canvassed by way of written submissions. The Appellants filed their submissions dated 29th April 2024 while the Respondents/Cross Appellants failed to file their submissions. The Court will in the circumstances proceed only on the basis of the material on record.
6. The Appellant submitted that in arriving at its decision on liability, the trial court erred, both in fact and in law, by relying on the opinion of the police officer who was not at the scene of the accident. It was further the Appellant’s submissions that the trial court committed an error of law and fact by failing to provide in the judgment, its reasoning on liability.
7. It was the Appellant’s position that his testimony before the trial court on how the accident happened was corroborated by that of PW3, Police Constable Kawira Susan, who testified and produced the Police Abstract. According to the Appellant, he had proved his case to the standards required under section 107 (1) of the Evidence Act.
8. According to the Appellant, the evidence in his favour was more credible than that adduced by the Respondents. That the Respondents only relied on the evidence of one witness, DW1, Police Constable Peter Ndirangu, who merely produced a copy of the occurrence book (OB), but, unlike the appellant, was not present at the scene of the accident and could not therefore competently testify on which one of the two parties is to blame for the accident.
9. It was further the Appellant’s submissions that DW1, the police officer, was not the investigating officer and did not have the investigation report, sketch maps and/or photographs of the scene of the accident and that his testimony was less credible as it was only limited to the contents of an entry in the occurrence book. The Appellant maintained that the testimony of the DW1 is circumstantial and not direct since it merely points at the occurrence of the accident, but not on who is to blame for the accident, and to what degree.
10. The Appellant asserted that to the extent that the Respondents did not call any eye witness to the accident, such as the driver of the subject motor vehicle to rebut the testimony by appellant, then the trial court erred in finding the Appellant 50% to blame for the accident.
11. Finally, it was the appellant’s case that the trial court committed an error of law and fact in failing to provide a reasoning in the judgment, how liability was arrived at. That the court simply apportioned liability in the ratio of 50:50 without giving any reasons as to what informed that conclusion.
12. As recorded elsewhere in this judgment, the Respondents did not file any submissions, either in answer to the appeal, or in support of their cross-appeal.
Analysis and determination
13. This being a first appeal, the duty of this court is to reconsider evidence, re-evaluate the same and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witness testify. See the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
14. I have perused the record of appeal and the Appellant’s submissions. I note that the Appellant’s evidence was that on the material day he was lawfully crossing Moi Avenue, at around the Moi-Avenue-Kenyatta Avenue Junction when the 2nd Respondent’s driver, the 1st Respondent herein, carelessly and/or negligently drove, managed and/or controlled the Motor Vehicle registration Number KCK 805J Toyota Hiace (Matatu) causing it to step on the Plaintiff’s foot, thereby causing grave injuries to the Plaintiff.
15. On their part, the Respondents filed their defence on 18th November 2019 generally denying liability. The driver of the motor vehicle, one Charles Joshua Ombui recorded an undated statement acknowledging that the accident indeed happened but blamed the appellant for the same. In his statement, he stated that he was driving the subject motor vehicle, ferrying fare paying passengers, when the Appellant, being a pedestrian, suddenly emerged in front his vehicle and in the process, got injured on his lower right leg. I however note that the driver was not called as a witness and his statement though put as part of the record of appeal, was never adopted by the trial court as evidence.
16. From the above, it is clear that the issue to be resolved in this Appeal is whether, based on the evidence presented before the trial court, the Appellant proved his case to the required standards.
17. It is trite that pursuant to Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya the legal burden of proof on a claimant. On the other hand, the evidential burden of proof is imposed under section 109 and 112 of the same Act on both parties. See Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where the Court of Appeal stated that: -
“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”
18. From the proceedings, I note that the Appellant testified that he was crossing the road when the driver of the subject motor vehicle, the 1st Respondent herein, carelessly and/or negligently drove the vehicle, causing it to step on his foot, thereby causing grave injuries to the Plaintiff. He blamed the accident on the negligence of the 1st Respondent.
19. Further, PW3, No. 9787995 PC Kawira Susan, also gave evidence in court to the effect that the accident was reported at the Central Police Station by the Plaintiff and police abstract dated 14th November 2017 issued in respect thereof. That as per the entry in the occurrence book, the matter was still under investigations and no blame had been assigned to either of the parties.
20. The Respondents on the other hand relied solely on the evidence of DW1, No. 92750 PC Peter Ndirangu, who was then attached to the Central Police Station, Nairobi. The witness produced in evidence a police abstract dated 14.02.2017. His testimony was that according to the occurrence book (OB) entry in relation to the accident, the Plaintiff was to blame.
21. It is evident from the proceedings that the driver of the subject motor vehicle at the time of the accident, the 1st Respondent herein, was not called to give evidence despite having recorded the statement. The witness statement was not adopted in court and cannot therefore be elevated to the level of evidence.
22. To my mind, the failure by the Respondents to call the 1st Respondent, being the driver of the subject motor vehicle to testify in support of their case left the evidence by DW1, No. 92750 PC Peter Ndirangu uncorroborated and therefore of less probative value as compared to the evidence tendered in favour of the Appellant.
23. The principle governing apportionment of liability in tort is that it is a discretionary exercise and that the appellate court should only interfere when it is clearly wrong and based on no evidence or on the application of wrong principle. This was the holding in Khambi and Another vs. Mahithi and Another [1968] EA 70, where the court stated that: -
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
24. The question for determination in this appeal is whether based on the evidence before the trial court, the court was justified in apportioning liability between the parties in the manner that it did.
25. In my view considering the fact that the Respondents failed to call the driver the subject motor vehicle, who was the eye witness to the accident, to testify at trial left the evidence of the Appellant more believable. This is particularly so taking into account the evidence presented by the Appellant’s witness, PW3 countered that of DW1 regarding on who was to blame for the accident.
26. In view of the above, I find that this is a clear case where this court should interfere with the finding of trial court on the apportionment of liability. I find that the discretion of the trial court in apportioning liability was exercised in error and did not take into account the evidence on record.
27. Based on the evidence on record, I find that the Respondents carried more blame for the accident. However, this does not mean that the plaintiff was entirely not to blame.
28. It is clear that the Appellant was crossing the road when the 1st Respondent was driving the subject motor vehicle along the road. It is an established principle that pedestrians too owe a duty of care to other road users, including motorists as was held in the case of Muindu v Kinyanjui & another (Civil Appeal E032 of 2022) [2024] KEHC 3157 (KLR) where the court stated that; -
“66. Having said that, it is also true that a pedestrian has a duty to take care of his own safety while crossing or walking on a road. In the Patrick Mutie Kamau & Another –vs- Judy Wambui Ndurumo [1997] eKLR the Court of Appeal held that pedestrians too owe a duty of care to other road users to move with due care and follow the Highway Code.
67.Both the appellant and the respondent have given evidence that demonstrates that the other person was not as careful a road user as is required. All were moving towards the same direction. The appellant’s friend ran off and avoided the accident. The appellant may have jumped into the road in the attempt to run after his friends, and the respondent in that situation swerved dangerously and in the process hit the appellant 70% liability and the appellant should bear 30%.”
29. The fact that the Appellant failed to stop and give way to the subject motor vehicle may have also contributed to the accident to some degree. Refer also to the case of Patrick Mutie Kamau -vs -Judy Wambui Ndurumo (supra). In the circumstances I apportion liability at 80%:20% in favour of the Appellant. For avoidance of doubt, I find the Appellant 20% liable for the accident.
30. The Respondents having failed to comply with the court’s directions in the filing of submissions as indicated above, the cross appeal is hereby dismissed.
31. For the reasons I have set out above, I allow the appeal and set aside the trial court finding on liability and substitute the same with an order of this court apportioning liability in the ratio of 80%:20% in favour of the Appellants.
32. The other aspects of the judgment were not challenged in the main appeal. I therefore maintain the trial court’s finding on damages.
33. In the final analysis, taking into account the issue of liability, damages payable will be as follows; -
General damages of Kshs. 700,000/-
Special damages of Kshs. 200,000/-
Total Kshs. 900,000/-
Less 20% liability; Kshs. (180,000)
Damages payable: Kshs. 720,000/-
34. The Appellant shall have the costs of this Appeal.
35. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGSUT 2024
ADO MOSES
JUDGE
Moses – Court Assistant
for the Appellant
for the Respondent