'(Being an Appeal from the decree emanating from the judgment of Hon. L. T. Lewa, Principal Magistrate delivered on 19th September 2024 at Kwale Magistrates Court in Case No. E032 of 2024)
1. The appellant filed this appeal through a memorandum dated 7th October 2024. The record of appeal is dated 20/9/2024. I don not know how possible this could be but luckily there is no issue raised about it. There is also a supplementary record of appeal dated 22nd May 2025 filed by the 2nd respondent. The appeal is on liability only.
2. The appeal arises from the judgment of the trial court dated 19th September 2024. The suit by the appellant against the respondents through a plaint dated 25th March 2021 was claiming compensation in general and special damages for injuries sustained by the appellant in a road traffic accident on 8th October 2020 along the Likoni-Ukunda road. The accident involved two matatu motor vehicles, registration numbers KBB 559L and KBD 239N which were moving in opposite directions. The appellant was a fare paying passenger in motor vehicle registration number KBB 559L which collided with the other motor vehicle registration number KBD 239N as a result of which she sustained injuries. In her suit, she pleaded negligence against drivers of both vehicles. The respondents were the respective owners of the vehicles and would therefore be vicariously liable for the negligence of the drivers.
3. The case was defended by the respondents through their respective statements of defence. Each of them denied liability against himself as pleaded by the appellant and put her to strict proof.
4. In his statement of defence dated 29th July 2021 the 1st respondent blamed the driver of the 2nd respondent’s motor vehicle for the accident. Similarly, in his statement of defence dated 30th August 2022 the 2nd respondent blamed the driver of the 1st respondent’s motor vehicle and also pleaded contributory negligence against the appellant as a passenger in the 1st appellant’s motor vehicle.
5. At the hearing the appellant testified as PW 1 and called two other witnesses, PW 2, Dr. D. Kiema and PW 3, Rachael Haluki Emmanuel, an eye witness who was a passenger in the same vehicle as the appellant.
6. The 1st respondent closed his case without calling evidence at the hearing.
7. The 2nd respondent called two witnesses, DW 1, Nasa Hamisi Mohammed, the driver of motor vehicle registration number KBD 239N and DW 2, PC Kelvin Muriungi of Diani police station.
8. The appellant Linah Hagari Mwarabu, testified three times. Her first two testimonies were set aside on application of each of the respondents who came on record late, one after the other respectively.
9. In her testimony on the third occasion, she testified as PW 1 on 3rd May 2023 and adopted her witness statement dated 20th April 2021 as her evidence in chief and also produced the various documents in her list as exhibits. The appellant’s evidence on how the accident occurred was that the matatu registration number KBB 559L she had boarded collided with another registration number KBD 239N. In her witness statement, she said that she blamed both drivers and owners of the vehicles for the accident as particularized in the plaint. In cross-examination she said that she was seated on the seat second to the last and she could see clearly what was happening. She said further that motor vehicle KBB 559L was unroadworthy because along the way, it got spoilt the first time before they proceeded on and after a short while it was involved in the accident. In re-examination she said that she could not really know if a motor vehicle was unroadworthy and that if indeed it was police would have stopped it on the way.
10. Rachael Haluku Emmanuel, the appellant’s witness testified as PW 3. She also adopted her witness statement as evidence in chief. She said she lives with the appellant as her househelp. They were together in the same vehicle at the time of the accident. Her evidence on how the accident occurred was that the motor vehicle she was travelling in registration number KBB 559L collided with another registration number KBD 239N. She blamed both drivers for causing the accident. In cross-examination, PW 3 said that at a certain point the motor vehicle they were travelling in stalled and the driver was forced to have it repaired before they proceeded with their journey.
11. For the 2nd respondent, DW 1, Nasa Hamisi Mohammed testified on 15/5/2024. He adopted his witness statement as his evidence in chief. He testified that on the material day, he was driving motor vehicle registration number KBD 239N going to Likoni from Ukunda. When he got to Mabriver area, there was a collision involving his vehicle and motor vehicle registration number KBB 559L. He blamed the driver of the other vehicle for the accident because for overtaking at a black spot where overtaking is prohibited and for driving very fast. He said the other vehicle went and hit his vehicle while it was off the road. In cross-examination, DW 1 said that he stopped at to pick a passenger at a known bus stage though unmarked. When he was done he decided to get back onto the road but on doing so, he observed that the other oncoming motorist was overtaking. He decided to move back off road to allow him pass. However, instead of successfully passing, the vehicle collided with his. He said the other motorist was driving fast and at a high speed.
12. DW 2, PC Kelvin Muriungi of Diani police station was not the investigating officer and neither did he visit the scene of the accident.
13. After trial the learned trial magistrate found on the issue of liability that the same had been proved against the 1st respondent but not against the 2nd respondent. She thus dismissed the case against the 2nd respondent.
14. The appellant was dissatisfied with the decision to dismiss the case against the 2nd respondent and now appeals to this court on a single ground that the learned trial magistrate erred in law and in fact by dismissing the appellant’s case against the 2nd respondent with costs.
15. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court delivered on 19th September 2024 with costs and substitute it with an order apportioning liability jointly and severally against the 1st and 2nd respondents and the appellant to be awarded costs of the appeal.
16. The appeal was canvassed through written submissions filed by learned counsels for the appellant and the 2nd respondent. The 1st respondent did not participate in the appeal.
17. I have considered the proceedings before the trial court, the judgment of the court, the grounds of appeal and the submissions by learned counsels for the parties in this appeal.
18. 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. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
19. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with findings of fact by the trial court as was stated in the case of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
20. The principles under which an appellate court can justifiably interfere with a finding of fact by the trial court as set out in the cases of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR) and Simon Muchemi Atako & another v Gordon Osore [2013] KECA 128 (KLR) are:
i. The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
ii. The trial court misapprehended the evidence in some material respect.
iii. The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
iv. The trial Magistrate failed to take account of a particular circumstance or probability material to an estimate of the evidence
v. The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally.
21. Learned counsel for the appellant has submitted, citing the cases of Charles Ochieng’ Anyango v Fredrick Mwiti Mwenda [2021] KEHC 9263 (KLR) and Sancha v Oeri & another [2023] KEHC 4145 (KLR), that no contributory negligence in the manner of driving and or control of a vehicle ought to be attached to a passenger. In the circumstances of this case, that submission is correct and I accept it. Save that I have not seen anywhere in the judgment the learned trial magistrate attributed liability against the appellant.
22. Learned counsel for the 2nd respondent submitted that the only issue for determination was whether the learned trial magistrate applied the proper principles in dismissing the appellant’s case against the 2nd respondent.
23. It is also correct as submitted by learned counsel for the appellant that a conviction for a traffic offence does not mean that the accused person is automatically liable in negligence just as an acquittal does not automatically mean that the accused person is not liable. The aspect of contributory negligence has to be considered in view of the fact that the standard of proof in a criminal trial is higher than for a civil case. Learned counsel correctly cited the decision of the Court of Appeal in the case of David Kinyanjui & 2 Others vs. Meshack Omari Monyoro Civil Appeal No. 125 of 1993, held that a conviction does not close the door to a defence on liability, as the issue of contributory negligence is open to the defendant
24. The learned trial magistrate found that the evidence of DW 1, the driver of the 2nd respondent’s vehicle on how the accident occurred was supported by the appellant’s own evidence and that of her witness that the accident was caused by the 1st respondent’s vehicle which left its lane and hit the 2nd respondent’s vehicle which was off the road.
25. I have considered the evidence of DW 1 before the trial court. He testified that he had stopped his vehicle at a designated bus stop to drop a passenger and was just starting off when he saw the 1st respondent’s vehicle overtaking another at high speed. He stopped his vehicle and pulled off the road but the 1st respondent’s vehicle went to his side and hit his vehicle, thereby causing the accident. There was no other evidence to controvert what DW 1 said. The learned trial magistrate was therefore correct to rely upon it to find that the 1st respondent’s driver was negligent in the circumstances.
26. I note that the learned trial magistrate went ahead to refer to the police abstract as having corroborated the evidence of DW 1 but that finding was not correct. Given that DW 2 was not the investigating officer and he had not even visited the scene, the best he did was to produce the police abstract as evidence that indeed the accident had been reported at Diani police station and investigations conducted. However, the findings of the investigations as contained in the file or the police abstract were hearsay evidence that could not be relied upon.
27. However, that error by the learned trial magistrate was not fatal because, already there was evidence from eye witnesses being the appellant, her witness and DW 1.
28. It would appear that learned counsel in his submissions herein relies on evidence adduced by the parties earlier before the 2nd respondent came on board in the proceedings before the trial court. However, those earlier proceedings were set aside and the 2nd respondent granted leave to file defence and the hearing started afresh. For instance, I do not see in the proceedings after the 2nd respondent had come on board the 2nd respondent himself testifying at all yet the appellant submits that:
“the 2nd respondent confirmed, that his driver neither holds a valid driving license nor a PSV badge both of which are mandatory, statutory requirements for all matatu drivers. It was also confirmed that the 2nd respondent’s matatu was not in a road worthy condition as no motor vehicle inspection report was produced to dispel this allegation. Immediately before the accident, the 2nd respondent’s driver admitted that he had veered off road in an unsuccessful attempt at picking a potential passenger from a place that was not a designated bus stop/matatu stage.”
29. From the foregoing submission, it would appear that the appellant misapprehended the evidence tendered by the driver of the 2nd respondent’s vehicle, DW 1. The driver never said that he did not hold a valid driving licence or that he did not have a badge. In fact, he was emphatic that he had both of them save that he had not carried them to court for production that day. I any case, even if he did not hold them, there was no evidence that his manner of driving demonstrated that he was an incompetent driver or that he contributed to the accident. The appellant and her witness only stated that they blamed both drivers for the accident without evidence of negligence against DW 1.
30. Again, DW 1 did not testify that he had veered off road in an unsuccessful attempt at picking a potential passenger from a place that was not a designated bus stop. That was not what he said at all.
31. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
32. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
33. The 1st respondent alleged negligence against the 2nd respondent but there was no evidence to support that allegation. The 2nd respondent presented evidence by way of witnesses and the same was supported by the appellant and her witness on how the accident occurred. All these were eye-witnesses to the accident. None of them lay blame upon the driver of the 2nd respondent. The allegation by the appellant that DW 1 was speeding was not substantiated and it was dispelled by DW 1 who said he was just leaving the stage where he had stopped when the other vehicle went towards his and in spite of pulling his vehicle off the road, the other vehicle collided into it. Under those circumstances, he could not have been speeding. No other evidence was tendered to discount what he said. The trial magistrate was therefore correct to find that the case against the 2nd respondent had not been proved on a balance of probability.
34. There is no dispute that there was a collision between the 2nd respondents’ vehicle and that of the 1st respondent. The accident indeed happened. The 2nd respondent came forward and gave his version of what happened. There is no other evidence to challenge it.
35. Therefore, I do not find the submission by learned counsel for the appellant that the learned trial magistrate erred in dismissing the case against the 2nd respondent to have merit. There was no evidence at all that the 2nd respondent’s driver was to blame for the accident.
36. Consequently, the decision of the trial magistrate dismissing the appellant’s case against the 2nd respondent is affirmed and the appeal is dismissed.
37. The appellant shall bear the costs of the appeal.
Dated, signed and delivered on the Virtual Platform, Teams this 1st day of September 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Masore for the appellant.
N/A for the 1st respondent.
N/A for the 2nd respondent.
Ummu Court Assistant.
'
1. The appellant filed this appeal through a memorandum dated 7th October 2024. The record of appeal is dated 20/9/2024. I don not know how possible this could be but luckily there is no issue raised about it. There is also a supplementary record of appeal dated 22nd May 2025 filed by the 2nd respondent. The appeal is on liability only.
2. The appeal arises from the judgment of the trial court dated 19th September 2024. The suit by the appellant against the respondents through a plaint dated 25th March 2021 was claiming compensation in general and special damages for injuries sustained by the appellant in a road traffic accident on 8th October 2020 along the Likoni-Ukunda road. The accident involved two matatu motor vehicles, registration numbers KBB 559L and KBD 239N which were moving in opposite directions. The appellant was a fare paying passenger in motor vehicle registration number KBB 559L which collided with the other motor vehicle registration number KBD 239N as a result of which she sustained injuries. In her suit, she pleaded negligence against drivers of both vehicles. The respondents were the respective owners of the vehicles and would therefore be vicariously liable for the negligence of the drivers.
3. The case was defended by the respondents through their respective statements of defence. Each of them denied liability against himself as pleaded by the appellant and put her to strict proof.
4. In his statement of defence dated 29th July 2021 the 1st respondent blamed the driver of the 2nd respondent’s motor vehicle for the accident. Similarly, in his statement of defence dated 30th August 2022 the 2nd respondent blamed the driver of the 1st respondent’s motor vehicle and also pleaded contributory negligence against the appellant as a passenger in the 1st appellant’s motor vehicle.
5. At the hearing the appellant testified as PW 1 and called two other witnesses, PW 2, Dr. D. Kiema and PW 3, Rachael Haluki Emmanuel, an eye witness who was a passenger in the same vehicle as the appellant.
6. The 1st respondent closed his case without calling evidence at the hearing.
7. The 2nd respondent called two witnesses, DW 1, Nasa Hamisi Mohammed, the driver of motor vehicle registration number KBD 239N and DW 2, PC Kelvin Muriungi of Diani police station.
8. The appellant Linah Hagari Mwarabu, testified three times. Her first two testimonies were set aside on application of each of the respondents who came on record late, one after the other respectively.
9. In her testimony on the third occasion, she testified as PW 1 on 3rd May 2023 and adopted her witness statement dated 20th April 2021 as her evidence in chief and also produced the various documents in her list as exhibits. The appellant’s evidence on how the accident occurred was that the matatu registration number KBB 559L she had boarded collided with another registration number KBD 239N. In her witness statement, she said that she blamed both drivers and owners of the vehicles for the accident as particularized in the plaint. In cross-examination she said that she was seated on the seat second to the last and she could see clearly what was happening. She said further that motor vehicle KBB 559L was unroadworthy because along the way, it got spoilt the first time before they proceeded on and after a short while it was involved in the accident. In re-examination she said that she could not really know if a motor vehicle was unroadworthy and that if indeed it was police would have stopped it on the way.
10. Rachael Haluku Emmanuel, the appellant’s witness testified as PW 3. She also adopted her witness statement as evidence in chief. She said she lives with the appellant as her househelp. They were together in the same vehicle at the time of the accident. Her evidence on how the accident occurred was that the motor vehicle she was travelling in registration number KBB 559L collided with another registration number KBD 239N. She blamed both drivers for causing the accident. In cross-examination, PW 3 said that at a certain point the motor vehicle they were travelling in stalled and the driver was forced to have it repaired before they proceeded with their journey.
11. For the 2nd respondent, DW 1, Nasa Hamisi Mohammed testified on 15/5/2024. He adopted his witness statement as his evidence in chief. He testified that on the material day, he was driving motor vehicle registration number KBD 239N going to Likoni from Ukunda. When he got to Mabriver area, there was a collision involving his vehicle and motor vehicle registration number KBB 559L. He blamed the driver of the other vehicle for the accident because for overtaking at a black spot where overtaking is prohibited and for driving very fast. He said the other vehicle went and hit his vehicle while it was off the road. In cross-examination, DW 1 said that he stopped at to pick a passenger at a known bus stage though unmarked. When he was done he decided to get back onto the road but on doing so, he observed that the other oncoming motorist was overtaking. He decided to move back off road to allow him pass. However, instead of successfully passing, the vehicle collided with his. He said the other motorist was driving fast and at a high speed.
12. DW 2, PC Kelvin Muriungi of Diani police station was not the investigating officer and neither did he visit the scene of the accident.
13. After trial the learned trial magistrate found on the issue of liability that the same had been proved against the 1st respondent but not against the 2nd respondent. She thus dismissed the case against the 2nd respondent.
14. The appellant was dissatisfied with the decision to dismiss the case against the 2nd respondent and now appeals to this court on a single ground that the learned trial magistrate erred in law and in fact by dismissing the appellant’s case against the 2nd respondent with costs.
15. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court delivered on 19th September 2024 with costs and substitute it with an order apportioning liability jointly and severally against the 1st and 2nd respondents and the appellant to be awarded costs of the appeal.
16. The appeal was canvassed through written submissions filed by learned counsels for the appellant and the 2nd respondent. The 1st respondent did not participate in the appeal.
17. I have considered the proceedings before the trial court, the judgment of the court, the grounds of appeal and the submissions by learned counsels for the parties in this appeal.
18. 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. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
19. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with findings of fact by the trial court as was stated in the case of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
20. The principles under which an appellate court can justifiably interfere with a finding of fact by the trial court as set out in the cases of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR) and Simon Muchemi Atako & another v Gordon Osore [2013] KECA 128 (KLR) are:
i. The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
ii. The trial court misapprehended the evidence in some material respect.
iii. The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
iv. The trial Magistrate failed to take account of a particular circumstance or probability material to an estimate of the evidence
v. The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally.
21. Learned counsel for the appellant has submitted, citing the cases of Charles Ochieng’ Anyango v Fredrick Mwiti Mwenda [2021] KEHC 9263 (KLR) and Sancha v Oeri & another [2023] KEHC 4145 (KLR), that no contributory negligence in the manner of driving and or control of a vehicle ought to be attached to a passenger. In the circumstances of this case, that submission is correct and I accept it. Save that I have not seen anywhere in the judgment the learned trial magistrate attributed liability against the appellant.
22. Learned counsel for the 2nd respondent submitted that the only issue for determination was whether the learned trial magistrate applied the proper principles in dismissing the appellant’s case against the 2nd respondent.
23. It is also correct as submitted by learned counsel for the appellant that a conviction for a traffic offence does not mean that the accused person is automatically liable in negligence just as an acquittal does not automatically mean that the accused person is not liable. The aspect of contributory negligence has to be considered in view of the fact that the standard of proof in a criminal trial is higher than for a civil case. Learned counsel correctly cited the decision of the Court of Appeal in the case of David Kinyanjui & 2 Others vs. Meshack Omari Monyoro Civil Appeal No. 125 of 1993, held that a conviction does not close the door to a defence on liability, as the issue of contributory negligence is open to the defendant
24. The learned trial magistrate found that the evidence of DW 1, the driver of the 2nd respondent’s vehicle on how the accident occurred was supported by the appellant’s own evidence and that of her witness that the accident was caused by the 1st respondent’s vehicle which left its lane and hit the 2nd respondent’s vehicle which was off the road.
25. I have considered the evidence of DW 1 before the trial court. He testified that he had stopped his vehicle at a designated bus stop to drop a passenger and was just starting off when he saw the 1st respondent’s vehicle overtaking another at high speed. He stopped his vehicle and pulled off the road but the 1st respondent’s vehicle went to his side and hit his vehicle, thereby causing the accident. There was no other evidence to controvert what DW 1 said. The learned trial magistrate was therefore correct to rely upon it to find that the 1st respondent’s driver was negligent in the circumstances.
26. I note that the learned trial magistrate went ahead to refer to the police abstract as having corroborated the evidence of DW 1 but that finding was not correct. Given that DW 2 was not the investigating officer and he had not even visited the scene, the best he did was to produce the police abstract as evidence that indeed the accident had been reported at Diani police station and investigations conducted. However, the findings of the investigations as contained in the file or the police abstract were hearsay evidence that could not be relied upon.
27. However, that error by the learned trial magistrate was not fatal because, already there was evidence from eye witnesses being the appellant, her witness and DW 1.
28. It would appear that learned counsel in his submissions herein relies on evidence adduced by the parties earlier before the 2nd respondent came on board in the proceedings before the trial court. However, those earlier proceedings were set aside and the 2nd respondent granted leave to file defence and the hearing started afresh. For instance, I do not see in the proceedings after the 2nd respondent had come on board the 2nd respondent himself testifying at all yet the appellant submits that:
“the 2nd respondent confirmed, that his driver neither holds a valid driving license nor a PSV badge both of which are mandatory, statutory requirements for all matatu drivers. It was also confirmed that the 2nd respondent’s matatu was not in a road worthy condition as no motor vehicle inspection report was produced to dispel this allegation. Immediately before the accident, the 2nd respondent’s driver admitted that he had veered off road in an unsuccessful attempt at picking a potential passenger from a place that was not a designated bus stop/matatu stage.”
29. From the foregoing submission, it would appear that the appellant misapprehended the evidence tendered by the driver of the 2nd respondent’s vehicle, DW 1. The driver never said that he did not hold a valid driving licence or that he did not have a badge. In fact, he was emphatic that he had both of them save that he had not carried them to court for production that day. I any case, even if he did not hold them, there was no evidence that his manner of driving demonstrated that he was an incompetent driver or that he contributed to the accident. The appellant and her witness only stated that they blamed both drivers for the accident without evidence of negligence against DW 1.
30. Again, DW 1 did not testify that he had veered off road in an unsuccessful attempt at picking a potential passenger from a place that was not a designated bus stop. That was not what he said at all.
31. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
32. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
33. The 1st respondent alleged negligence against the 2nd respondent but there was no evidence to support that allegation. The 2nd respondent presented evidence by way of witnesses and the same was supported by the appellant and her witness on how the accident occurred. All these were eye-witnesses to the accident. None of them lay blame upon the driver of the 2nd respondent. The allegation by the appellant that DW 1 was speeding was not substantiated and it was dispelled by DW 1 who said he was just leaving the stage where he had stopped when the other vehicle went towards his and in spite of pulling his vehicle off the road, the other vehicle collided into it. Under those circumstances, he could not have been speeding. No other evidence was tendered to discount what he said. The trial magistrate was therefore correct to find that the case against the 2nd respondent had not been proved on a balance of probability.
34. There is no dispute that there was a collision between the 2nd respondents’ vehicle and that of the 1st respondent. The accident indeed happened. The 2nd respondent came forward and gave his version of what happened. There is no other evidence to challenge it.
35. Therefore, I do not find the submission by learned counsel for the appellant that the learned trial magistrate erred in dismissing the case against the 2nd respondent to have merit. There was no evidence at all that the 2nd respondent’s driver was to blame for the accident.
36. Consequently, the decision of the trial magistrate dismissing the appellant’s case against the 2nd respondent is affirmed and the appeal is dismissed.
37. The appellant shall bear the costs of the appeal.
Dated, signed and delivered on the Virtual Platform, Teams this 1st day of September 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Masore for the appellant.
N/A for the 1st respondent.
N/A for the 2nd respondent.
Ummu Court Assistant.
'