OGEGA NYABUTO SAMUEL VS ALFRED MAKORI ONGUTI AND TOM ONGUTI

The Appellant sought judgment against the Defendants jointly and severally for;

1. General damages
2. Special damages of Kshs.8050/=
3. Costs and incidentals to the suit
4. Interests on a, b, and c above at court rates
5. Any other relief the court may deem fit to grant.

The Appellant’s case was based on the tort of negligence against the Respondents following a road traffic accident that occurred along Kisii-Keroka road on 25/7/2021 involving motor vehicle Reg. KCD 734 E and motor cycle Reg. KMEW 313 X.

The trial Magistrate considered the evidence on record and found that the Appellant had not proved his case on a balance of probabilities and declined to find the Respondents liable for the injuries suffered by the Appellant. The Appellant’s case was therefore dismissed with costs to the 1^st Respondent.

The Appellant was aggrieved by the judgment of the trial court and brought the appeal herein vide the Memorandum of Appeal dated 2^nd June 2023 on the following grounds: -

1. The trial court erred in failing to find that evidence and material medical report established that the plaintiff proved his case on a balance of probability
2. The trial magistrate properly dismissed the Appellant’s claim and failed to apply the principle of Res Ipsa Loqiutor to the Appellant’s claim
3. THAT the Trial Magistrate failed to appreciate the Appellant’s evidence and disregarded his testimony.
4. THAT the trial Magistrate misdirected herself by failing to consider that the evidence in the police abstract had not been rebutted
5. THAT the trial magistrate erred in failing to quantify damages payable
6. THAT the Trial Magistrate was biased against the Appellant
7. THAT the trial magistrate wrote a judgment without proper evaluation of pleadings, submissions, and applicable law and principles of award of damages
8. THAT the trial magistrate considered irrelevant factors and left out relevant factors in arriving at her decision.

The Appellant prayed that the appeal be allowed;

1. that the judgment and decree of the trial magistrate be set aside and/ or reviewed and the court enter judgment in favour of the Appellant as per submissions in the lower court file;
2. That the Respondents suit in the subordinate court be dismissed;
3. That costs of suit in the subordinate court and the appeal be awarded to the Appellant.

This appeal was canvassed by way of written submissions.  

The Appellants counsel ……..

The Respondents submissions dated 4^th January 2025 sought that the appeal be dismissed with costs to the 1^st Respondent for reasons the Appellant failed to prove ownership of the subject motor vehicle.

As regards the issue of liability it was submitted that the Appellant testified in cross examination that he did not have a driving license as he had applied for it but the same had not been issued. It was further submitted that evidence of PW4 was to the effect that the rider was moving from Jogoo area towards Kisii township and while at Daraja he was hit by the motor vehicle upon joining the main road. That PW4 confirmed he was not the I/O and that the police abstract he produced did not contain the circumstances of the accident.

It was therefore submitted that the Appellant who was carrying 2 pillion passengers acted against the law that allowed only one passenger on a motor bike.

The Respondent urged the court to rely on the evidence of DW2 who produced the evidence in the OB as to how the accident occurred when the motor cycle failed to give way and rammed onto the lorry even as driver of the motor vehicle swerved to the extreme right but the Appellant accelerated to his direction and rammed into it.

It was further submitted that the Appellant was the author of his misfortune as he was not qualified to ride a motor cycle and he was carrying excess passengers and failed to give way and thus caused the accident and he had no basis for blaming the Respondent.

The Respondent argued that the doctrine of Res Ipsa loqiutor cannot aid the Appellant’s case as there is no proof of facts which may give rise to the situation where the principle applies and that he failed to prove negligence on the part of the 1^st Respondent.

The Respondent submitted that in the event the court finds that they were to blame for the accident they proposed an award of Kshs. 100,000/= as general damages and Kshs. 7,500/= special damages with costs of the lower court and the appeal to the 1^st Respondent.

ANALYSIS AND DETERMINATION

This being the 1^st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1^st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:

"...this court is not bound necessarily to accept the findings of fact by the  court below. An appeal to this 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..."

Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-

1. Whether the trial court erred in failing to find that evidence and material medical report established that the plaintiff proved his case on a balance of probability
2. Whether the trial magistrate properly dismissed the Appellant’s claim and failed to apply the principle of Res Ipsa Loqiutor to the Appellant’s claim
3. Whether the Trial Magistrate failed to appreciate the Appellant’s evidence and disregarded his testimony.
4. Whether the trial Magistrate misdirected herself by failing to consider that the evidence in the police abstract had not been rebutted
5. Whether the trial magistrate erred in failing to quantify damages payable
6. Whether the Trial Magistrate was biased against the Appellant
7. Whether the trial magistrate wrote a judgment without proper evaluation of pleadings, submissions, and applicable law and principles of award of damages
8. Whether the trial magistrate considered irrelevant factors and left out relevant factors in arriving at her decision.

On Whether the trial court erred in failing to find that evidence and material medical report established that the plaintiff proved his case on a balance of probability it is not in dispute that an accident occurred involving the Appellant’s motor cycle and the motor vehicle Reg. No KCD 734E and that the Appellant was injured as per the medical evidence produced by Dr. Peter Morebu Exh 5(a) and P3 Exh 5(b). PW2 Daniel Nyameino Clinical Officer at Kisii Teaching and Referral Hospital also testified as having attended to the Appellant on25/7/2021 and he produced Statement Notes and Clinic Appointment Exh 2(a) & (b) showing the Appellant was injured on the knee, facial cut wounds, back contusion, injuries to the lower limbs and a mild head injuries leading to loss of consciousness for a few minutes.

For the above injuries the Trial court was enjoined to assess possible general damages even where it thought that the Appellant had not proved his claim to the required standards of a balance of probabilities.

In the case of Lei Masaku v Kalpama Builders Ltd [2014] Eklr it was held that to dismiss a suit and fail to address the issue of damages is a serious indictment on the part of trial court and both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the Appellate Court needs to know the view taken by the court of first instance on the issue of quantum.

In consideration of the submissions of the parties at the trial court and in consideration of the proposals as to quantum of damages, injuries sustained by the Appellant and cited authorities I find that the appropriate quantum of damages would have been Kshs. 400,000/-  for the injuries suffered in the accident.

However, going through the record of the trial court I am unable to fault the findings that the Respondent was not liable for the Appellant’s injuries for reasons that the Appellant who was not licensed to ride a motor cycle was carrying two passengers and while moving from Jogoo toward Kisii Township at Daraja Mbili area he joined the main road without proper look out. While Police Abstract produced by PW4 CPL Paul Mulatia showed that the accident was still under investigations DW2  P. C. Moses Otieno Obado produced OB abstract in which it was booked that the motor cycle was carrying two pillion passengers and that the rider failed to give way and even as the driver of the motor vehicle swerved to the extreme right to avoid the accident the Rider accelerated towards the same direction and there was a collision and the motor vehicle was damaged on the front bumper. The evidence of DW2 corroborated the evidence of DW1 as to how the accident happened placing liability on the rider who was not even authorized to ride for the accident and the Respondent cannot be blamed for injuries he suffered when riding without authority and without due care and attention to other road users.

Based on the above reasons it is my finding that the Appellant’s appeal lacks merit and the same is dismissed. Each party to bear their own costs of the appeal.   

Delivered dated and signed at Kisii this 6^th  day of March, 2025