(Being an Appeal from the decree emanating from the judgment of Hon. Sandra Ogot, Principal Magistrate delivered on 13th December 2024 at Msambweni Magistrates Court in Civil Case No. E098 of 2023)
1. The appellant filed this appeal through a memorandum dated 13th January 2025. The record of appeal is dated 14th February 2025 and filed in court on 7th March 2025.
2. The appeal is against the judgment of the trial court dated 13th December 2024. The appellant, in a plaint dated 28th July 2023 sued the respondents claiming compensation in general and special damages for injuries sustained by the appellant, a minor, in an accident that happened on 2nd June 2023 at 1400 Hours along the Vanga-Lunga Lunga road at Umba area near Vanga Range area.
3. The appellant pleaded that the minor was standing under a tree when the 1st respondent’s motor vehicle registration number KCE 209X Isuzu lorry which was being driven by the 2nd respondent and carrying sand suddenly reversed at high speed and as a result knocked down the appellant and ran over his right lower limb causing him life threatening injuries leading to amputation. As a result, the minor suffered pain loss and damage for which he holds the defendants liable. The appellant set out particulars of negligence against each of the respondents.
4. The case was defended by the respondents through their joint statement of defence dated 22nd September 2023. They denied liability against them as pleaded by the appellant and put him to strict proof. They also blamed the minor’s mother/next friend for leaving him unattended on the road and also the minor for failing to take good care of himself while on the road.
5. At the hearing the appellant called three witnesses.
6. PW 1, PC Vivian Amolo was the investigating officer in the case. She testified that on 2nd June 2023, the driver of motor vehicle registration number KCE 209X reported at Lunga Lunga police station that an accident had happened involving his motor vehicle and a minor by the name Sombo Mwachizi at a place where sand is normally harvested. The driver reported that sand had been harvested and loaded on the lorry and as he reversed the motor vehicle he knocked down the minor. The driver had taken the minor to hospital then gone to the police station and made the report.
7. PW 1, testified that she visited the scene and also the minor at the hospital. She later recorded witness statements. The minor had his limb amputated and it took some time for him to make his statement at the police station.
8. PW 1, testified that she blamed the driver of the lorry for the accident because while he was reversing the vehicle he should have used his side mirrors to see the minor. She also said that the minor was among those who were used to load the motor vehicle.
9. In cross-examination, PW 1 said that she recorded statements of witnesses who were at the scene. She recorded a statement from the victim and from another child who was present and with whom he was working loading the sand and that at the time the minor was behind the motor vehicle. PW 1 said she blamed the driver for the accident and recommended that he be charged for driving without due care and issued him with a notice of intended prosecution.
10. PW 2, Dr. Ajoni Adede examined the minor Sombo Mwachizi and prepared a medical report dated 10th July 2023 of the injuries sustained and extent of his disability as a result thereof. The minor suffered an amputation of the right lower limb above the knee after a crush injury. The doctor’s conclusion was that the minor suffered 50% permanent disability due to loss of right lower limb. The estimated cost of an artificial limb was KShs 150,000/= at AIC Kijabe Mission hospital. Since he was a minor and still growing, he would require replacement of the artificial limb every four years until he turned 18 years. He also said that artificial limbs have a lifespan of 15 to 20 years.
11. PW 3 Luvuno Mbovu Korome was the appellant’s mother. She said the appellant was then aged 15 years on 2nd May 2024. He was therefore about 14 years old when the accident happened on 2nd June 2023. PW 3 said she did not witness the accident but went to the hospital where she was told her son had been taken following the accident.
12. PW 3, also said that her son had gone to the river or lake to take a bath and he stood near a tree after bath when the motor vehicle reversed and hit him.
13. PW 3 said further that the minor was taken first to Lunga Lunga hospital where he was given first aid and then transferred to Msambweni hospital where he was admitted for about one month and that his leg had been amputated. She said the owners of the vehicle that hit the minor are the ones who paid the hospital bills.
14. The respondents closed their case without calling evidence at the hearing.
15. After trial the learned magistrate found on the issue of liability that the same had not been proved against the respondents and dismissed the appellant’s case.
16. The appellant was dissatisfied with the decision to dismiss the case against and now appeals to this court on the following grounds:
a. that the learned trial magistrate erred in law and fact and misdirected herself when she failed to consider the applicable law as to the injuries suffered by the appellant minor.
b. that the learned magistrate’s decision was unjust, against the weight of the evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
c. that the learned magistrate erred in fact and law by failing to appreciate and/or consider at all the evidence adduced by the appellant.
17. I have had to correct some minor mistakes of spelling in the grounds of appeal as for instance where it was written that the learned magistrate errored and where the appellant was referred to as the applicant.
18. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court and award costs of the appeal.
19. The appeal was canvassed by way of written submissions filed by learned counsels for the appellant and the respondent.
20. The delay in the delivery of this judgment was largely caused by the fact that submissions for the appellant were not immediately traced either in the court file or the Case Tracking System (e-filing) even as learned counsel for the appellant had informed the court on 4th June 2025 that they had filed the submissions. On that day, even though learned counsel for the respondent informed the court that they had challenges filing theirs as they had not been mapped in the case and so what they had filed had not reflected in the CTS, I have confirmed that the respondent’s submissions were filed on 4th June 2025 at 10:36:36 Hours and are on the system.
21. The submissions were later provided to the court by the court assistant.
22. I have considered the record of appeal, the grounds of appeal and the submissions by learned counsels for the parties. The issue for determination is whether the trial court reached a correct conclusion that the appellant had not proved his case on a balance of probability.
23. 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)”.
24. At the same time 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 consider, reanalyze and re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant 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.”
25. The principles which guide the circumstances 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 And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR 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 court 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
26. The same position was reiterated by the Court of Appeal in the decision cited by learned counsel for the appellant of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] KECA 65 (KLR).
27. In its judgment dated the 13th December 2024, upon analyzing the evidence, the trial court, made a finding that there was no evidence tendered on how the accident occurred and therefore the appellant had not proved his case on a balance of probabilities. It was the trial court’s finding that it was upon the plaintiff to prove the causal link between his injuries and the defendant’s negligence. That the plaintiff had asserted that the defendant reversed and injured him and the investigating officer had alleged that the driver failed to check his rear view mirror but that no one tendered such evidence. That neither PW 2 nor PW 3 witnessed the accident. However, the correct position is that the trial court should have attributed this to PW 1, the investigating officer and PW 3, the appellant’s mother. PW 2 was Dr. Ajoni Adede whose evidence was only on the injuries sustained by the appellant.
28. The trial court seems to have proceeded on the assumption that only eye-witness evidence could prove that the accident occurred and the manner in which it occurred. Whereas eye witness evidence is valuable, it is not the only evidence that can be used to prove fault on the part of a driver of a motor vehicle. Evidence of police investigations as experts in the field and their opinion on what they gather on how the accident occurred is equally important. Often times, eye witness accounts of how an accident occurred vary and police investigations come in to clarify the issues. Equally, evidence of police investigations on reconstruction of the scene depending on the evidence collected will be sufficient to prove a case especially in civil cases where the standard of proof is on a balance of probability.
29. In the present case, it is true as submitted by learned counsel for the respondent that there was no evidence of an eye witness. Not even the minor involved in the accident who was of competent age to testify. I also note from the proceedings that he appeared to have been present in court because when his mother, PW 3 was testifying the trial court noted that indeed his leg had been amputated, meaning the court had opportunity to see the amputation. The investigating officer also said that there were other minors around whose statements he recorded but none of them was called as a witness.
30. The question was whether the evidence of the investigating officer was sufficient to prove that the driver of the lorry was negligent. Learned counsel for the appellant submits that it was.
31. The learned trial magistrate found further that there was no testimony as to whether the driver knew that there were people at the back of the lorry as he reversed so that he could watch out for them. Further that there was no testimony that he drove the vehicle in an unsafe and dangerous manner as set out in the particulars of negligence. The trial court found even though the minor was injured it hard to believe that the driver’s actions were negligent.
32. I note that the evidence of the investigating officer and that of the minor’s mother on what the minor was doing at the scene of the accident at the time differed. The investigating officer said that the minor was among boys who used to load the lorry with sand. On her part, the mother said the minor had gone to the river to take a bath because they usually did that. No doubt, neither of the two was present at the scene.
33. I find the evidence of the investigating officer to be more credible and therefore reliable because she visited the scene and conducted investigations whereas for PW 3 she was using her suppositions since that is what she believed the minor could have been doing at the river at the time. The possibility that he could be there to take a bath and also help in loading the lorry with sand cannot be ruled out.
34. Section 107, 108 and 109 of the Evidence Act places the burden of proof of a particular fact on the person who wishes the court to believe in its existence unless it is proved by law that the proof of the fact shall lie on any particular person.
35. Learned counsel for the respondent submits that the appellant did not satisfy the evidential burden of proof as required under the above sections of the law. He supports his evidence with the case of Evans Mogire Omwansa v Benard Otieno Omolo & another [2016] KEHC 7139 (KLR) where it was held that:
“The provisions of the Evidence Act came to play that he who asserts must prove. It was the appellants duty to tender satisfactory evidence to discharge the burden placed upon him. It is not enough to say that since the opposing part has not testified, my testimony must be taken as truthful. It must be proved. The Respondents in their written submissions stated correctly that though they did not testify there was enough rebutall evidence during cross examination.”
36. The case of Statpack Industries v James Mbithi Munyao [2005] KEHC 2043 (KLR) is also cited for the position that not every injury is necessarily a result of someone’s negligence and an injury per se is not sufficient to hold someone liable for the same.
37. Learned counsel for the respondent submits that there was no evidence from anybody who was at the scene of the accident when it occurred to show that the driver of the vehicle failed to check his rear view mirror as alleged by the investigating officer. Further that there was no evidence to show that the driver knew that there were people at the back of the lorry as he reversed so that he could watch out for them.
38. 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.”
39. 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:
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.
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.
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.”
40. Further, 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.”
41. Considering the above decisions, I find that the trial court’s finding that there was no testimony as to whether the driver knew that there were people at the back of the lorry as he reversed so that he could watch out for them was erroneous. The driver of the vehicle, as a person in charge of a lethal machine was always under a duty of care to ensure that while using the machine, he did not put any other person in danger of being injured by the machine, unless it was shown that such danger was caused or contributed by the other person.
42. In this case, the circumstances of how the accident occurred have to be considered. Those circumstances were given in the pleadings and supported by the evidence of the investigating officer. The accident occurred at what I find from the evidence was a sand quarry and the vehicle was being driven in the reverse when it was involved in the accident.
43. It was upon the driver to ensure that the path behind him was clear before reversing. There is no indication that the driver made any form of warning to alert the people who were around that the vehicle was being reversed. As stated by the investigating officer, the driver also had the use of the vehicle’s side mirror to look behind and see that it was clear before reversing. The failure to do this and end up running over the minor’s leg meant that he was negligent in his actions.
44. The allegations of negligence made against the minor’s mother and next friend as well as against the minor were not substantiated. As for the minor’s mother the same have no basis at all since the minor was said to have been 14 years old at the time. He could by himself appreciate his environment including the presence of the vehicle there.
45. The allegations against the minor were not supported by any evidence, even the driver not having been made available to testify and rebut the evidence of the investigating officer.
46. As stated above, the respondents did not tender any evidence at the trial. The consequences of a party failing to adduce evidence were restated in the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J (as she then was) citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 cited by learned counsel for the respondent where it was held that:
“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”
47. The evidence of the respondent thus remained unchallenged as was held by the Court of Appeal in the case of John Wainaina Kagwe v Hussein Dairy Ltd [2013] eKLR, follows: -
“The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”
48. The appellant having discharged his burden of proof through the evidence of PW 1 that he was to blame for the accident, the evidential burden shifted to the respondents to prove their allegations set out in the defence. I find that by failing to call evidence in rebuttal, that was not done. What remained on record therefore pointed to a driver who was not alert while reversing the vehicle.
49. In the circumstances, I find that in evaluating the evidence, the learned trial magistrate erred by finding that the appellant had not adduced evidence to support his case. The conclusion that the driver was not liable for the accident was not supported by the evidence adduced before the court. The trial court’s finding on liability is therefore set aside and substituted with a finding that from the evidence, the driver was wholly liable for the accident and the owner of the vehicle vicariously liable.
50. The trial court nevertheless, correctly, proceeded to assess damages that would have been awardable to the appellant had it found the case proved. The assessment is not challenged by either of the parties and therefore the same remains.
51. In the result, the appeal is allowed with costs to the appellant.
52. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 17th day of December 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Ngure for the Appellant.
Mboya for the Respondent.
Ummu Court Assistant.
1. The appellant filed this appeal through a memorandum dated 13th January 2025. The record of appeal is dated 14th February 2025 and filed in court on 7th March 2025.
2. The appeal is against the judgment of the trial court dated 13th December 2024. The appellant, in a plaint dated 28th July 2023 sued the respondents claiming compensation in general and special damages for injuries sustained by the appellant, a minor, in an accident that happened on 2nd June 2023 at 1400 Hours along the Vanga-Lunga Lunga road at Umba area near Vanga Range area.
3. The appellant pleaded that the minor was standing under a tree when the 1st respondent’s motor vehicle registration number KCE 209X Isuzu lorry which was being driven by the 2nd respondent and carrying sand suddenly reversed at high speed and as a result knocked down the appellant and ran over his right lower limb causing him life threatening injuries leading to amputation. As a result, the minor suffered pain loss and damage for which he holds the defendants liable. The appellant set out particulars of negligence against each of the respondents.
4. The case was defended by the respondents through their joint statement of defence dated 22nd September 2023. They denied liability against them as pleaded by the appellant and put him to strict proof. They also blamed the minor’s mother/next friend for leaving him unattended on the road and also the minor for failing to take good care of himself while on the road.
5. At the hearing the appellant called three witnesses.
6. PW 1, PC Vivian Amolo was the investigating officer in the case. She testified that on 2nd June 2023, the driver of motor vehicle registration number KCE 209X reported at Lunga Lunga police station that an accident had happened involving his motor vehicle and a minor by the name Sombo Mwachizi at a place where sand is normally harvested. The driver reported that sand had been harvested and loaded on the lorry and as he reversed the motor vehicle he knocked down the minor. The driver had taken the minor to hospital then gone to the police station and made the report.
7. PW 1, testified that she visited the scene and also the minor at the hospital. She later recorded witness statements. The minor had his limb amputated and it took some time for him to make his statement at the police station.
8. PW 1, testified that she blamed the driver of the lorry for the accident because while he was reversing the vehicle he should have used his side mirrors to see the minor. She also said that the minor was among those who were used to load the motor vehicle.
9. In cross-examination, PW 1 said that she recorded statements of witnesses who were at the scene. She recorded a statement from the victim and from another child who was present and with whom he was working loading the sand and that at the time the minor was behind the motor vehicle. PW 1 said she blamed the driver for the accident and recommended that he be charged for driving without due care and issued him with a notice of intended prosecution.
10. PW 2, Dr. Ajoni Adede examined the minor Sombo Mwachizi and prepared a medical report dated 10th July 2023 of the injuries sustained and extent of his disability as a result thereof. The minor suffered an amputation of the right lower limb above the knee after a crush injury. The doctor’s conclusion was that the minor suffered 50% permanent disability due to loss of right lower limb. The estimated cost of an artificial limb was KShs 150,000/= at AIC Kijabe Mission hospital. Since he was a minor and still growing, he would require replacement of the artificial limb every four years until he turned 18 years. He also said that artificial limbs have a lifespan of 15 to 20 years.
11. PW 3 Luvuno Mbovu Korome was the appellant’s mother. She said the appellant was then aged 15 years on 2nd May 2024. He was therefore about 14 years old when the accident happened on 2nd June 2023. PW 3 said she did not witness the accident but went to the hospital where she was told her son had been taken following the accident.
12. PW 3, also said that her son had gone to the river or lake to take a bath and he stood near a tree after bath when the motor vehicle reversed and hit him.
13. PW 3 said further that the minor was taken first to Lunga Lunga hospital where he was given first aid and then transferred to Msambweni hospital where he was admitted for about one month and that his leg had been amputated. She said the owners of the vehicle that hit the minor are the ones who paid the hospital bills.
14. The respondents closed their case without calling evidence at the hearing.
15. After trial the learned magistrate found on the issue of liability that the same had not been proved against the respondents and dismissed the appellant’s case.
16. The appellant was dissatisfied with the decision to dismiss the case against and now appeals to this court on the following grounds:
a. that the learned trial magistrate erred in law and fact and misdirected herself when she failed to consider the applicable law as to the injuries suffered by the appellant minor.
b. that the learned magistrate’s decision was unjust, against the weight of the evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
c. that the learned magistrate erred in fact and law by failing to appreciate and/or consider at all the evidence adduced by the appellant.
17. I have had to correct some minor mistakes of spelling in the grounds of appeal as for instance where it was written that the learned magistrate errored and where the appellant was referred to as the applicant.
18. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court and award costs of the appeal.
19. The appeal was canvassed by way of written submissions filed by learned counsels for the appellant and the respondent.
20. The delay in the delivery of this judgment was largely caused by the fact that submissions for the appellant were not immediately traced either in the court file or the Case Tracking System (e-filing) even as learned counsel for the appellant had informed the court on 4th June 2025 that they had filed the submissions. On that day, even though learned counsel for the respondent informed the court that they had challenges filing theirs as they had not been mapped in the case and so what they had filed had not reflected in the CTS, I have confirmed that the respondent’s submissions were filed on 4th June 2025 at 10:36:36 Hours and are on the system.
21. The submissions were later provided to the court by the court assistant.
22. I have considered the record of appeal, the grounds of appeal and the submissions by learned counsels for the parties. The issue for determination is whether the trial court reached a correct conclusion that the appellant had not proved his case on a balance of probability.
23. 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)”.
24. At the same time 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 consider, reanalyze and re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant 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.”
25. The principles which guide the circumstances 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 And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR 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 court 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
26. The same position was reiterated by the Court of Appeal in the decision cited by learned counsel for the appellant of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] KECA 65 (KLR).
27. In its judgment dated the 13th December 2024, upon analyzing the evidence, the trial court, made a finding that there was no evidence tendered on how the accident occurred and therefore the appellant had not proved his case on a balance of probabilities. It was the trial court’s finding that it was upon the plaintiff to prove the causal link between his injuries and the defendant’s negligence. That the plaintiff had asserted that the defendant reversed and injured him and the investigating officer had alleged that the driver failed to check his rear view mirror but that no one tendered such evidence. That neither PW 2 nor PW 3 witnessed the accident. However, the correct position is that the trial court should have attributed this to PW 1, the investigating officer and PW 3, the appellant’s mother. PW 2 was Dr. Ajoni Adede whose evidence was only on the injuries sustained by the appellant.
28. The trial court seems to have proceeded on the assumption that only eye-witness evidence could prove that the accident occurred and the manner in which it occurred. Whereas eye witness evidence is valuable, it is not the only evidence that can be used to prove fault on the part of a driver of a motor vehicle. Evidence of police investigations as experts in the field and their opinion on what they gather on how the accident occurred is equally important. Often times, eye witness accounts of how an accident occurred vary and police investigations come in to clarify the issues. Equally, evidence of police investigations on reconstruction of the scene depending on the evidence collected will be sufficient to prove a case especially in civil cases where the standard of proof is on a balance of probability.
29. In the present case, it is true as submitted by learned counsel for the respondent that there was no evidence of an eye witness. Not even the minor involved in the accident who was of competent age to testify. I also note from the proceedings that he appeared to have been present in court because when his mother, PW 3 was testifying the trial court noted that indeed his leg had been amputated, meaning the court had opportunity to see the amputation. The investigating officer also said that there were other minors around whose statements he recorded but none of them was called as a witness.
30. The question was whether the evidence of the investigating officer was sufficient to prove that the driver of the lorry was negligent. Learned counsel for the appellant submits that it was.
31. The learned trial magistrate found further that there was no testimony as to whether the driver knew that there were people at the back of the lorry as he reversed so that he could watch out for them. Further that there was no testimony that he drove the vehicle in an unsafe and dangerous manner as set out in the particulars of negligence. The trial court found even though the minor was injured it hard to believe that the driver’s actions were negligent.
32. I note that the evidence of the investigating officer and that of the minor’s mother on what the minor was doing at the scene of the accident at the time differed. The investigating officer said that the minor was among boys who used to load the lorry with sand. On her part, the mother said the minor had gone to the river to take a bath because they usually did that. No doubt, neither of the two was present at the scene.
33. I find the evidence of the investigating officer to be more credible and therefore reliable because she visited the scene and conducted investigations whereas for PW 3 she was using her suppositions since that is what she believed the minor could have been doing at the river at the time. The possibility that he could be there to take a bath and also help in loading the lorry with sand cannot be ruled out.
34. Section 107, 108 and 109 of the Evidence Act places the burden of proof of a particular fact on the person who wishes the court to believe in its existence unless it is proved by law that the proof of the fact shall lie on any particular person.
35. Learned counsel for the respondent submits that the appellant did not satisfy the evidential burden of proof as required under the above sections of the law. He supports his evidence with the case of Evans Mogire Omwansa v Benard Otieno Omolo & another [2016] KEHC 7139 (KLR) where it was held that:
“The provisions of the Evidence Act came to play that he who asserts must prove. It was the appellants duty to tender satisfactory evidence to discharge the burden placed upon him. It is not enough to say that since the opposing part has not testified, my testimony must be taken as truthful. It must be proved. The Respondents in their written submissions stated correctly that though they did not testify there was enough rebutall evidence during cross examination.”
36. The case of Statpack Industries v James Mbithi Munyao [2005] KEHC 2043 (KLR) is also cited for the position that not every injury is necessarily a result of someone’s negligence and an injury per se is not sufficient to hold someone liable for the same.
37. Learned counsel for the respondent submits that there was no evidence from anybody who was at the scene of the accident when it occurred to show that the driver of the vehicle failed to check his rear view mirror as alleged by the investigating officer. Further that there was no evidence to show that the driver knew that there were people at the back of the lorry as he reversed so that he could watch out for them.
38. 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.”
39. 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:
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.
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.
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.”
40. Further, 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.”
41. Considering the above decisions, I find that the trial court’s finding that there was no testimony as to whether the driver knew that there were people at the back of the lorry as he reversed so that he could watch out for them was erroneous. The driver of the vehicle, as a person in charge of a lethal machine was always under a duty of care to ensure that while using the machine, he did not put any other person in danger of being injured by the machine, unless it was shown that such danger was caused or contributed by the other person.
42. In this case, the circumstances of how the accident occurred have to be considered. Those circumstances were given in the pleadings and supported by the evidence of the investigating officer. The accident occurred at what I find from the evidence was a sand quarry and the vehicle was being driven in the reverse when it was involved in the accident.
43. It was upon the driver to ensure that the path behind him was clear before reversing. There is no indication that the driver made any form of warning to alert the people who were around that the vehicle was being reversed. As stated by the investigating officer, the driver also had the use of the vehicle’s side mirror to look behind and see that it was clear before reversing. The failure to do this and end up running over the minor’s leg meant that he was negligent in his actions.
44. The allegations of negligence made against the minor’s mother and next friend as well as against the minor were not substantiated. As for the minor’s mother the same have no basis at all since the minor was said to have been 14 years old at the time. He could by himself appreciate his environment including the presence of the vehicle there.
45. The allegations against the minor were not supported by any evidence, even the driver not having been made available to testify and rebut the evidence of the investigating officer.
46. As stated above, the respondents did not tender any evidence at the trial. The consequences of a party failing to adduce evidence were restated in the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J (as she then was) citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 cited by learned counsel for the respondent where it was held that:
“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”
47. The evidence of the respondent thus remained unchallenged as was held by the Court of Appeal in the case of John Wainaina Kagwe v Hussein Dairy Ltd [2013] eKLR, follows: -
“The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”
48. The appellant having discharged his burden of proof through the evidence of PW 1 that he was to blame for the accident, the evidential burden shifted to the respondents to prove their allegations set out in the defence. I find that by failing to call evidence in rebuttal, that was not done. What remained on record therefore pointed to a driver who was not alert while reversing the vehicle.
49. In the circumstances, I find that in evaluating the evidence, the learned trial magistrate erred by finding that the appellant had not adduced evidence to support his case. The conclusion that the driver was not liable for the accident was not supported by the evidence adduced before the court. The trial court’s finding on liability is therefore set aside and substituted with a finding that from the evidence, the driver was wholly liable for the accident and the owner of the vehicle vicariously liable.
50. The trial court nevertheless, correctly, proceeded to assess damages that would have been awardable to the appellant had it found the case proved. The assessment is not challenged by either of the parties and therefore the same remains.
51. In the result, the appeal is allowed with costs to the appellant.
52. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 17th day of December 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Ngure for the Appellant.
Mboya for the Respondent.
Ummu Court Assistant.