' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
HIGH COURT CIVIL APPEAL NO. 29 OF 2023
MARK BARASA SIMIYU ............................................................................... APPEALLANT
VERSUS
GEOFREY TARAGON ............................................................................ 1 ST RESPONDENT
FATUMA ABDI ALI HIRSI ………………………………….….……………. 2 ND RESPONDENT
MARCIAH CHEROTICH BUTAKI ……………………………..……………. 3 RD RESPONDENT
JUDGMENT
The only issue for determination in this appeal is whether the trial court as the trier of fruits erred, whether in law or in fact, when it detained in its judgment dated 24 th April 2023, that the Respondents were to be liability to the extent of 50% only.
The court said: -
“PW1 who was an independent witness to whom the court was relying on for more insight and light in coming up with an informed decision on who was to blame for causing the accident was of very little assistance. She did not visit the scene on the day of the accident, did not produce any sketch plan in court, was not involved in the investigations and was not privy to the circumstances that led to the accident. From the contradictory statements by the Plaintiff and 3 rd Defendant this court is unable to make a firm conclusion as to who between the rider of the motor cycle and the 3 rd Defendant was to blame for the accident. Upon assessment and evaluation of the evidence on record, this court finds that the 3 rd Defendant must equally share the responsibility of causing the accident with the rider of the motor cycle. This is because there is no clear evidence on who caused the accident. See HUSSEIN OMAR FARAH –VS- LENTO AGENCIES [2006] EKLR. In that respect this court finds that the Defendants are only 50% liable to compensate the Plaintiff for the injuries he sustained as a result of the accident.
It is that holding that the has aggrieved the Appellant and provoked this appeal through the eight (8) grounds of appeal enumerated in the memorandum of appeal dated 19 th May 2023.
Even when so escalated into the eight grounds, a holistic reading of the grounds boils down to one ground; that the trial court ran into an error in his assessment of the evidence by not finding the Respondent wholly blameworthy. In that scheme of things, the Appellant blames the court for having apportioned liability to a third party not party before the court.
Whether or not a third party to the suit was found blameworthy ought not to be in issue if the judgment is plainly read. This court reads the judgment to have gone straight to the point of whether and to what extend the Respondent caused the accident. There is no apportionment to any other party. The court merely found the Respondent liable to the extent of 50% only. This court finds no merit in ground 2 of the memorandum which is the only ground separable from the rest.
On the gravamen of the appeal, it needs no gainsaying that court disputes are determined on the facts presented as evidence as applied to the law. Before the trial court was a claim based on the tort of negligence whose particulars were clearly set out by the Appellant in his plaint at paragraphs 7 and 8. The short of the lengthy paragraphs 7 and 8 is that the Defendants motor vehicle was driven careless and without proper outlook, into a main road from a feeder road, lost control, veered off the road and rammed into the motor cycle on which the Appellant was a pillion passenger. That was the pleading the Appellant had laid for himself for proof by evidence.
When he took to the witness box, to prove that case he laid by himself, he blamed the motor vehicle for knocking the motorcycle and occasioning to him the particularized injuries. His evidence was that the collision occurred on a straight stretch of a highway with heavy traffic and that the motor cycle was on its lane. That evidence does not support the evidence in the witness statement which is word for word with the pleadings at paragraph 7 of the Plaintiffs that the motor vehicle crossed the highway, lost control and veered off the road before the collision. Pleading and the evidence in the witness statement point irresistibly to a collision occurring off the road and that it was the motor vehicle that rammed into/knocked the motor vehicle.
To add to the contradiction, the witness said in cross-examination, that it was the motor cycle that knocked the motor vehicle on its side near the side mirror. The court appreciates the evidence to be that the motorcycle with two pillion passengers was on its right path and lane when it was knocked. That would mean that the collision was on the road and not off it as pleaded. In addition, the evidence that the motorcycle rammed onto the side of the motor vehicle also displaces the pleading that it was the motor vehicle which hit the motorcycle. The court find the evidence let to have sought to prove facts different from those pleaded.
In law a party is bound by his pleadings and cannot set out to prove what was never pleaded. Because in adversarial system of litigation, the parties must be left to set the dispute for determination by the court, in a fair, transparent, and just fashion, devoid of ambush, even the court is bound by the pleadings filed. See the decision of the Court of Appeal in Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLR where the Court agreed and quoted with approval the holding of the Supreme Court of Malawi, in Malawi Railways Ltd vs. Nyasulu [1998] MWSC 3,
“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice...
In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”
Just from clarity, it is important to reproduce the portion of the evidence by the appellant when he is recorded to have said: -
“The road is a highway with a lot of a traffic. There are bumps along the road. Emmanuel Simiyu was the one riding the motor cycle. The motor vehicle was the one which knocked the motor cycle. We were on our lane. I have not been shown any sketch map. The motor cycle knocked the vehicle near the side mirror. I have not seen any inspection report. I don’t know if the vehicle had any insurance. I have not been shown anything to indicate that motor vehicle lost control. The driver of the motor vehicle was not overtaking. I don’t know if the rider of the motor cycle has a road license.”
Being a first Appellate court, whose duty is to reappraise and re-evaluate the evidence at trial afresh with a view to making own conclusions, the court finds that the Appellant did not prove the case he pleaded.
That is what the trial court struggled with in its renditions on the issue on liability. However, in coming to that conclusion it failed to take into account the principle of law that a party is bond by his pleadings. He concluded that there was indeed a collusion which was not clearly proved. Had the court correctly applied the law that fair hearing demanded that a party stick to its pleadings which the opposite party has prepared to confront, and the evidence led, the court ought not to have found for the Appellant as it did. The court ought to have dismissed the clan because the evidence led did not prove the pleading filed.
Accordingly, the court finds that the trial court erred in finding for the appellant against the Respondent at 50%. The court thus sets aside that finding and, in its place, substitutes a finding that the Appellants case was not proved on a balance of probabilities and ought to have been dismissed. The finding on liability against the Respondent is set aside, and in its place substituted a finding that the suit before the trial court is dismissed with costs.
This appeal thus lacks warrants and is equally dismissed with costs.
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IN THE HIGH COURT OF KENYA AT KITALE
HIGH COURT CIVIL APPEAL NO. 29 OF 2023
MARK BARASA SIMIYU ............................................................................... APPEALLANT
VERSUS
GEOFREY TARAGON ............................................................................ 1 ST RESPONDENT
FATUMA ABDI ALI HIRSI ………………………………….….……………. 2 ND RESPONDENT
MARCIAH CHEROTICH BUTAKI ……………………………..……………. 3 RD RESPONDENT
JUDGMENT
The only issue for determination in this appeal is whether the trial court as the trier of fruits erred, whether in law or in fact, when it detained in its judgment dated 24 th April 2023, that the Respondents were to be liability to the extent of 50% only.
The court said: -
“PW1 who was an independent witness to whom the court was relying on for more insight and light in coming up with an informed decision on who was to blame for causing the accident was of very little assistance. She did not visit the scene on the day of the accident, did not produce any sketch plan in court, was not involved in the investigations and was not privy to the circumstances that led to the accident. From the contradictory statements by the Plaintiff and 3 rd Defendant this court is unable to make a firm conclusion as to who between the rider of the motor cycle and the 3 rd Defendant was to blame for the accident. Upon assessment and evaluation of the evidence on record, this court finds that the 3 rd Defendant must equally share the responsibility of causing the accident with the rider of the motor cycle. This is because there is no clear evidence on who caused the accident. See HUSSEIN OMAR FARAH –VS- LENTO AGENCIES [2006] EKLR. In that respect this court finds that the Defendants are only 50% liable to compensate the Plaintiff for the injuries he sustained as a result of the accident.
It is that holding that the has aggrieved the Appellant and provoked this appeal through the eight (8) grounds of appeal enumerated in the memorandum of appeal dated 19 th May 2023.
Even when so escalated into the eight grounds, a holistic reading of the grounds boils down to one ground; that the trial court ran into an error in his assessment of the evidence by not finding the Respondent wholly blameworthy. In that scheme of things, the Appellant blames the court for having apportioned liability to a third party not party before the court.
Whether or not a third party to the suit was found blameworthy ought not to be in issue if the judgment is plainly read. This court reads the judgment to have gone straight to the point of whether and to what extend the Respondent caused the accident. There is no apportionment to any other party. The court merely found the Respondent liable to the extent of 50% only. This court finds no merit in ground 2 of the memorandum which is the only ground separable from the rest.
On the gravamen of the appeal, it needs no gainsaying that court disputes are determined on the facts presented as evidence as applied to the law. Before the trial court was a claim based on the tort of negligence whose particulars were clearly set out by the Appellant in his plaint at paragraphs 7 and 8. The short of the lengthy paragraphs 7 and 8 is that the Defendants motor vehicle was driven careless and without proper outlook, into a main road from a feeder road, lost control, veered off the road and rammed into the motor cycle on which the Appellant was a pillion passenger. That was the pleading the Appellant had laid for himself for proof by evidence.
When he took to the witness box, to prove that case he laid by himself, he blamed the motor vehicle for knocking the motorcycle and occasioning to him the particularized injuries. His evidence was that the collision occurred on a straight stretch of a highway with heavy traffic and that the motor cycle was on its lane. That evidence does not support the evidence in the witness statement which is word for word with the pleadings at paragraph 7 of the Plaintiffs that the motor vehicle crossed the highway, lost control and veered off the road before the collision. Pleading and the evidence in the witness statement point irresistibly to a collision occurring off the road and that it was the motor vehicle that rammed into/knocked the motor vehicle.
To add to the contradiction, the witness said in cross-examination, that it was the motor cycle that knocked the motor vehicle on its side near the side mirror. The court appreciates the evidence to be that the motorcycle with two pillion passengers was on its right path and lane when it was knocked. That would mean that the collision was on the road and not off it as pleaded. In addition, the evidence that the motorcycle rammed onto the side of the motor vehicle also displaces the pleading that it was the motor vehicle which hit the motorcycle. The court find the evidence let to have sought to prove facts different from those pleaded.
In law a party is bound by his pleadings and cannot set out to prove what was never pleaded. Because in adversarial system of litigation, the parties must be left to set the dispute for determination by the court, in a fair, transparent, and just fashion, devoid of ambush, even the court is bound by the pleadings filed. See the decision of the Court of Appeal in Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLR where the Court agreed and quoted with approval the holding of the Supreme Court of Malawi, in Malawi Railways Ltd vs. Nyasulu [1998] MWSC 3,
“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice...
In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”
Just from clarity, it is important to reproduce the portion of the evidence by the appellant when he is recorded to have said: -
“The road is a highway with a lot of a traffic. There are bumps along the road. Emmanuel Simiyu was the one riding the motor cycle. The motor vehicle was the one which knocked the motor cycle. We were on our lane. I have not been shown any sketch map. The motor cycle knocked the vehicle near the side mirror. I have not seen any inspection report. I don’t know if the vehicle had any insurance. I have not been shown anything to indicate that motor vehicle lost control. The driver of the motor vehicle was not overtaking. I don’t know if the rider of the motor cycle has a road license.”
Being a first Appellate court, whose duty is to reappraise and re-evaluate the evidence at trial afresh with a view to making own conclusions, the court finds that the Appellant did not prove the case he pleaded.
That is what the trial court struggled with in its renditions on the issue on liability. However, in coming to that conclusion it failed to take into account the principle of law that a party is bond by his pleadings. He concluded that there was indeed a collusion which was not clearly proved. Had the court correctly applied the law that fair hearing demanded that a party stick to its pleadings which the opposite party has prepared to confront, and the evidence led, the court ought not to have found for the Appellant as it did. The court ought to have dismissed the clan because the evidence led did not prove the pleading filed.
Accordingly, the court finds that the trial court erred in finding for the appellant against the Respondent at 50%. The court thus sets aside that finding and, in its place, substitutes a finding that the Appellants case was not proved on a balance of probabilities and ought to have been dismissed. The finding on liability against the Respondent is set aside, and in its place substituted a finding that the suit before the trial court is dismissed with costs.
This appeal thus lacks warrants and is equally dismissed with costs.
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