(Being an appeal arising from the judgement of Hon. Margaret Wambani Onditi (CM) in Siaya CMCC No. 6 of 2020 delivered on 13/2/2025)
1. The appeal herein arises from the judgment of Hon. Margaret Wambani Onditi, Chief Magistrate dated 13/2/2025 in Siaya CMCC No. 6 of 2020 wherein she held the Appellants 90% liable for the accident while the Respondent shoulders 10% contributory negligence and proceeded to award the Respondent Kshs 2,060,000 for loss on dependency as well as costs of the suit.
2. The Appellants were aggrieved and duly filed a Memorandum of Appeal dated 27 th February 2025 wherein they raised the following grounds of appeal namely; -
i) The learned trial Magistrate erred in law and in fact in deciding that the Appellants were 90 % liable in negligence without setting out the evidence, without analyzing the evidence, without making any findings on the facts, and without giving any reason for her decision contrary to Order 21 Rule 4 Civil Procedure Rules.
ii) The learned trial Magistrate in law and in fact in finding the Appellant liable in negligence at 90% without any evidence of, or any findings on, any such alleged negligence.
iii) The learned trial Magistrate erred in law and in fact in failing to find that the Respondent, in order to succeed, was required to prove the Appellants’ pleaded alleged negligence and to hold that indeed no such alleged negligence had been proved.
iv) The learned trial Magistrate erred in law and in fact in failing to consider the evidence of DW-1 which tended to show that the Appellants were not negligent.
v) The learned trial Magistrate erred in law and in fact in finding that the Appellants were 90% liable in negligence without assigning any reason for the said apportionment and when there was no evidence at all of the Appellants' negligence.
vi) The learned trial Magistrate erred in law and in fact in failing to find that neither the pleaded negligence nor the pleaded particulars thereof had been proved by any evidence.
vii) The learned trial Magistrate erred in law and in fact in failing to analyze the evidence as a whole and apportion liability between the Appellant and the Respondent as was appropriate.
viii) The learned trial Magistrate's decision that the Appellant was 90% liable is unsupported on the law and the facts.
ix) The learned trial Magistrate erred in law and in fact in failing to consider carefully the Appellant's submissions and the authorities cited therein.
x) The learned trial Magistrate erred in law and in fact in assessing and applying an income of Kshs 15,000.00 without any finding on any such income, the deceased's occupation, the earnings or expected earnings, contrary and without giving any reasons for such finding contrary to Order 21 Rule 4 Civil Procedure Rules.
xi) The learned trial Magistrate erred in law in failing to find and apply the income applicable which was that of a general worker in "All other areas" at Kshs. 7,240.95, according to the Regulation of Wages (General) (Amendment) Order 2018, applicable in December 2019 when the deceased died.
xii) The award for loss of dependency is inordinately high, unreasonable and unjustified as the multiplicand used was not based on any fact or law, was applied whimsically, and capriciously and without any proper exercise of the Court's discretion.
xiii) The learned trial Magistrate awarded damages for loss of dependency without any regard to the principles applicable to the award of such damages as established by law and precedents.
Reasons wherefore, the Appellants pray that the Appeal be allowed and for orders that: -
a) The judgment apportioning liability against the Appellant at 90% be set aside, and the Respondent's suit in the lower court be ordered dismissed.
b) Alternatively, the judgment on liability varied and be replaced with a suitable judgment.
c) The award for loss of dependency be set aside and/or be varied with a suitable award as the justice of the matter requires.
d) The Appellant be awarded the costs of this appeal and of the trial Court.
This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial Court and subject it to an independent analysis and arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See Selle vs Associated Motor Boat Co. Ltd (1968) EA 123 .
In Simon Taveta v Mercy Mutitu Njeru KECA 755 (KLR) , the Court of Appeal put it this way: -
"As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co. EA 123 , thus:
"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 vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)" .
This court further stated in Jabane -vs- Olenja KLR 661 :
3. "More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial judge who had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did - see in particular Ephantus wangi -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni vs. Kenya Bus Services (1982-88) 1 KAR 870. "
4. The Respondent had lodged suit vide a plaint dated 28 th January 2020 wherein she pleaded that the deceased was her son who was hit by the Appellants motor vehicle registration No. KCE 548W Nissan X Trail causing him fatal injuries and prayed for general damages under the Law Reform Act and Fatal Accident Act. That the Respondent also pleaded particulars of negligence on the part of the Appellants. The Appellants filed a defence dated 3 rd March 2019 wherein they denied the particulars of negligence attributed to them and maintained that the deceased was solely to blame for the accident and duly pleaded particulars of negligence against him and further sought for dismissal of the suit with costs.
5. The trial commenced in earnest on 28/11/2021.
6. Sarah Akinyi Wamboga (PW1) in her evidence testified inter alia; that the deceased was her elder son; that the deceased died on the 24/12/2019 and who was survived by two wives and four children; that the deceased’s wives left their matrimonial homes. She adopted her witness statement dated 28/1/2020 as her evidence in chief. She produced documents in her list of documents and maintained that the deceased was a full mechanic and a driver who earned Kshs 30,000/ per month. That she is the sole bread winner for the deceased’s children.
On cross examination, she stated inter alia; that the deceased died the same day at the age of 29 years old; that she did not witness the accident; that she found the victim in hospital; that the deceased’s wives left after the death of their husband and she could not know their whereabouts; that one of the children Kelly Ryan was born in 2019 and was still a toddler when the mother took off; that the birth certificates and school reports for the children were at home; that the chief is aware of the existence of the children; that the deceased was riding his own motorcycle when he was hit; that she did not have the riding licence for the deceased; that the decased was ferrying passengers using his motorcycle as a transport business; that the deceased was someone else’s employee; that the deceased’s employer had not given her the letter of employment showing that he earned Kshs 30,000/ per month but that the decased had orally informed her that he used to earn that much; that the deceased’s wives ran away with his documents and left her with the children.
7. No. 84390 Cpl Edson Otieno (PW2) testified inter alia; that the accident herein was recorded at Yala Police Station vide OB. No. 16 of 24/12/2019. He was empathic that the accident occurred on the 24/12/2019 at about 1600hrs at Muhoho area along Busia – Kisumu road. That the accident involved motor vehicle registration No. KCE 548W make Nissan X-trail which was being driven by Okeyo of P.O. Box 520 Yala and motor cycle Registration No. KMEW 350G make Boxer which was being ridden by Jared Daniel Owegi who succumbed to the injuries. That the registered owner of the accident motor vehicle was Joram Okeyo Guya and that the said vehicle was insured by Kenya Orient Insurance Company Limited. He produced the accident abstract as exhibit 3.
On cross examination, he testified inter alia; that the investigating officer in the traffic case was Corporal Koech who was transferred to Turbo Police Station and that his police statement, the sketch plan and his findings are contained in the police file. That the matter is still under investigations and that no one has been charged. That at paragraph 10 of the police abstract, both Corporal Koech and police constable Mutisya were indicated as the witnesses. That he was aware of the circumstances of the case and that the accident indeed happened and it was reported at their police station.
Both parties later agreed by consent to produce the birth certificates of the deceased’s children as exhibit 5. The Respondent therefore closed her case.
8. Brian Sam Okeyo (DW1) testified and adopted his statement dated 26/11/2021 and filed in Court on the 6/12/2021 as his evidence in chief. It was his evidence that he reported this accident to the police and he was issued with a police abstract dated 2/1/2020 which he produced as D Exhibit 1. He further produced his valid driving licence as D Exhibit 2 and a copy of certificate of examination and test dated the 27/2/2019 for motor vehicle registration No. KEC 548W as D exhibit 3. On cross-examination, he stated that the accident did take place and that he ahs no objection if the deceased’s family is compensated.
9. The Appellants closed their case.
10. The learned trial magistrate later considered the evidence and came up with the impugned judgment.
11. The appeal was canvassed by way of written submissions.
12. The Appellant’s counsel first pointed out the fact that the appeal is mainly on the finding on liability and the multiplicand of Kshs 15,000/ leading to the award on loss of dependency. That in her Plaint (at page 5-7 of the record) the Respondent being the legal representative of the estate of the deceased Daniel Jared Owegi, sued the Appellants for damages. She pleaded that on 24.12.2019, the deceased was lawfully riding his motor cycle along the Busia- Kisumu Road, and at Muhoho area, was knocked and fatally injured by motor vehicle KCE 548W, which was being driven negligently. She pleaded that the motor vehicle "lost control and came into a collision with the deceased". That several particulars of negligence were set out against the driver of motor vehicle KCE 548W, the 1st Appellant, among them that he allowed the motor vehicle to veer into the wrong side of the road, allowing the motor vehicle to so to the deceased side, driving at a excessive speed, failing to adhere to the safety of other road users especially the deceased, failing to hoot, brake, stop or swerve to avoid the accident, driving in total disregard of the road, and driving defective vehicles. That the Appellants, in an elaborate defence at page 11-13 of the record, denied all the allegations and particulars of negligence, and pleaded further that the accident was caused by the deceased's own negligence. The Appellant’s counsel did present a summary of the Respondent’s case but went ahead to concentrate on the Appellants’ evidence through DW1 which was that as he drove motor vehicle KCE 540W, towards Yala from Muhoho along the Kisumu- Busia Road, he saw a motor cycle coming from his rear at high speed. That there was an oncoming motor vehicle, a lorry. That the motor cycle at his rear then, without heeding the oncoming lorry, started to overtake DW1's vehicle on the right side. That at that juncture, the oncoming lorry was too near, and the motor cycle, to escape a collision with the lorry, swerved back to the left and ended up ramming into DW1's front driver' door, with the resultant impact throwing him off the road. That DW1 stopped his vehicle and took the injured motorcyclist to Yala Hospital, then went and reported the matter to the police. He blamed the motorcycle rider for riding at a high speed and overtaking without any care or regard to the road users. That DW-1 produced a police abstract (Exhibit D1) and Driving license (Exhibit D2) and a certificate of test and examination of his motor vehicle Exhibit D3. The certificate of examination (Exhibit D3, at page 57 of the record) showed the accident damage was on the onside (drivers) front window glass and front door, as stated by DW-1. The motor vehicle had no pre-accident defects. In cross examination, he was not asked any useful question in regard to the causation of the accident.
13. On liability, learned counsel reproduced the court’s finding: "considered the plaintiffs apparent evidence on record and the court is duly satisfied that the plaintiff has established her case on a balance of probabilities against the defendants jointly and eventually to the effect that the defendants are substantially to blame for the road traffic accident and hence should be held 90% liable. The plaintiff will hence fore bear 10% contribution....regarding the multiplicand/income of the deceased that a "monthly income of kshs. 15,000/= as suggested by the plaintiffs is fair, reasonable and just sum in the circumstances of the case"
14. Learned counsel submitted that the parties had in their submissions indicated that a multiplier of 20 and a dependency ratio of 2/3 was mutually acceptable by the parties, and that the Court did not thus err in applying the multiplier of the dependency ratio as proposed.
15. The Appellants counsel urged this court to examine and re-evaluate the evidence, and not to differ from the finding and interfere only when the finding of fact that is challenged on appeal is based on no evidence, or on a misapprehension of the evidence, or the trial magistrate is shown demonstrably to have acted on wrong principles in reaching the finding he did. That the Appellants, in ground 1 to 10 of the memorandum of appeal, complain that the trial court's judgment on liability was wrong. That there was no reason given for the finding that the appellants were 90% to blame. That the court simply stated that it had "considered the plaintiff's apparent evidence on record." This apparent evidence was not specified. That the trial Magistrate's error then was to find the Appellant liable at 90% without any regard to Order 21 Rule 4 of the Civil Procedure Rules. There was no consideration of the evidence by the Court. That the Court did not give any reasons for the finding that the Appellant was 90% to blame, and the Respondent 10%. That it is not clear why the court concluded that the Appellants were liable at 90% or at all. There was no consideration of the Appellants' driver's evidence, vis a vis that of the Respondent, and why the Court preferred the evidence of the Respondent and not that of the Appellants' driver.
16. The court was urged to consider the provisions of Order 21 Rule 4 Civil Procedure Rules which is as follows:
"Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."
17. It was contended that the operative word in this provision is SHALL. It was the view of the Appellants that the said rule requires that a judgment must contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision, failing which it would be a defective judgment. A Court of law must give reasons for its determination in all cases. This was not done in this case. The decision thus lacks legality and must be set aside for offending Order 21 Rule 4 as set out above. That Order 21 Rule 4 gives no room for discretion or choice. The judicial officer must give reasons for their decision. Courts are courts of law and as such they are supposed to follow the law. The law as to drafting and preparing of judgments is very clear and specific as to its containing the reasons for the conclusions and determination reached by the judicial officer. It presupposes that in every judgment reasons must be given as to why that decision has been reached by the judicial officer. Where it is found that there were no reasons given as to why the decision made by the judicial officer was reached, then that decision must be re-looked into. The decision/judgment thus violated this cardinal rule of the Civil Procedure Rules, 2010 warranting an interference by this Honourable Court.
18. Reliance was placed in the cases of Kiarie Wamutu v Mungai Kiarie & Another [1982]eKLR , the Court of Appeal was considering an appeal where the trial judge, a zealot of brevity according to the appellate court, on an application by the defendants under 0rder VI rule 13 of the Civil Procedure Rules for the plaint to be struck out and the suit dismissed, made the following order:- "Application granted with costs to the defendants. Leave to appeal refused." The Court of Appeal, on appeal against this order, said:
"The judge also failed to observe the provisions of Order XX rule 4 which states that judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."
In another Court of Appeal decision in Godfrey Gatere Kamau v Peter Mwangi Njuguna eKLR NYERI CoA Civil Appeal 139 of 2003 , the High Court had made a decision without giving any reasons. The Court of Appeal set it aside and said as follows:
" Having done so, we consider that the only order in this appeal is the one of 26th March 2003, which order does not have any reasons for it as required by Order XX R 4 , which provides:-
"Judgments in defended suits shall contain a concise statement of the case, the points for determination thereof and the reasons for such ".
And Order XX Rule 5 of the Civil Procedure Rules provides that:
"In suits in which issues have been framed, the court shall state its findings or decision, with the reasons therefore, upon each separate issue".
This court had occasion to deal with this point in several cases in the past, one such case being, Wamutu Vs Kiarie(1982) KLR 480 , where it was held inter alia:
"Judgments in defended suits shall contain a concise statement of the case points of determination, the decision thereon and reasons for such a decision as required by Order XX Rule 4 of the Civil Procedure Rule."
Again in Civil Appeal No. 179 of 1997 J.P. Machira t/a Machira & Co. Advocates vs Wangethi Mwangi & Another (Unreported), which was a majority decision, Akiwumi, JA said,
"I think that as is required by Order XX rule 4 of the Civil Procedure Rules in respect of judgments, a ruling in an application which is opposed such as the one made by the Appellant and opposed by the Respondents, must be self-contained and should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. This, I fear he did not endeavour to do. He therefore exercised his discretion improperly".
In the result, we allow the appeal on all four grounds; set aside the order allowing the Notice of Motion application dated 30th January, 2002, and substitute therefor an order dismissing the said Notice of Motion. We order that the suit be heard on its merits."
In Francis Barasa Lurare & another v Denis Nyongesa Maloba CoA Civil Appeal No. 163 OF 2018, the High Court Judge in a succession matter did not comply with Order 21 Rule 4 while making her decision as she did not set out the points for determination and nor give reasons for her determination. On appeal to the Court of Appeal, the Court of Appeal held that the judgment did not meet the threshold for drafting of a Judgment enshrined in Order 21, Rule 4 of the Civil Procedure Rules and was therefore sustainable on its merit. It thus set aside the judgment and remitted the case for retrial by the High Court. In the course of its decision, the Court Of Appeal held after setting out Order 21 Rule 4, of the Civil Procedure Rules:-
"The above position was reiterated by the court in the case of Wamitu vs. Kiarie (1982) KLR 481 , wherein the court held inter alia that:
"in defended suits, the Judgment shall contain a concise statement of the case, points of determination, the decision thereon and the reason for such a decision as required by Order XX, rule 4 of the CPR (as it was then cited) and now Order 21 rule 4."
We have revisited and construed the above provision on our own, in light of the restatement of the principle enshrined therein as enunciated in the Wamitu case and applied it to the rival position herein. Our findings thereon is that since the succession proceedings filed by the appellants were defended by the respondent, the learned trial Judge was enjoined to ensure that in the concise statement of the case both the rival pleadings and the evidence in support thereto were addressed. From the record as appraised by us, the case for the appellants was simply that the deceased sold only two (2) acres to the respondent's father and of which they were ready and willing to cede to them; while the defence of the respondent to that appellants' position was that the area they occupied separated by a stream from the rest of the land forming the estate of the deceased is what the deceased sold to Jason now respondent's deceased father. According to them it was seven (7) acres. The above being the undisputed factual position on the record, the points for determination falling for identification and determination by the learned Judge should have revolved around the above contested position. Instead, this is what the learned trial Judge set out as the issue for determination:
"5. The issue in my view, since there is evidence that the objector's family have been in occupation of what they bought 48 years, the same ought to be measured as the agreement did not mention the acreage."
With utmost respect to the learned Judge, we find no point for determination identified by the learned Judge in the above captioned portion of the judgment. What it all amounts to in our view is an own impression of what the learned Judge had formed of the record before her. We therefore find that no point(s) was (were) identified by the learned Judge for determination as was required of the Court by the prerequisite in the above rule.
In light of the totality of the above assessment and reasoning, we agree with the appellants' assertion that sanctioning the impugned judgment would leave the entire proceedings in limbo for the trial court's failure to effectually and judicially determine the dispute between the rival parties.
19. Also in the case of Machira t/a Machira & Co. Advocates v Wangethi Mwangi & another , Civil Appeal No. 179 of 1997, Akiwumi, JA had this to say on rulings arising from applications; "I think as required by Order XX rule 4 (now Order 21 rule 4) of the Civil Procedure Rules in respect of judgments, a ruling in an application which is opposed such as the one made by the appellant and opposed by the respondents, must be self-contained and should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision..." See also the case of Godffrey Gatere Kamau v Peter Mwangi Njuguna eKLR
20. The English case of Flanner v Halifax Agencies Ltd ALL ER 273 further explains the rationale for reasoned rulings and judgments thus;
"1. The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind, if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
2. The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself."
21. The Respondent was under obligation to prove her case pursuant to the dictates of section 107 of the Evidence Act which provide that "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side"
The effect of this is that if the party seeking judgment in a suit fails to avail evidence, or to avail evidence to the required standard, then such a party would fail to obtain judgment. This is the statutory yardstick to determine on whom the burden of proof in civil cases lies. The Appellants having denied all the allegations, the legal burden remained with the Respondent to persuade the trial court that all the facts pleaded existed. In Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, it was held that there is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. The legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of an issue. Section 107(1) of the Evidence Act provides:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
22. The evidential burden is cast upon any party to prove any particular fact, which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Evidence Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
It was contended by the Appellants that the Respondent, in order to succeed, was required to prove the particulars of negligence alleged in the plaint. That none of the particulars of negligence pleaded by the Respondent was proved by any evidence. That the Respondent did not show by evidence that the Appellants' motor vehicle veered onto the side of the motorcycle, or was being driven at an excessive speed nor was it shown that the Appellants failed to drive or manage the vehicle carefully, or that they failed to have regard to other road users, or that they failed to hoot, brake stop or swerve so as to avoid the accident. That it was not shown that the Appellants drove without regard to the condition of the road or that the vehicle was defective. That the above matters were what was pleaded as the particulars of negligence, but as no evidence was given proving them, they remained mere allegations, in the Plaint. That they were not proved and that without proof of these allegations of negligence, the Respondent could not succeed.
23. It was also submitted that the Appellants' driver testified that the motorcycle was overtaking the Appellants' car in the face of an oncoming lorry and that when the motorcyclist was unable to do so safely, he swerved back to the left lane, and hit the Appellants' car that he had been overtaking on the right door. That in this scenario, there is no negligent conduct on the part of the Appellants. That there is nothing to show that the Appellants' driver fell below the standard of a reasonable driver. That there is no evidence of the Appellants' wrong doing and thus, the evidence as presented showed that the accident was solely caused by the motorcyclist.
24. The Appellants posed the question-What is negligence and what must a Plaintiff prove in order to succeed? In ( Awale Transporters Ltd & another v Kariuki (Suing as the administrator of the Estate of Joshua Kiptanui (Dcd) KEHC 3402 :[2023] (KLR) the High Court explained it this way
"16.It is trite law that he who alleges must prove. The burden of proof of the negligence of the appellant rested solely on the Respondent. Negligence as defined by Perly Chartersworth on Negligence 5th Edition Chapter 1 is the omis
[...truncated]
1. The appeal herein arises from the judgment of Hon. Margaret Wambani Onditi, Chief Magistrate dated 13/2/2025 in Siaya CMCC No. 6 of 2020 wherein she held the Appellants 90% liable for the accident while the Respondent shoulders 10% contributory negligence and proceeded to award the Respondent Kshs 2,060,000 for loss on dependency as well as costs of the suit.
2. The Appellants were aggrieved and duly filed a Memorandum of Appeal dated 27 th February 2025 wherein they raised the following grounds of appeal namely; -
i) The learned trial Magistrate erred in law and in fact in deciding that the Appellants were 90 % liable in negligence without setting out the evidence, without analyzing the evidence, without making any findings on the facts, and without giving any reason for her decision contrary to Order 21 Rule 4 Civil Procedure Rules.
ii) The learned trial Magistrate in law and in fact in finding the Appellant liable in negligence at 90% without any evidence of, or any findings on, any such alleged negligence.
iii) The learned trial Magistrate erred in law and in fact in failing to find that the Respondent, in order to succeed, was required to prove the Appellants’ pleaded alleged negligence and to hold that indeed no such alleged negligence had been proved.
iv) The learned trial Magistrate erred in law and in fact in failing to consider the evidence of DW-1 which tended to show that the Appellants were not negligent.
v) The learned trial Magistrate erred in law and in fact in finding that the Appellants were 90% liable in negligence without assigning any reason for the said apportionment and when there was no evidence at all of the Appellants' negligence.
vi) The learned trial Magistrate erred in law and in fact in failing to find that neither the pleaded negligence nor the pleaded particulars thereof had been proved by any evidence.
vii) The learned trial Magistrate erred in law and in fact in failing to analyze the evidence as a whole and apportion liability between the Appellant and the Respondent as was appropriate.
viii) The learned trial Magistrate's decision that the Appellant was 90% liable is unsupported on the law and the facts.
ix) The learned trial Magistrate erred in law and in fact in failing to consider carefully the Appellant's submissions and the authorities cited therein.
x) The learned trial Magistrate erred in law and in fact in assessing and applying an income of Kshs 15,000.00 without any finding on any such income, the deceased's occupation, the earnings or expected earnings, contrary and without giving any reasons for such finding contrary to Order 21 Rule 4 Civil Procedure Rules.
xi) The learned trial Magistrate erred in law in failing to find and apply the income applicable which was that of a general worker in "All other areas" at Kshs. 7,240.95, according to the Regulation of Wages (General) (Amendment) Order 2018, applicable in December 2019 when the deceased died.
xii) The award for loss of dependency is inordinately high, unreasonable and unjustified as the multiplicand used was not based on any fact or law, was applied whimsically, and capriciously and without any proper exercise of the Court's discretion.
xiii) The learned trial Magistrate awarded damages for loss of dependency without any regard to the principles applicable to the award of such damages as established by law and precedents.
Reasons wherefore, the Appellants pray that the Appeal be allowed and for orders that: -
a) The judgment apportioning liability against the Appellant at 90% be set aside, and the Respondent's suit in the lower court be ordered dismissed.
b) Alternatively, the judgment on liability varied and be replaced with a suitable judgment.
c) The award for loss of dependency be set aside and/or be varied with a suitable award as the justice of the matter requires.
d) The Appellant be awarded the costs of this appeal and of the trial Court.
This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial Court and subject it to an independent analysis and arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See Selle vs Associated Motor Boat Co. Ltd (1968) EA 123 .
In Simon Taveta v Mercy Mutitu Njeru KECA 755 (KLR) , the Court of Appeal put it this way: -
"As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co. EA 123 , thus:
"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 vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)" .
This court further stated in Jabane -vs- Olenja KLR 661 :
3. "More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial judge who had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did - see in particular Ephantus wangi -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni vs. Kenya Bus Services (1982-88) 1 KAR 870. "
4. The Respondent had lodged suit vide a plaint dated 28 th January 2020 wherein she pleaded that the deceased was her son who was hit by the Appellants motor vehicle registration No. KCE 548W Nissan X Trail causing him fatal injuries and prayed for general damages under the Law Reform Act and Fatal Accident Act. That the Respondent also pleaded particulars of negligence on the part of the Appellants. The Appellants filed a defence dated 3 rd March 2019 wherein they denied the particulars of negligence attributed to them and maintained that the deceased was solely to blame for the accident and duly pleaded particulars of negligence against him and further sought for dismissal of the suit with costs.
5. The trial commenced in earnest on 28/11/2021.
6. Sarah Akinyi Wamboga (PW1) in her evidence testified inter alia; that the deceased was her elder son; that the deceased died on the 24/12/2019 and who was survived by two wives and four children; that the deceased’s wives left their matrimonial homes. She adopted her witness statement dated 28/1/2020 as her evidence in chief. She produced documents in her list of documents and maintained that the deceased was a full mechanic and a driver who earned Kshs 30,000/ per month. That she is the sole bread winner for the deceased’s children.
On cross examination, she stated inter alia; that the deceased died the same day at the age of 29 years old; that she did not witness the accident; that she found the victim in hospital; that the deceased’s wives left after the death of their husband and she could not know their whereabouts; that one of the children Kelly Ryan was born in 2019 and was still a toddler when the mother took off; that the birth certificates and school reports for the children were at home; that the chief is aware of the existence of the children; that the deceased was riding his own motorcycle when he was hit; that she did not have the riding licence for the deceased; that the decased was ferrying passengers using his motorcycle as a transport business; that the deceased was someone else’s employee; that the deceased’s employer had not given her the letter of employment showing that he earned Kshs 30,000/ per month but that the decased had orally informed her that he used to earn that much; that the deceased’s wives ran away with his documents and left her with the children.
7. No. 84390 Cpl Edson Otieno (PW2) testified inter alia; that the accident herein was recorded at Yala Police Station vide OB. No. 16 of 24/12/2019. He was empathic that the accident occurred on the 24/12/2019 at about 1600hrs at Muhoho area along Busia – Kisumu road. That the accident involved motor vehicle registration No. KCE 548W make Nissan X-trail which was being driven by Okeyo of P.O. Box 520 Yala and motor cycle Registration No. KMEW 350G make Boxer which was being ridden by Jared Daniel Owegi who succumbed to the injuries. That the registered owner of the accident motor vehicle was Joram Okeyo Guya and that the said vehicle was insured by Kenya Orient Insurance Company Limited. He produced the accident abstract as exhibit 3.
On cross examination, he testified inter alia; that the investigating officer in the traffic case was Corporal Koech who was transferred to Turbo Police Station and that his police statement, the sketch plan and his findings are contained in the police file. That the matter is still under investigations and that no one has been charged. That at paragraph 10 of the police abstract, both Corporal Koech and police constable Mutisya were indicated as the witnesses. That he was aware of the circumstances of the case and that the accident indeed happened and it was reported at their police station.
Both parties later agreed by consent to produce the birth certificates of the deceased’s children as exhibit 5. The Respondent therefore closed her case.
8. Brian Sam Okeyo (DW1) testified and adopted his statement dated 26/11/2021 and filed in Court on the 6/12/2021 as his evidence in chief. It was his evidence that he reported this accident to the police and he was issued with a police abstract dated 2/1/2020 which he produced as D Exhibit 1. He further produced his valid driving licence as D Exhibit 2 and a copy of certificate of examination and test dated the 27/2/2019 for motor vehicle registration No. KEC 548W as D exhibit 3. On cross-examination, he stated that the accident did take place and that he ahs no objection if the deceased’s family is compensated.
9. The Appellants closed their case.
10. The learned trial magistrate later considered the evidence and came up with the impugned judgment.
11. The appeal was canvassed by way of written submissions.
12. The Appellant’s counsel first pointed out the fact that the appeal is mainly on the finding on liability and the multiplicand of Kshs 15,000/ leading to the award on loss of dependency. That in her Plaint (at page 5-7 of the record) the Respondent being the legal representative of the estate of the deceased Daniel Jared Owegi, sued the Appellants for damages. She pleaded that on 24.12.2019, the deceased was lawfully riding his motor cycle along the Busia- Kisumu Road, and at Muhoho area, was knocked and fatally injured by motor vehicle KCE 548W, which was being driven negligently. She pleaded that the motor vehicle "lost control and came into a collision with the deceased". That several particulars of negligence were set out against the driver of motor vehicle KCE 548W, the 1st Appellant, among them that he allowed the motor vehicle to veer into the wrong side of the road, allowing the motor vehicle to so to the deceased side, driving at a excessive speed, failing to adhere to the safety of other road users especially the deceased, failing to hoot, brake, stop or swerve to avoid the accident, driving in total disregard of the road, and driving defective vehicles. That the Appellants, in an elaborate defence at page 11-13 of the record, denied all the allegations and particulars of negligence, and pleaded further that the accident was caused by the deceased's own negligence. The Appellant’s counsel did present a summary of the Respondent’s case but went ahead to concentrate on the Appellants’ evidence through DW1 which was that as he drove motor vehicle KCE 540W, towards Yala from Muhoho along the Kisumu- Busia Road, he saw a motor cycle coming from his rear at high speed. That there was an oncoming motor vehicle, a lorry. That the motor cycle at his rear then, without heeding the oncoming lorry, started to overtake DW1's vehicle on the right side. That at that juncture, the oncoming lorry was too near, and the motor cycle, to escape a collision with the lorry, swerved back to the left and ended up ramming into DW1's front driver' door, with the resultant impact throwing him off the road. That DW1 stopped his vehicle and took the injured motorcyclist to Yala Hospital, then went and reported the matter to the police. He blamed the motorcycle rider for riding at a high speed and overtaking without any care or regard to the road users. That DW-1 produced a police abstract (Exhibit D1) and Driving license (Exhibit D2) and a certificate of test and examination of his motor vehicle Exhibit D3. The certificate of examination (Exhibit D3, at page 57 of the record) showed the accident damage was on the onside (drivers) front window glass and front door, as stated by DW-1. The motor vehicle had no pre-accident defects. In cross examination, he was not asked any useful question in regard to the causation of the accident.
13. On liability, learned counsel reproduced the court’s finding: "considered the plaintiffs apparent evidence on record and the court is duly satisfied that the plaintiff has established her case on a balance of probabilities against the defendants jointly and eventually to the effect that the defendants are substantially to blame for the road traffic accident and hence should be held 90% liable. The plaintiff will hence fore bear 10% contribution....regarding the multiplicand/income of the deceased that a "monthly income of kshs. 15,000/= as suggested by the plaintiffs is fair, reasonable and just sum in the circumstances of the case"
14. Learned counsel submitted that the parties had in their submissions indicated that a multiplier of 20 and a dependency ratio of 2/3 was mutually acceptable by the parties, and that the Court did not thus err in applying the multiplier of the dependency ratio as proposed.
15. The Appellants counsel urged this court to examine and re-evaluate the evidence, and not to differ from the finding and interfere only when the finding of fact that is challenged on appeal is based on no evidence, or on a misapprehension of the evidence, or the trial magistrate is shown demonstrably to have acted on wrong principles in reaching the finding he did. That the Appellants, in ground 1 to 10 of the memorandum of appeal, complain that the trial court's judgment on liability was wrong. That there was no reason given for the finding that the appellants were 90% to blame. That the court simply stated that it had "considered the plaintiff's apparent evidence on record." This apparent evidence was not specified. That the trial Magistrate's error then was to find the Appellant liable at 90% without any regard to Order 21 Rule 4 of the Civil Procedure Rules. There was no consideration of the evidence by the Court. That the Court did not give any reasons for the finding that the Appellant was 90% to blame, and the Respondent 10%. That it is not clear why the court concluded that the Appellants were liable at 90% or at all. There was no consideration of the Appellants' driver's evidence, vis a vis that of the Respondent, and why the Court preferred the evidence of the Respondent and not that of the Appellants' driver.
16. The court was urged to consider the provisions of Order 21 Rule 4 Civil Procedure Rules which is as follows:
"Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."
17. It was contended that the operative word in this provision is SHALL. It was the view of the Appellants that the said rule requires that a judgment must contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision, failing which it would be a defective judgment. A Court of law must give reasons for its determination in all cases. This was not done in this case. The decision thus lacks legality and must be set aside for offending Order 21 Rule 4 as set out above. That Order 21 Rule 4 gives no room for discretion or choice. The judicial officer must give reasons for their decision. Courts are courts of law and as such they are supposed to follow the law. The law as to drafting and preparing of judgments is very clear and specific as to its containing the reasons for the conclusions and determination reached by the judicial officer. It presupposes that in every judgment reasons must be given as to why that decision has been reached by the judicial officer. Where it is found that there were no reasons given as to why the decision made by the judicial officer was reached, then that decision must be re-looked into. The decision/judgment thus violated this cardinal rule of the Civil Procedure Rules, 2010 warranting an interference by this Honourable Court.
18. Reliance was placed in the cases of Kiarie Wamutu v Mungai Kiarie & Another [1982]eKLR , the Court of Appeal was considering an appeal where the trial judge, a zealot of brevity according to the appellate court, on an application by the defendants under 0rder VI rule 13 of the Civil Procedure Rules for the plaint to be struck out and the suit dismissed, made the following order:- "Application granted with costs to the defendants. Leave to appeal refused." The Court of Appeal, on appeal against this order, said:
"The judge also failed to observe the provisions of Order XX rule 4 which states that judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."
In another Court of Appeal decision in Godfrey Gatere Kamau v Peter Mwangi Njuguna eKLR NYERI CoA Civil Appeal 139 of 2003 , the High Court had made a decision without giving any reasons. The Court of Appeal set it aside and said as follows:
" Having done so, we consider that the only order in this appeal is the one of 26th March 2003, which order does not have any reasons for it as required by Order XX R 4 , which provides:-
"Judgments in defended suits shall contain a concise statement of the case, the points for determination thereof and the reasons for such ".
And Order XX Rule 5 of the Civil Procedure Rules provides that:
"In suits in which issues have been framed, the court shall state its findings or decision, with the reasons therefore, upon each separate issue".
This court had occasion to deal with this point in several cases in the past, one such case being, Wamutu Vs Kiarie(1982) KLR 480 , where it was held inter alia:
"Judgments in defended suits shall contain a concise statement of the case points of determination, the decision thereon and reasons for such a decision as required by Order XX Rule 4 of the Civil Procedure Rule."
Again in Civil Appeal No. 179 of 1997 J.P. Machira t/a Machira & Co. Advocates vs Wangethi Mwangi & Another (Unreported), which was a majority decision, Akiwumi, JA said,
"I think that as is required by Order XX rule 4 of the Civil Procedure Rules in respect of judgments, a ruling in an application which is opposed such as the one made by the Appellant and opposed by the Respondents, must be self-contained and should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. This, I fear he did not endeavour to do. He therefore exercised his discretion improperly".
In the result, we allow the appeal on all four grounds; set aside the order allowing the Notice of Motion application dated 30th January, 2002, and substitute therefor an order dismissing the said Notice of Motion. We order that the suit be heard on its merits."
In Francis Barasa Lurare & another v Denis Nyongesa Maloba CoA Civil Appeal No. 163 OF 2018, the High Court Judge in a succession matter did not comply with Order 21 Rule 4 while making her decision as she did not set out the points for determination and nor give reasons for her determination. On appeal to the Court of Appeal, the Court of Appeal held that the judgment did not meet the threshold for drafting of a Judgment enshrined in Order 21, Rule 4 of the Civil Procedure Rules and was therefore sustainable on its merit. It thus set aside the judgment and remitted the case for retrial by the High Court. In the course of its decision, the Court Of Appeal held after setting out Order 21 Rule 4, of the Civil Procedure Rules:-
"The above position was reiterated by the court in the case of Wamitu vs. Kiarie (1982) KLR 481 , wherein the court held inter alia that:
"in defended suits, the Judgment shall contain a concise statement of the case, points of determination, the decision thereon and the reason for such a decision as required by Order XX, rule 4 of the CPR (as it was then cited) and now Order 21 rule 4."
We have revisited and construed the above provision on our own, in light of the restatement of the principle enshrined therein as enunciated in the Wamitu case and applied it to the rival position herein. Our findings thereon is that since the succession proceedings filed by the appellants were defended by the respondent, the learned trial Judge was enjoined to ensure that in the concise statement of the case both the rival pleadings and the evidence in support thereto were addressed. From the record as appraised by us, the case for the appellants was simply that the deceased sold only two (2) acres to the respondent's father and of which they were ready and willing to cede to them; while the defence of the respondent to that appellants' position was that the area they occupied separated by a stream from the rest of the land forming the estate of the deceased is what the deceased sold to Jason now respondent's deceased father. According to them it was seven (7) acres. The above being the undisputed factual position on the record, the points for determination falling for identification and determination by the learned Judge should have revolved around the above contested position. Instead, this is what the learned trial Judge set out as the issue for determination:
"5. The issue in my view, since there is evidence that the objector's family have been in occupation of what they bought 48 years, the same ought to be measured as the agreement did not mention the acreage."
With utmost respect to the learned Judge, we find no point for determination identified by the learned Judge in the above captioned portion of the judgment. What it all amounts to in our view is an own impression of what the learned Judge had formed of the record before her. We therefore find that no point(s) was (were) identified by the learned Judge for determination as was required of the Court by the prerequisite in the above rule.
In light of the totality of the above assessment and reasoning, we agree with the appellants' assertion that sanctioning the impugned judgment would leave the entire proceedings in limbo for the trial court's failure to effectually and judicially determine the dispute between the rival parties.
19. Also in the case of Machira t/a Machira & Co. Advocates v Wangethi Mwangi & another , Civil Appeal No. 179 of 1997, Akiwumi, JA had this to say on rulings arising from applications; "I think as required by Order XX rule 4 (now Order 21 rule 4) of the Civil Procedure Rules in respect of judgments, a ruling in an application which is opposed such as the one made by the appellant and opposed by the respondents, must be self-contained and should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision..." See also the case of Godffrey Gatere Kamau v Peter Mwangi Njuguna eKLR
20. The English case of Flanner v Halifax Agencies Ltd ALL ER 273 further explains the rationale for reasoned rulings and judgments thus;
"1. The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind, if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
2. The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself."
21. The Respondent was under obligation to prove her case pursuant to the dictates of section 107 of the Evidence Act which provide that "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side"
The effect of this is that if the party seeking judgment in a suit fails to avail evidence, or to avail evidence to the required standard, then such a party would fail to obtain judgment. This is the statutory yardstick to determine on whom the burden of proof in civil cases lies. The Appellants having denied all the allegations, the legal burden remained with the Respondent to persuade the trial court that all the facts pleaded existed. In Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, it was held that there is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. The legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of an issue. Section 107(1) of the Evidence Act provides:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
22. The evidential burden is cast upon any party to prove any particular fact, which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Evidence Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
It was contended by the Appellants that the Respondent, in order to succeed, was required to prove the particulars of negligence alleged in the plaint. That none of the particulars of negligence pleaded by the Respondent was proved by any evidence. That the Respondent did not show by evidence that the Appellants' motor vehicle veered onto the side of the motorcycle, or was being driven at an excessive speed nor was it shown that the Appellants failed to drive or manage the vehicle carefully, or that they failed to have regard to other road users, or that they failed to hoot, brake stop or swerve so as to avoid the accident. That it was not shown that the Appellants drove without regard to the condition of the road or that the vehicle was defective. That the above matters were what was pleaded as the particulars of negligence, but as no evidence was given proving them, they remained mere allegations, in the Plaint. That they were not proved and that without proof of these allegations of negligence, the Respondent could not succeed.
23. It was also submitted that the Appellants' driver testified that the motorcycle was overtaking the Appellants' car in the face of an oncoming lorry and that when the motorcyclist was unable to do so safely, he swerved back to the left lane, and hit the Appellants' car that he had been overtaking on the right door. That in this scenario, there is no negligent conduct on the part of the Appellants. That there is nothing to show that the Appellants' driver fell below the standard of a reasonable driver. That there is no evidence of the Appellants' wrong doing and thus, the evidence as presented showed that the accident was solely caused by the motorcyclist.
24. The Appellants posed the question-What is negligence and what must a Plaintiff prove in order to succeed? In ( Awale Transporters Ltd & another v Kariuki (Suing as the administrator of the Estate of Joshua Kiptanui (Dcd) KEHC 3402 :[2023] (KLR) the High Court explained it this way
"16.It is trite law that he who alleges must prove. The burden of proof of the negligence of the appellant rested solely on the Respondent. Negligence as defined by Perly Chartersworth on Negligence 5th Edition Chapter 1 is the omis
[...truncated]