REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
CIVIL APPEAL NO. E078 OF 2023
(Coram: Andayi W. F., J.)
LUCY WAMUTIRA WANJOHI
(Suing on her behalf and as personal representative
of the estate of the late EDWIN MUNENE WANJOHI…APPELLANT
VERSUS
GERALD MUNENE MUGO…………………………..RESPONDENT
(Being an Appeal from the judgment and decree of Hon. G. W. Kirugumi Principal Magistrate in Kerugoya Magistrates Court Civil Suit No. E144 of 2022 delivered on 13/9/2023)
JUDGMENT
1. The appeal herein is on the issue of liability only. It arises from a decree out of a judgment by the trial court delivered on 13/9/2023. The deceased died from injuries sustained in a road traffic accident involving the respondent’s vehicle registration number KBA 393E, driven by Antony Wachira Ngari and a motor cycle registration number KMGC 112V which the deceased was riding. The accident occurred on 21/7/2022 at around 7.30 p.m. along the Kerugoya-Karatina road where the vehicle and the motorcycle collided. The trial court apportioned liability in the ratio of 50:50 finding that it was difficult to conclude with certainty how the accident occurred.
2. The appellant was dissatisfied with that decision and now appeals to this court through a memorandum dated 18/9/2023. The grounds are that the learned trial magistrate erred in law and in fact:
a) in failing to consider adequately or at all the totality of the evidence that was tendered on liability and in so doing she arrived at an erroneous finding on liability.
b) in finding the appellant 50 per cent liable for the accident despite the absence of evidence to support such a finding.
c) in the manner that she analysed the evidence of PW 4 that demonstrated the point of impact.
d) in failing to consider the inconsistencies of the respondent’s witnesses’ evidence in failing to consider the appellant’s submission on liability and in so doing arrived at an erroneous decision.
3. The appellant therefore prays to this court to allow the appeal, set aside the trial court’s decision on liability and proceed to determine the issue and award costs to the appellant.
4. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
5. This being a first appeal, the duty of this court is to examine, 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)”.
6. Learned counsel for the appellant urged all the grounds of appeal together.
Analysis and Determination
7. The issues raised by learned counsel for the appellant can be summed up into one, that is, whether the learned trial magistrate was right in apportioning liability equally between the parties.
8. The evidence tendered before the trial court on how the accident occurred was from three witnesses. PW 3 Miachael Wanyeki Karani said that he was driving his motor vehicle registration number KCK 625A behind the respondent’s motor vehicle registration number KBA 393E from the Kagumo direction towards Kerugoya direction. The deceased’s motor cycle was being driven ahead of them from the opposite direction. He said the respondent’s vehicle left its lane and knocked down the motor cycle. PW 3 left his vehicle and went to witness what had happened.
9. In cross-examination, PW 3 said that the driver of the accident vehicle was driving in a bad manner. He went into the lane of the motor cycle and hit it. He said that he was able to see the motor cycle ahead well and that the driver of the accident vehicle could also see it well. Asked what could have caused the driver to leave his lane into that of the motorcycle he said he could not tell. He said the point of impact was on the right side of the road towards Kerugoya, where they were heading, meaning the motorcycle lane. He said he did record a statement with the police at all.
10. The other eye witness evidence was from the driver of the accident vehicle DW 1, Antony Wachira Ngari and his passenger DW 2, Michael Wanjohi Mugo.
11. DW 1, stated that he was driving from Karatina to Kerugoya. At the point of the accident, the motor cycle rider who was riding very fast left his lane, went into his vehicle’s lane and hit his vehicle on the passenger side. He applied brakes and and his vehicle swerved into the opposite lane.
12. In cross-examination, the driver said that the motor cycle was on its lane when he first saw it some 300 metres ahead. He said that the point of impact was on his lane and the deceased landed on the rear side of his vehicle in the middle of the road while the motor cycle rested on the lane towards Kagumo. He also said that the rider was on the wrong lane when he saw him and was standing while riding the motor cycle. He also said that the motorcyclist went into his lane when they were almost passing each other.
13. DW 1 said that police officers attended the scene. He was charged with the offence of dangerous driving and he had been put on his defence at the time of his testimony in this case.
14. DW 2 gave evidence similar to that of DW 1. He said that the motorcyclist left his lane and hit their vehicle and the impact made their vehicle to veer off.
15. In cross-examination, DW 2 conceded that in his statement recorded with the police following the accident he did not state that the motorcyclist was on the wrong lane. He also conceded that he had recorded in his statement that their vehicle stopped lane. He said that when he saw the motor cycle it was not on its lane. He then said that it was on its lane, the opposite lane when he saw it for the first time and then left it to their lane. He however said he could not tell the time it changed to their lane as he only heard a bang. He conceded that in his statement he had not indicated that the motorcycle left its lane to theirs. He said their vehicle veered due to the impact and landed on the Kagumo lane side where it stopped.
16. The other evidence was from PW 4, Sgt Timothy Ringera, a police officer who narrated the investigating officer’s findings. The investigating officer was away on leave. PW 4 however said that he issued the police abstract in the case. He said that he drew the rough sketch map and fair sketch map. He also said that he did visit the scene the following day. He said that the accident vehicle was overtaking when it encroached on the lane of the motor cycle and collided with it. The police blamed the driver of the motor vehicle for the accident and had him charged with causing death by dangerous driving.
17. In cross-examination, PW 4 said that the accident occurred at a bend with a continuous yellow line. He said the point of impact was on the motorcyclist’s lane heading to Kagumo at 2 meters.
18. Learned counsel for the appellant submitted that the evidence by the appellant, meaning of PW 3 and PW 4 was consistent and credible. The evidence confirmed that the point of impact was on the lawful lane of the motorcyclist towards Kagumo. He submitted that for this reason, the finding by the learned trial magistrate that there was no evidence to show with certainty the point of impact was erroneous. He supported his submissions on the credibility of the police findings with the case of Swan Carriers Ltd v Damaris Wambui (Suing as the legal representative to the estate of the late Maritim Mwangi Ngirigasha [2019] KEHC 7717 (KLR) where it was held that:
“Ordinarily the police are expected to carry out investigations before arriving at the decision as to who is to blame for the accident. Their findings are recorded in occurrence book. I believe they did that before recording in occurrence book that the driver of KAN140V was to blame for the accident. Police abstracts lifts the contents of occurrence book. The appellant who fully participated in the trial court did not challenge that evidence. Standard of prove in civil matters is on a balance of probabilities. On the absence of evidence to the contrary to challenge evidence adduced the court is left with no option but to rely on evidence available.”
19. Learned counsel also submitted that the defence evidence was contradictory and inconsistent. He submitted that parries are bound by their pleadings pointing out that in the defence the defendant did not plead that the deceased encroached on the lane of the motor vehicle. He also pointed out what he thought were inconsistencies in the recorded statements of the defence witnesses and their testimonies in court.
20. Learned counsel submitted that on a balance of probability the appellant had proved liability against the respondent on a 100 per cent basis and this court should so find and allow the appeal and set aside the trial court’s decision.
21. Learned counsel for the respondent submitted citing sections 107, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the general legal burden of proof lying on the appellant to prove her case and the evidential burden of proof on the party who desires the court to believe any particular fact. He also cited the cases of Jamal Ramadhan Yusuf & another v Ruth Achieng Onditi & another [2010] KEHC 381 (KLR) to the effect that he who asserts must prove and a party who sues for damages on the basis of negligence must prove such negligence with cogent and credible evidence.
22. Learned counsel submits that the evidence of PW 1 and PW 2 based on the final resting position of the body and blood stains is not reliable to prove negligence as they arrived at the scene after the accident. He submitted that similarly, the sketch maps were based on the final resting position of the motor vehicle, blood stains and the deceased’s body and not on the actual picture of how the accident occurred.
23. He submits further that the evidence of PW 3 is also not reliable because he did not record a statement with the police after the accident and so it cannot be ascertained that he indeed witnessed the accident as he alleged in his testimony. Learned counsel also discredited the evidence of PW 4 on the basis that he was not the investigating officer and neither did he visit the scene after the accident the very day but the following day. He further submitted that the sketch maps produced by PW 4 were not reliable as they were contested by DW 1 and DW 2 who were eye witnesses to the accident.
24. Learned counsel submitted further that the particulars of negligence as set out in the plaint were not proved. He further relied on the case of Bawani Stores Limited & another v Margaret Magiiri Gitau [2015] KEHC 3454 (KLR) where the court finding that there was scanty evidence on the occurrence of the accident set aside the trial court’s decision on liability and substituted it with an apportionment of liability on a 50:50 ratio.
25. Learned counsel submits that the defendant adduced consistent and credible evidence and the same establishes how the accident occurred.
26. Learned counsel submits that when there are conflicting versions of how the accident occurred then it is appropriate as the trial court did in this case to apportion liability in the ratio of 50:50. He relies on the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR).
27. I have examined the evidence tendered at trial and reevaluated it, I have also considered the submissions made by learned counsels for the parties in this appeal.
28. 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.”
29. 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.”
30. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
31. The appellants presented evidence from PW 3, of how the accident occurred. PW 1, Lucy Wamutira Wanjohi, the mother of the deceased and PW 2, Antony Muthie Wanjohi, a brother of the deceased went to the scene shortly after the accident. PW 1 said in her evidence in chief that she saw the body, the motor cycle and the vehicle on the left side of the road towards Kagumo. Her evidence is consistent with what PW 3 said and the sketch maps produced in evidence by PW 4.
32. Learned counsel for the respondent submits that it cannot be ascertained that indeed PW 3 was a witness to the accident. However, this witness gave evidence and was cross-examined. He said he was at the scene. He was driving behind the respondent’s vehicle. He could see ahead well. He saw the motorcyclist ahead and then narrated how he saw the accident occur. His credibility was not impeached in cross-examination.
33. The other eye witnesses to the accident, DW 1 and DW 2 also narrated their respective versions of the accident.
34. It was upon the learned trial magistrate to place the evidence of these eye witnesses side by side and determine which was credible and which one was not. Considering the learned trial magistrate’s analysis of the evidence I find that other than mentioning PW 3 she did not analyze his evidence. She said:
“In the circumstances there is the narration of pw3 and pw4, the sketch maps which are based on not actual eye witness accounts but on the final resting positions of the body, the vehicle and the blood stain and the actual eye witness account of the driver and his passenger.
As the sketch maps contradict the evidence of the driver and his passenger it is difficult to conclude with certainty how the accident occurred. I therefore apportion liability at 50/50 between the driver and the driver. Hence the Plaintiff and Defendant will share liability at 50/50.”
35. In that analysis, there is no consideration of the evidence of PW 3 at all. Only the evidence of the accident vehicle’s driver DW 1 and his passenger DW 2 and that of the police investigations in the form of sketch maps was considered. That was an error on the part of the learned trial magistrate as she failed to consider material evidence in the case.
36. Looking at the recorded statements of DW 1 and DW 2, which is basically word for word, one by the other, each of them alleged that he saw the motorcycle, “… being driven on our rightful lane.” This common statement was coming from two different people. It means that when they saw the motorcyclist he was riding in the lane of the vehicle. Indeed, the driver’s statement to the police which was produced in the evidence of the appellant was that when he saw the motor cyclist, he was riding in the wrong lane. The question would then be, what evasive action did this driver who had seen the motorcycle at a safe distance of 300 metres away do to avoid a collision” He said that he slowed down but not that he swerved to any side of the road to avoid an imminent collision or even hooted to alert the motorcyclist that he was on the wrong.
37. In cross-examination, DW 1 first said that the motorcycle was on its lane when he first saw it at a distance of about 300 metres. Later he said that the motorcyclist was riding in the wrong lane while standing when he saw him. He then stated that “as per my statement, when I saw him, he was riding on the wrong lane. He came to my lane when we were almost passing each other.” These statements from the same witness are inconsistent and self-contradictory and the court cannot determine the correct one to rely upon.
38. In re-examination, the driver said that he saw the motorcyclist after it emerged from the corner, meaning that the accident did not happen right at the corner. The submission by learned counsel for the respondent that the motor cyclist encroached the driver’s lane after failing to successfully negotiate a sharp corner is not born out of evidence on record.
39. The driver’s passenger, DW 2, on his part said in cross-examination that, “It was not on its lane when I saw it. I saw it on the opposite lane. I saw it for the first time it was on its lane. It was on its lane. It left its lane to ours. I can’t tell the time it took. I just heard a bang. I don’t know at what point it came to our lane. My court witness statement I said it was on our lane. I didn’t say it left its lane to ours.” Again, that evidence is inconsistent and self-contradictory with respect to which lane the motor cyclist was riding when DW 2 first saw him, if at all he saw him earlier.
40. These internal inconsistencies and self-contradictions highlight the struggle the witnesses were going through to blame the motorcyclist for the accident.
41. Most importantly for both DW 1 and DW 2, if they saw the motor cyclist at a considerable distance of 300 metres, how come they could not see how the motorcycle entered the driver’s lane as they allege? There was nothing obstructing each of them from view. If at all they were being honest, they should have said exactly how the motorcyclist suddenly came to the driver’s lane for instance by suddenly swerving or losing control or even the motor cycle sliding into the driver’s lane. None of them had such an explanation. Taken together with the inconsistencies and contradictions pointed out above, it can only mean that DW 1 and DW 2 were not honest witnesses regarding how the accident occurred.
42. From the foregoing analysis, I agree with learned counsel for the appellant that the evidence of DW 1 and DW 2 was inconsistent not against each other but in itself, meaning they were really trying to say something uniform but they could not hold their fingers to it.
43. The evidence of PW 3 was not impeached in cross-examination. PW 3 was an independent witness unlike the driver of the accident vehicle and his passenger who obviously were interested in a favourable outcome for the respondent. In that case, their evidence considered beside that of PW 3, I would find PW 3 to be a more reliable witness than DW 1 and DW 2.
44. Besides, the evidence of PW 3, who did not even appear to record a statement with the police, supports the findings of the investigations that the driver of the accident vehicle was to blame for the accident. The police evidence of investigations is therefore not without an anchor as it is supported by the eye-witness account of PW 3.
45. Finally, as submitted by learned counsel for the appellant, parties are bound by their pleadings. The respondent did not plead that the deceased was negligent for riding his motor cycle in the wrong lane of the oncoming vehicle. That reinforces the finding that in fact, the evidence that the motor cyclist encroached onto the lane of the vehicle was not honest.
46. For the foregoing reasons, I find that the learned trial magistrate failed first to consider the crucial evidence tendered by the witness for the appellant and secondly, to subject the evidence of the defendants to proper scrutiny so as to find that it lacked consistence and was riddled with major contradictions and could not be relied upon.
47. Consequently, that decision has to be set aside and substituted with a finding that the appellant gave credible evidence which was convincing on how the accident occurred and therefore proved her case on a balance of probabilities as required in law. The respondent is therefore found to be 100 per cent liable for the accident.
48. The appeal is allowed and the learned trial magistrate’s judgment on the issue of liability and consequential decree are set aside. The decision on assessment of damages shall however remain as the same was not challenged.
49. The appellants shall have the costs of this appeal.
50. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 21st of May 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Lumumba h/b for Mwangi for Appellant.
Rigaga (Ms) for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
CIVIL APPEAL NO. E078 OF 2023
(Coram: Andayi W. F., J.)
LUCY WAMUTIRA WANJOHI
(Suing on her behalf and as personal representative
of the estate of the late EDWIN MUNENE WANJOHI…APPELLANT
VERSUS
GERALD MUNENE MUGO…………………………..RESPONDENT
(Being an Appeal from the judgment and decree of Hon. G. W. Kirugumi Principal Magistrate in Kerugoya Magistrates Court Civil Suit No. E144 of 2022 delivered on 13/9/2023)
JUDGMENT
1. The appeal herein is on the issue of liability only. It arises from a decree out of a judgment by the trial court delivered on 13/9/2023. The deceased died from injuries sustained in a road traffic accident involving the respondent’s vehicle registration number KBA 393E, driven by Antony Wachira Ngari and a motor cycle registration number KMGC 112V which the deceased was riding. The accident occurred on 21/7/2022 at around 7.30 p.m. along the Kerugoya-Karatina road where the vehicle and the motorcycle collided. The trial court apportioned liability in the ratio of 50:50 finding that it was difficult to conclude with certainty how the accident occurred.
2. The appellant was dissatisfied with that decision and now appeals to this court through a memorandum dated 18/9/2023. The grounds are that the learned trial magistrate erred in law and in fact:
a) in failing to consider adequately or at all the totality of the evidence that was tendered on liability and in so doing she arrived at an erroneous finding on liability.
b) in finding the appellant 50 per cent liable for the accident despite the absence of evidence to support such a finding.
c) in the manner that she analysed the evidence of PW 4 that demonstrated the point of impact.
d) in failing to consider the inconsistencies of the respondent’s witnesses’ evidence in failing to consider the appellant’s submission on liability and in so doing arrived at an erroneous decision.
3. The appellant therefore prays to this court to allow the appeal, set aside the trial court’s decision on liability and proceed to determine the issue and award costs to the appellant.
4. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
5. This being a first appeal, the duty of this court is to examine, 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)”.
6. Learned counsel for the appellant urged all the grounds of appeal together.
Analysis and Determination
7. The issues raised by learned counsel for the appellant can be summed up into one, that is, whether the learned trial magistrate was right in apportioning liability equally between the parties.
8. The evidence tendered before the trial court on how the accident occurred was from three witnesses. PW 3 Miachael Wanyeki Karani said that he was driving his motor vehicle registration number KCK 625A behind the respondent’s motor vehicle registration number KBA 393E from the Kagumo direction towards Kerugoya direction. The deceased’s motor cycle was being driven ahead of them from the opposite direction. He said the respondent’s vehicle left its lane and knocked down the motor cycle. PW 3 left his vehicle and went to witness what had happened.
9. In cross-examination, PW 3 said that the driver of the accident vehicle was driving in a bad manner. He went into the lane of the motor cycle and hit it. He said that he was able to see the motor cycle ahead well and that the driver of the accident vehicle could also see it well. Asked what could have caused the driver to leave his lane into that of the motorcycle he said he could not tell. He said the point of impact was on the right side of the road towards Kerugoya, where they were heading, meaning the motorcycle lane. He said he did record a statement with the police at all.
10. The other eye witness evidence was from the driver of the accident vehicle DW 1, Antony Wachira Ngari and his passenger DW 2, Michael Wanjohi Mugo.
11. DW 1, stated that he was driving from Karatina to Kerugoya. At the point of the accident, the motor cycle rider who was riding very fast left his lane, went into his vehicle’s lane and hit his vehicle on the passenger side. He applied brakes and and his vehicle swerved into the opposite lane.
12. In cross-examination, the driver said that the motor cycle was on its lane when he first saw it some 300 metres ahead. He said that the point of impact was on his lane and the deceased landed on the rear side of his vehicle in the middle of the road while the motor cycle rested on the lane towards Kagumo. He also said that the rider was on the wrong lane when he saw him and was standing while riding the motor cycle. He also said that the motorcyclist went into his lane when they were almost passing each other.
13. DW 1 said that police officers attended the scene. He was charged with the offence of dangerous driving and he had been put on his defence at the time of his testimony in this case.
14. DW 2 gave evidence similar to that of DW 1. He said that the motorcyclist left his lane and hit their vehicle and the impact made their vehicle to veer off.
15. In cross-examination, DW 2 conceded that in his statement recorded with the police following the accident he did not state that the motorcyclist was on the wrong lane. He also conceded that he had recorded in his statement that their vehicle stopped lane. He said that when he saw the motor cycle it was not on its lane. He then said that it was on its lane, the opposite lane when he saw it for the first time and then left it to their lane. He however said he could not tell the time it changed to their lane as he only heard a bang. He conceded that in his statement he had not indicated that the motorcycle left its lane to theirs. He said their vehicle veered due to the impact and landed on the Kagumo lane side where it stopped.
16. The other evidence was from PW 4, Sgt Timothy Ringera, a police officer who narrated the investigating officer’s findings. The investigating officer was away on leave. PW 4 however said that he issued the police abstract in the case. He said that he drew the rough sketch map and fair sketch map. He also said that he did visit the scene the following day. He said that the accident vehicle was overtaking when it encroached on the lane of the motor cycle and collided with it. The police blamed the driver of the motor vehicle for the accident and had him charged with causing death by dangerous driving.
17. In cross-examination, PW 4 said that the accident occurred at a bend with a continuous yellow line. He said the point of impact was on the motorcyclist’s lane heading to Kagumo at 2 meters.
18. Learned counsel for the appellant submitted that the evidence by the appellant, meaning of PW 3 and PW 4 was consistent and credible. The evidence confirmed that the point of impact was on the lawful lane of the motorcyclist towards Kagumo. He submitted that for this reason, the finding by the learned trial magistrate that there was no evidence to show with certainty the point of impact was erroneous. He supported his submissions on the credibility of the police findings with the case of Swan Carriers Ltd v Damaris Wambui (Suing as the legal representative to the estate of the late Maritim Mwangi Ngirigasha [2019] KEHC 7717 (KLR) where it was held that:
“Ordinarily the police are expected to carry out investigations before arriving at the decision as to who is to blame for the accident. Their findings are recorded in occurrence book. I believe they did that before recording in occurrence book that the driver of KAN140V was to blame for the accident. Police abstracts lifts the contents of occurrence book. The appellant who fully participated in the trial court did not challenge that evidence. Standard of prove in civil matters is on a balance of probabilities. On the absence of evidence to the contrary to challenge evidence adduced the court is left with no option but to rely on evidence available.”
19. Learned counsel also submitted that the defence evidence was contradictory and inconsistent. He submitted that parries are bound by their pleadings pointing out that in the defence the defendant did not plead that the deceased encroached on the lane of the motor vehicle. He also pointed out what he thought were inconsistencies in the recorded statements of the defence witnesses and their testimonies in court.
20. Learned counsel submitted that on a balance of probability the appellant had proved liability against the respondent on a 100 per cent basis and this court should so find and allow the appeal and set aside the trial court’s decision.
21. Learned counsel for the respondent submitted citing sections 107, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the general legal burden of proof lying on the appellant to prove her case and the evidential burden of proof on the party who desires the court to believe any particular fact. He also cited the cases of Jamal Ramadhan Yusuf & another v Ruth Achieng Onditi & another [2010] KEHC 381 (KLR) to the effect that he who asserts must prove and a party who sues for damages on the basis of negligence must prove such negligence with cogent and credible evidence.
22. Learned counsel submits that the evidence of PW 1 and PW 2 based on the final resting position of the body and blood stains is not reliable to prove negligence as they arrived at the scene after the accident. He submitted that similarly, the sketch maps were based on the final resting position of the motor vehicle, blood stains and the deceased’s body and not on the actual picture of how the accident occurred.
23. He submits further that the evidence of PW 3 is also not reliable because he did not record a statement with the police after the accident and so it cannot be ascertained that he indeed witnessed the accident as he alleged in his testimony. Learned counsel also discredited the evidence of PW 4 on the basis that he was not the investigating officer and neither did he visit the scene after the accident the very day but the following day. He further submitted that the sketch maps produced by PW 4 were not reliable as they were contested by DW 1 and DW 2 who were eye witnesses to the accident.
24. Learned counsel submitted further that the particulars of negligence as set out in the plaint were not proved. He further relied on the case of Bawani Stores Limited & another v Margaret Magiiri Gitau [2015] KEHC 3454 (KLR) where the court finding that there was scanty evidence on the occurrence of the accident set aside the trial court’s decision on liability and substituted it with an apportionment of liability on a 50:50 ratio.
25. Learned counsel submits that the defendant adduced consistent and credible evidence and the same establishes how the accident occurred.
26. Learned counsel submits that when there are conflicting versions of how the accident occurred then it is appropriate as the trial court did in this case to apportion liability in the ratio of 50:50. He relies on the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR).
27. I have examined the evidence tendered at trial and reevaluated it, I have also considered the submissions made by learned counsels for the parties in this appeal.
28. 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.”
29. 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.”
30. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] [eKLR]. The Court while referring to Lord Nicholls in the Case above observed that in civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. The learned Judge said,
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
31. The appellants presented evidence from PW 3, of how the accident occurred. PW 1, Lucy Wamutira Wanjohi, the mother of the deceased and PW 2, Antony Muthie Wanjohi, a brother of the deceased went to the scene shortly after the accident. PW 1 said in her evidence in chief that she saw the body, the motor cycle and the vehicle on the left side of the road towards Kagumo. Her evidence is consistent with what PW 3 said and the sketch maps produced in evidence by PW 4.
32. Learned counsel for the respondent submits that it cannot be ascertained that indeed PW 3 was a witness to the accident. However, this witness gave evidence and was cross-examined. He said he was at the scene. He was driving behind the respondent’s vehicle. He could see ahead well. He saw the motorcyclist ahead and then narrated how he saw the accident occur. His credibility was not impeached in cross-examination.
33. The other eye witnesses to the accident, DW 1 and DW 2 also narrated their respective versions of the accident.
34. It was upon the learned trial magistrate to place the evidence of these eye witnesses side by side and determine which was credible and which one was not. Considering the learned trial magistrate’s analysis of the evidence I find that other than mentioning PW 3 she did not analyze his evidence. She said:
“In the circumstances there is the narration of pw3 and pw4, the sketch maps which are based on not actual eye witness accounts but on the final resting positions of the body, the vehicle and the blood stain and the actual eye witness account of the driver and his passenger.
As the sketch maps contradict the evidence of the driver and his passenger it is difficult to conclude with certainty how the accident occurred. I therefore apportion liability at 50/50 between the driver and the driver. Hence the Plaintiff and Defendant will share liability at 50/50.”
35. In that analysis, there is no consideration of the evidence of PW 3 at all. Only the evidence of the accident vehicle’s driver DW 1 and his passenger DW 2 and that of the police investigations in the form of sketch maps was considered. That was an error on the part of the learned trial magistrate as she failed to consider material evidence in the case.
36. Looking at the recorded statements of DW 1 and DW 2, which is basically word for word, one by the other, each of them alleged that he saw the motorcycle, “… being driven on our rightful lane.” This common statement was coming from two different people. It means that when they saw the motorcyclist he was riding in the lane of the vehicle. Indeed, the driver’s statement to the police which was produced in the evidence of the appellant was that when he saw the motor cyclist, he was riding in the wrong lane. The question would then be, what evasive action did this driver who had seen the motorcycle at a safe distance of 300 metres away do to avoid a collision” He said that he slowed down but not that he swerved to any side of the road to avoid an imminent collision or even hooted to alert the motorcyclist that he was on the wrong.
37. In cross-examination, DW 1 first said that the motorcycle was on its lane when he first saw it at a distance of about 300 metres. Later he said that the motorcyclist was riding in the wrong lane while standing when he saw him. He then stated that “as per my statement, when I saw him, he was riding on the wrong lane. He came to my lane when we were almost passing each other.” These statements from the same witness are inconsistent and self-contradictory and the court cannot determine the correct one to rely upon.
38. In re-examination, the driver said that he saw the motorcyclist after it emerged from the corner, meaning that the accident did not happen right at the corner. The submission by learned counsel for the respondent that the motor cyclist encroached the driver’s lane after failing to successfully negotiate a sharp corner is not born out of evidence on record.
39. The driver’s passenger, DW 2, on his part said in cross-examination that, “It was not on its lane when I saw it. I saw it on the opposite lane. I saw it for the first time it was on its lane. It was on its lane. It left its lane to ours. I can’t tell the time it took. I just heard a bang. I don’t know at what point it came to our lane. My court witness statement I said it was on our lane. I didn’t say it left its lane to ours.” Again, that evidence is inconsistent and self-contradictory with respect to which lane the motor cyclist was riding when DW 2 first saw him, if at all he saw him earlier.
40. These internal inconsistencies and self-contradictions highlight the struggle the witnesses were going through to blame the motorcyclist for the accident.
41. Most importantly for both DW 1 and DW 2, if they saw the motor cyclist at a considerable distance of 300 metres, how come they could not see how the motorcycle entered the driver’s lane as they allege? There was nothing obstructing each of them from view. If at all they were being honest, they should have said exactly how the motorcyclist suddenly came to the driver’s lane for instance by suddenly swerving or losing control or even the motor cycle sliding into the driver’s lane. None of them had such an explanation. Taken together with the inconsistencies and contradictions pointed out above, it can only mean that DW 1 and DW 2 were not honest witnesses regarding how the accident occurred.
42. From the foregoing analysis, I agree with learned counsel for the appellant that the evidence of DW 1 and DW 2 was inconsistent not against each other but in itself, meaning they were really trying to say something uniform but they could not hold their fingers to it.
43. The evidence of PW 3 was not impeached in cross-examination. PW 3 was an independent witness unlike the driver of the accident vehicle and his passenger who obviously were interested in a favourable outcome for the respondent. In that case, their evidence considered beside that of PW 3, I would find PW 3 to be a more reliable witness than DW 1 and DW 2.
44. Besides, the evidence of PW 3, who did not even appear to record a statement with the police, supports the findings of the investigations that the driver of the accident vehicle was to blame for the accident. The police evidence of investigations is therefore not without an anchor as it is supported by the eye-witness account of PW 3.
45. Finally, as submitted by learned counsel for the appellant, parties are bound by their pleadings. The respondent did not plead that the deceased was negligent for riding his motor cycle in the wrong lane of the oncoming vehicle. That reinforces the finding that in fact, the evidence that the motor cyclist encroached onto the lane of the vehicle was not honest.
46. For the foregoing reasons, I find that the learned trial magistrate failed first to consider the crucial evidence tendered by the witness for the appellant and secondly, to subject the evidence of the defendants to proper scrutiny so as to find that it lacked consistence and was riddled with major contradictions and could not be relied upon.
47. Consequently, that decision has to be set aside and substituted with a finding that the appellant gave credible evidence which was convincing on how the accident occurred and therefore proved her case on a balance of probabilities as required in law. The respondent is therefore found to be 100 per cent liable for the accident.
48. The appeal is allowed and the learned trial magistrate’s judgment on the issue of liability and consequential decree are set aside. The decision on assessment of damages shall however remain as the same was not challenged.
49. The appellants shall have the costs of this appeal.
50. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 21st of May 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Lumumba h/b for Mwangi for Appellant.
Rigaga (Ms) for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE