1. The Appellant filed a suit against the Respondent, in the Magistrate’s court, for injuries he sustained in a road traffic accident on 15th April, 2019. The Appellant claims that he was lawfully walking when the Respondent’s driver negligently and/or recklessly drove motor vehicle registration number KBU 099S lost control, veered off the road, and knocked him down, causing serious injuries.
2. The Appellant claimed that he sustained 2nd, 3rd, and 4th metatarsal bone fractures, chest contusion, and bruises to both hands and face. He sought general damages as assessed by court, special damages at Kes. 7,100/=, interest at court rates, costs of the suit, and any other relief.
3. In it's defense, the Respondent filed a Statement of Defense on 10th March, 2021 denying all the allegations, including being the registered owner of the vehicle registration number KBU 099S. The Respondent argued that if an accident occurred, then the Appellant was wholly or substantially to blame for the incident. The Respondent prayed for the suit to be dismissed with cost.
4. At the end of the trial the learned magistrate found that the Respondent was not liable and dismissed the suit with cost to the Respondent. Aggrieved by the said decision, the Appellant lodged his Memorandum of Appeal dated 14th September, 2022 seeking for the orders that this Appeal be allowed, The judgement of the lower court be set aside and substituted with an order that the Appellant's suit is merited and this Honourable Court proceeds to assess damages payable to the Appellant; and the costs of the Appeal be awarded to the Appellant on the basis of the following grounds;
A. THAT the Learned Trial Magistrate erred in law and in fact in holding that the Appellant had failed to prove that the Respondent was liable for the occurrence of the accident.
B. THAT the Learned Trial Magistrate erred in law and in fact by failing to properly analyze the evidence as had been tendered by the Appellant, which evidence established that the Respondent was liable for the accident.
C. THAT the Learned Trial Magistrate erred in law and in fact by taking into account irrelevant considerations to inter alia that the Appellant had failed to prove how he got the details of the subject motor vehicle when the same was not an issue.
D. THAT the learned trial magistrate misdirected herself both in Law and in Fact by failing to appreciate that the evidence by the Appellant was not rebutted and therefore stood unchallenged and uncontroverted particularly bearing in mind that the Respondent did not call any witness.
E. THAT the decision and Judgement of the learned Trial Magistrate is against the weight of the evidence.
F. THAT the learned trial magistrate erred in law and in fact by failing to critically analyze the evidence availed which evidence established that the Respondent was liable for the accident.
5.To support of the Appeal, the Appellant filed his written submissions dated 25th October, 2023; while in opposition to the Appeal, the Respondent filed their written submissions dated 18thNovember, 2023.
On the issue of liability;
6.The Appellant submitted that he proved his case on a balance of probabilities that the driver of motor vehicle registration No. KBU 099S was to blame for the accident in which he [Appellant] sustained serious injuries. Moreover, that the Appellant was owed a duty of care on the material date of the accident by the Respondent, to which there was a breach of that duty; resulting in the Appellant suffering loss and damage by sustaining serious injuries.
7.Further, that the Respondent was under a duty to offer evidence to rebut or controvert the elements of the Appellant's case which they did not. No evidence was led to disprove that the said motor vehicle did not cause an accident on the material date. It is therefore,the Appellant's case that the Magistrate erred in dismissing the suit.
8.Reliance was placed on the cases of PNM and another (The legal representative of the estate of LMM v Telkom Kenya Ltd and 2 others (2015) eKLR; Nandwa v Kenya Kazi Ltd (1988) KLR 468; Joseph Muthuri V Nicholas Kinoti Kibera (2022) eKLR; and Christine Kalama V Jane Wanja Njeru & Another (2021) eKLR.
9.On its part,the Respondent submitted that the burden of proving the accident was solely caused by the negligence of the driver of the subject motor vehicle lies with the Appellant. That in agreement with the pronouncement of the trial court, it is not upon the Respondent to prove that it was not liable for the occurrence of the accident, but for the Appellant to prove that the Respondent is liable on the balance of probabilities even in cases of uncontroverted evidence which burden the Appellant did not discharge. The cases of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) (2022] KEHC 7 (KLR) (24 January 2022) (Judgment)and Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] eKLR were relied upon.
10.Further, it is the Respondent's case that the police officer who testified in the case at trial court, neither visited the scene of the accident, nor witnessed the accident; thus, his evidence would not be sufficient to impute negligence on the part of the Respondent. The cases of Kennedy Nyangoya vs. Bash Hauliers (2016) and Pesa Hamisi v P.N. Mashru [2020] eKLR were relied on.
11.The Respondents also argue that the Appellant did not avail any eye witness to give an account of the circumstances that led to the occurrence of the accident, thus the court could not make decisions based on assumptions. The case of EWO (suing as the next friend of a minor (OW) Vs Chairman Board of Governors Agoro Yombe Secondary School (2018) eKLR was cited. In the end, the Respondent beseeched this court to dismiss the instant appeal for lack of merit and costs be on them.
12.The parties did not submit on quantum in this Appeal.
Analysis and Determination
13.This being a first Appeal, the court is enjoined to analyze and re-assess the evidence afresh and reach its own conclusions but always bearing in mind that it neither saw nor heard the witnesses testify. This position was affirmed in Selle v Associated Motor Boat Co. [1968] EA 123 and Kiruga v Kiruga & Another [1988] KLR 348 cases.
14.A finding on liability is dependent on the facts and evidence available and in assessing liability, the court considers causation and blameworthiness(see Isabella Wanjiru Karanja v Washington Malele [1983] eKLR).
15.In the instant case, the Appellant blamed the Respondent’s driver for the accident. However, the evidence suggests that the he was hit from behind as a result of which he could not see the accident.
16.The police officer who testified as PW1 was not helpful as he was not the investigating officer as a result of which he lacked the firsthand knowledge about the accident's circumstances, and lacked the knowledge about whether it was a hit and run accident or not. and how the supposed vehicle was traced.
17.From the evidence, an accident may have occurred on the alleged date, but there is absence of evidence on the causation and blameworthiness of the Respondent. To my mind, the circumstances of the accident have not been well explained. The Appellant did not prove that the Respondent was negligent.
18.I have considered the pleadings, the evidence produced and the testimonies of the witnesses and from my analysis of the same, there is no evidence tendered that it is Respondent’s driver that was to blame for the accident and I so hold.
Disposition:
19.The trial magistrates court thus came to the correct finding that the Appellant did not prove that it was the Respondent’s driver who was liable for the accident and that this was based on the evidence on record. To that end, the Appeal by the Appellants fails.
Order:
A. The Appeal is dismissed for lack of merit.
B. Cost to the Respondent.
2. The Appellant claimed that he sustained 2nd, 3rd, and 4th metatarsal bone fractures, chest contusion, and bruises to both hands and face. He sought general damages as assessed by court, special damages at Kes. 7,100/=, interest at court rates, costs of the suit, and any other relief.
3. In it's defense, the Respondent filed a Statement of Defense on 10th March, 2021 denying all the allegations, including being the registered owner of the vehicle registration number KBU 099S. The Respondent argued that if an accident occurred, then the Appellant was wholly or substantially to blame for the incident. The Respondent prayed for the suit to be dismissed with cost.
4. At the end of the trial the learned magistrate found that the Respondent was not liable and dismissed the suit with cost to the Respondent. Aggrieved by the said decision, the Appellant lodged his Memorandum of Appeal dated 14th September, 2022 seeking for the orders that this Appeal be allowed, The judgement of the lower court be set aside and substituted with an order that the Appellant's suit is merited and this Honourable Court proceeds to assess damages payable to the Appellant; and the costs of the Appeal be awarded to the Appellant on the basis of the following grounds;
A. THAT the Learned Trial Magistrate erred in law and in fact in holding that the Appellant had failed to prove that the Respondent was liable for the occurrence of the accident.
B. THAT the Learned Trial Magistrate erred in law and in fact by failing to properly analyze the evidence as had been tendered by the Appellant, which evidence established that the Respondent was liable for the accident.
C. THAT the Learned Trial Magistrate erred in law and in fact by taking into account irrelevant considerations to inter alia that the Appellant had failed to prove how he got the details of the subject motor vehicle when the same was not an issue.
D. THAT the learned trial magistrate misdirected herself both in Law and in Fact by failing to appreciate that the evidence by the Appellant was not rebutted and therefore stood unchallenged and uncontroverted particularly bearing in mind that the Respondent did not call any witness.
E. THAT the decision and Judgement of the learned Trial Magistrate is against the weight of the evidence.
F. THAT the learned trial magistrate erred in law and in fact by failing to critically analyze the evidence availed which evidence established that the Respondent was liable for the accident.
5.To support of the Appeal, the Appellant filed his written submissions dated 25th October, 2023; while in opposition to the Appeal, the Respondent filed their written submissions dated 18thNovember, 2023.
On the issue of liability;
6.The Appellant submitted that he proved his case on a balance of probabilities that the driver of motor vehicle registration No. KBU 099S was to blame for the accident in which he [Appellant] sustained serious injuries. Moreover, that the Appellant was owed a duty of care on the material date of the accident by the Respondent, to which there was a breach of that duty; resulting in the Appellant suffering loss and damage by sustaining serious injuries.
7.Further, that the Respondent was under a duty to offer evidence to rebut or controvert the elements of the Appellant's case which they did not. No evidence was led to disprove that the said motor vehicle did not cause an accident on the material date. It is therefore,the Appellant's case that the Magistrate erred in dismissing the suit.
8.Reliance was placed on the cases of PNM and another (The legal representative of the estate of LMM v Telkom Kenya Ltd and 2 others (2015) eKLR; Nandwa v Kenya Kazi Ltd (1988) KLR 468; Joseph Muthuri V Nicholas Kinoti Kibera (2022) eKLR; and Christine Kalama V Jane Wanja Njeru & Another (2021) eKLR.
9.On its part,the Respondent submitted that the burden of proving the accident was solely caused by the negligence of the driver of the subject motor vehicle lies with the Appellant. That in agreement with the pronouncement of the trial court, it is not upon the Respondent to prove that it was not liable for the occurrence of the accident, but for the Appellant to prove that the Respondent is liable on the balance of probabilities even in cases of uncontroverted evidence which burden the Appellant did not discharge. The cases of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) (2022] KEHC 7 (KLR) (24 January 2022) (Judgment)and Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] eKLR were relied upon.
10.Further, it is the Respondent's case that the police officer who testified in the case at trial court, neither visited the scene of the accident, nor witnessed the accident; thus, his evidence would not be sufficient to impute negligence on the part of the Respondent. The cases of Kennedy Nyangoya vs. Bash Hauliers (2016) and Pesa Hamisi v P.N. Mashru [2020] eKLR were relied on.
11.The Respondents also argue that the Appellant did not avail any eye witness to give an account of the circumstances that led to the occurrence of the accident, thus the court could not make decisions based on assumptions. The case of EWO (suing as the next friend of a minor (OW) Vs Chairman Board of Governors Agoro Yombe Secondary School (2018) eKLR was cited. In the end, the Respondent beseeched this court to dismiss the instant appeal for lack of merit and costs be on them.
12.The parties did not submit on quantum in this Appeal.
Analysis and Determination
13.This being a first Appeal, the court is enjoined to analyze and re-assess the evidence afresh and reach its own conclusions but always bearing in mind that it neither saw nor heard the witnesses testify. This position was affirmed in Selle v Associated Motor Boat Co. [1968] EA 123 and Kiruga v Kiruga & Another [1988] KLR 348 cases.
14.A finding on liability is dependent on the facts and evidence available and in assessing liability, the court considers causation and blameworthiness(see Isabella Wanjiru Karanja v Washington Malele [1983] eKLR).
15.In the instant case, the Appellant blamed the Respondent’s driver for the accident. However, the evidence suggests that the he was hit from behind as a result of which he could not see the accident.
16.The police officer who testified as PW1 was not helpful as he was not the investigating officer as a result of which he lacked the firsthand knowledge about the accident's circumstances, and lacked the knowledge about whether it was a hit and run accident or not. and how the supposed vehicle was traced.
17.From the evidence, an accident may have occurred on the alleged date, but there is absence of evidence on the causation and blameworthiness of the Respondent. To my mind, the circumstances of the accident have not been well explained. The Appellant did not prove that the Respondent was negligent.
18.I have considered the pleadings, the evidence produced and the testimonies of the witnesses and from my analysis of the same, there is no evidence tendered that it is Respondent’s driver that was to blame for the accident and I so hold.
Disposition:
19.The trial magistrates court thus came to the correct finding that the Appellant did not prove that it was the Respondent’s driver who was liable for the accident and that this was based on the evidence on record. To that end, the Appeal by the Appellants fails.
Order:
A. The Appeal is dismissed for lack of merit.
B. Cost to the Respondent.