Background
1. This judgment is in respect of a judgment delivered on 21st May 2021 by the trial court in the Kisumu CMCC No. 320 of 2020, in which the magistrate dismissed the Appellant’s suit arising from a road traffic accident claim involving the Respondent’s motor vehicle registration number KAP 031L Toyota Matatu, and motor vehicle registration number GKB 100M, then being driven by the Appellant.
2. The proceedings in the lower court were that the Appellant instituted proceedings against the Respondents, Alfred Otieno Juma (then the driver of KAP 031L), George Juma Aoko (the registered owner), and Oxygen Company (the proprietor), seeking general and special damages arising from a road traffic accident that occurred on 13th November 2017 near Sai Petrol Station along Kisumu-Nairobi Road.
3. The Appellant contended that the 1st Respondent, while driving motor vehicle registration number KAP 031L, negligently and carelessly managed the said vehicle, causing it to lose control and ram into the Appellant’s car, resulting in bodily injuries. The Appellant contended that as evidence of his negligence, the 1st Respondent was charged with the offence of careless driving in Kisumu Traffic Case No. 1504 of 2017, where he pleaded guilty.
4. The Respondents failed to enter an Appearance or file a defence within the stipulated time, prompting the Appellant to request interlocutory judgment under Order 10 Rule 2 & 6 of the Civil Procedure Rules, 2010. The matter proceeded to formal proof. Relying on the case of Francis Ochieng & Another v Alice Kajimba MGR HCCA No. 23 of 2015, the Appellant therefore prayed for Kshs. 400,000 as general damages and the special damages of Kshs. 7,050.
5. On 21st May 2021, the trial court dismissed the suit on the ground that the Appellant had failed to establish negligence on the part of the Respondents on a balance of probabilities. The court observed that no independent witness had been called to corroborate the Appellant’s testimony, and that no sketch map or measurements were produced in support of the claim.
6. The trial magistrate nonetheless indicated that, had liability been established, she would have awarded general damages in the sum of Kshs. 100,000/=. The claim for special damages was equally dismissed on the basis that the Appellant had not discharged the burden of proof, the court noting that some of the receipts tendered were illegible and that a cheque produced did not appear to be connected to the Appellant.
7. Dissatisfied with the judgment, the Appellant filed the present appeal on 18th June 2021, challenging the trial court’s findings, raising the following key grounds of appeal: -
i. That the Learned trial magistrate erred in fact and in law in failing to find that the accident occurred as a result of the defendant's own negligence.
ii. That the learned trial magistrate erred in fact and in law in placing the burden of proof higher than that which is ordinarily required in civil proceedings.
iii. That the learned trial magistrate erred in holding that the plaintiff failed to link the defendant with the cause of the accident despite the fact that a police abstract was produced in court, which indicated that the defendant caused the accident.
submissions
8. The appeal proceeded by way of written submissions. The Appellant in his submissions dated 3rd November 2023. No submissions were filed on behalf of the Respondents.
9. The Appellant submitted that the court erred in failing to find that the accident was caused by the 1st Respondent’s negligence, despite the police abstract and traffic case proceedings clearly attributing blame to the 1st Respondent.
10. The Appellant submitted that the trial magistrate erred in dismissing the suit despite overwhelming evidence proving that the accident was caused by the negligence of the 1st Respondent. The Appellant argued that the trial court wrongly placed a higher burden of proof, treating the matter as though it were a criminal case rather than a civil claim, where the standard of proof is on a balance of probabilities. This misapplication of legal principles, according to the Appellant, resulted in an unfair dismissal of the claim.
11. The Appellant further submitted that the police abstract, which was produced in evidence, confirmed that the accident occurred and attributed liability to the 1st Respondent. Additionally, proceedings from Kisumu Traffic Case No. 1504 of 2017 showed that the 1st Respondent was charged with careless driving. Although the case was withdrawn under Section 87(a) of the Criminal Procedure Code, the Appellant contends that this did not absolve the Respondent of civil liability.
12. The Appellant also faulted the trial magistrate for dismissing the suit due to lack of an independent witness and a sketch map, arguing that such evidence is not a legal requirement, particularly where the Respondents failed to enter an appearance or file a defence, despite the well-established principle that uncontroverted evidence should be given due weight in determining a case. The trial court’s failure to do so amounted to a misdirection in law, leading to an unjust outcome.
13. In conclusion, the Appellant prayed that the appeal be allowed, the judgment of the trial court on liability be set aside, with costs.
Analysis And Determination
14. Being a first appeal, the role of this Court is to look into the evidence and factual information presented at the trial court, evaluate the same and make a determination, conscious of the fact that the trial court had the advantage of observing the demeanour of the witnesses. The Court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:-
“…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 into account of particular circumstances or probabilities materially to estimate the evidence.”
15. This appeal challenges the trial court’s ruling on the issue of liability only. Liability in road traffic accidents is ordinarily determined by identifying the party that caused or contributed to the accident.
16. The provisions of sections 107,109, and 112 of the Evidence Act are the guiding legal provisions when it comes to the question of burden and standard of proof. In civil cases, the issue was dealt with in the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
17. The Court of Appeal in Micheal Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR held that:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:‘To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…”
18. In the present case, the Appellant alleged that the 1st Respondent drove carelessly, at an excessive speed, and without proper lookout, leading to the accident. The Appellant produced a police abstract in that regard and sought to rely on the fact that the Respondent was subsequently charged in court with a traffic offence arising from the accident.
19. While evidence on record indicates that the charges against the Respondent were afterward withdrawn under Section 87a of the Criminal Procedure Code, that in the view of the court, did not in any way absolve the 1st Respondent from civil liability in respect of the accident.
20. Evidence on record is that the Appellant testified as PW-1 and adopted his written statement as evidence in chief. According to the Appellant, on or about 13th November 2017, he was lawfully driving the motor vehicle registration No. GKB100M along the Kisumu-Nairobi Road when the 1st Respondent carelessly and negligently managed and or drove motor vehicle registration No. KAP 031L Toyota Matatu, causing it to lose control, veer off the road, and ram into the Appellant’s said motor vehicle.
21. The Appellant provided a police abstract, a P3 form, and medical records in support of his testimony. The evidence by the Appellant, when placed on legal scale of balance of probabilities, is, in the view of this court, leads to a conclusion that the accident actually happened and that the same may have been caused by the negligence of the 1st Respondent.
22. The Appellant having proved his case on a balance of probabilities, the burden then shifted to the Respondents to present evidence controverting the Appellant’s account. The Respondents having failed to file any evidence in this case, the Appellant’s testimony remained unchallenged. Accordingly, the trial Court erred in dismissing the Appellant’s claim.
23. The Respondents failed to enter an appearance or file a defence, meaning the Appellant’s evidence was unchallenged and uncontroverted. As correctly argued by the Appellant, the law is clear that where a defendant fails to adduce evidence, the plaintiff’s evidence remains unchallenged and should be given due weight. In Motex Knitwear Limited v Gopitex Knitwear Mills Limited HCCC No. 834 of 2002, the court held that:-
"Although the Defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged, but also that the claims made by the defendant in his defence and counterclaim are unsubstantiated. In the circumstances, the counterclaim must fail."
24. Similarly In Interchemie EA Limited v Nakuru Veterinary Centre Limited, it was held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. A similar position was held in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others where it was held: -
"it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against them is uncontroverted and therefore unchallenged."
25. In the premises, the Court is of the view that the trial court’s finding on the issue of liability was a misdirection warranting interference by this Court in the exercise of its appellate jurisdiction. Consequently, I allow the appeal in this respect and find the Respondent fully liable for the accident.
26. Since no appeal was taken up by the Appellant on the issue of damages, the findings of the trial court on the same are hereby upheld.
27. The upshot is that the appeal herein succeeds, but only in respect of liability which has been apportioned by this court fully against the Respondent. Quantum award, by the trial court, both on special and general damages, is hereby upheld.
Disposition
28. Accordingly, the Court makes the following final orders: -
i. The Trial court’s judgment of 21st May 2021 is hereby set aside and substituted by a judgment apportioning liability at 100 per cent in favour of the Appellant.
ii. The trial court’s award by the trial court of Kshs. 100,000/- general damages is hereby upheld.
iii. The claim for Kshs. 7.050/- in special damages is hereby dismissed.
29. Each party to bear their own costs of this appeal.
30. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
07TH DAY OF AUGUST 2025
ADO MOSES
JUDGE
1. This judgment is in respect of a judgment delivered on 21st May 2021 by the trial court in the Kisumu CMCC No. 320 of 2020, in which the magistrate dismissed the Appellant’s suit arising from a road traffic accident claim involving the Respondent’s motor vehicle registration number KAP 031L Toyota Matatu, and motor vehicle registration number GKB 100M, then being driven by the Appellant.
2. The proceedings in the lower court were that the Appellant instituted proceedings against the Respondents, Alfred Otieno Juma (then the driver of KAP 031L), George Juma Aoko (the registered owner), and Oxygen Company (the proprietor), seeking general and special damages arising from a road traffic accident that occurred on 13th November 2017 near Sai Petrol Station along Kisumu-Nairobi Road.
3. The Appellant contended that the 1st Respondent, while driving motor vehicle registration number KAP 031L, negligently and carelessly managed the said vehicle, causing it to lose control and ram into the Appellant’s car, resulting in bodily injuries. The Appellant contended that as evidence of his negligence, the 1st Respondent was charged with the offence of careless driving in Kisumu Traffic Case No. 1504 of 2017, where he pleaded guilty.
4. The Respondents failed to enter an Appearance or file a defence within the stipulated time, prompting the Appellant to request interlocutory judgment under Order 10 Rule 2 & 6 of the Civil Procedure Rules, 2010. The matter proceeded to formal proof. Relying on the case of Francis Ochieng & Another v Alice Kajimba MGR HCCA No. 23 of 2015, the Appellant therefore prayed for Kshs. 400,000 as general damages and the special damages of Kshs. 7,050.
5. On 21st May 2021, the trial court dismissed the suit on the ground that the Appellant had failed to establish negligence on the part of the Respondents on a balance of probabilities. The court observed that no independent witness had been called to corroborate the Appellant’s testimony, and that no sketch map or measurements were produced in support of the claim.
6. The trial magistrate nonetheless indicated that, had liability been established, she would have awarded general damages in the sum of Kshs. 100,000/=. The claim for special damages was equally dismissed on the basis that the Appellant had not discharged the burden of proof, the court noting that some of the receipts tendered were illegible and that a cheque produced did not appear to be connected to the Appellant.
7. Dissatisfied with the judgment, the Appellant filed the present appeal on 18th June 2021, challenging the trial court’s findings, raising the following key grounds of appeal: -
i. That the Learned trial magistrate erred in fact and in law in failing to find that the accident occurred as a result of the defendant's own negligence.
ii. That the learned trial magistrate erred in fact and in law in placing the burden of proof higher than that which is ordinarily required in civil proceedings.
iii. That the learned trial magistrate erred in holding that the plaintiff failed to link the defendant with the cause of the accident despite the fact that a police abstract was produced in court, which indicated that the defendant caused the accident.
submissions
8. The appeal proceeded by way of written submissions. The Appellant in his submissions dated 3rd November 2023. No submissions were filed on behalf of the Respondents.
9. The Appellant submitted that the court erred in failing to find that the accident was caused by the 1st Respondent’s negligence, despite the police abstract and traffic case proceedings clearly attributing blame to the 1st Respondent.
10. The Appellant submitted that the trial magistrate erred in dismissing the suit despite overwhelming evidence proving that the accident was caused by the negligence of the 1st Respondent. The Appellant argued that the trial court wrongly placed a higher burden of proof, treating the matter as though it were a criminal case rather than a civil claim, where the standard of proof is on a balance of probabilities. This misapplication of legal principles, according to the Appellant, resulted in an unfair dismissal of the claim.
11. The Appellant further submitted that the police abstract, which was produced in evidence, confirmed that the accident occurred and attributed liability to the 1st Respondent. Additionally, proceedings from Kisumu Traffic Case No. 1504 of 2017 showed that the 1st Respondent was charged with careless driving. Although the case was withdrawn under Section 87(a) of the Criminal Procedure Code, the Appellant contends that this did not absolve the Respondent of civil liability.
12. The Appellant also faulted the trial magistrate for dismissing the suit due to lack of an independent witness and a sketch map, arguing that such evidence is not a legal requirement, particularly where the Respondents failed to enter an appearance or file a defence, despite the well-established principle that uncontroverted evidence should be given due weight in determining a case. The trial court’s failure to do so amounted to a misdirection in law, leading to an unjust outcome.
13. In conclusion, the Appellant prayed that the appeal be allowed, the judgment of the trial court on liability be set aside, with costs.
Analysis And Determination
14. Being a first appeal, the role of this Court is to look into the evidence and factual information presented at the trial court, evaluate the same and make a determination, conscious of the fact that the trial court had the advantage of observing the demeanour of the witnesses. The Court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:-
“…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 into account of particular circumstances or probabilities materially to estimate the evidence.”
15. This appeal challenges the trial court’s ruling on the issue of liability only. Liability in road traffic accidents is ordinarily determined by identifying the party that caused or contributed to the accident.
16. The provisions of sections 107,109, and 112 of the Evidence Act are the guiding legal provisions when it comes to the question of burden and standard of proof. In civil cases, the issue was dealt with in the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
17. The Court of Appeal in Micheal Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR held that:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:‘To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…”
18. In the present case, the Appellant alleged that the 1st Respondent drove carelessly, at an excessive speed, and without proper lookout, leading to the accident. The Appellant produced a police abstract in that regard and sought to rely on the fact that the Respondent was subsequently charged in court with a traffic offence arising from the accident.
19. While evidence on record indicates that the charges against the Respondent were afterward withdrawn under Section 87a of the Criminal Procedure Code, that in the view of the court, did not in any way absolve the 1st Respondent from civil liability in respect of the accident.
20. Evidence on record is that the Appellant testified as PW-1 and adopted his written statement as evidence in chief. According to the Appellant, on or about 13th November 2017, he was lawfully driving the motor vehicle registration No. GKB100M along the Kisumu-Nairobi Road when the 1st Respondent carelessly and negligently managed and or drove motor vehicle registration No. KAP 031L Toyota Matatu, causing it to lose control, veer off the road, and ram into the Appellant’s said motor vehicle.
21. The Appellant provided a police abstract, a P3 form, and medical records in support of his testimony. The evidence by the Appellant, when placed on legal scale of balance of probabilities, is, in the view of this court, leads to a conclusion that the accident actually happened and that the same may have been caused by the negligence of the 1st Respondent.
22. The Appellant having proved his case on a balance of probabilities, the burden then shifted to the Respondents to present evidence controverting the Appellant’s account. The Respondents having failed to file any evidence in this case, the Appellant’s testimony remained unchallenged. Accordingly, the trial Court erred in dismissing the Appellant’s claim.
23. The Respondents failed to enter an appearance or file a defence, meaning the Appellant’s evidence was unchallenged and uncontroverted. As correctly argued by the Appellant, the law is clear that where a defendant fails to adduce evidence, the plaintiff’s evidence remains unchallenged and should be given due weight. In Motex Knitwear Limited v Gopitex Knitwear Mills Limited HCCC No. 834 of 2002, the court held that:-
"Although the Defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged, but also that the claims made by the defendant in his defence and counterclaim are unsubstantiated. In the circumstances, the counterclaim must fail."
24. Similarly In Interchemie EA Limited v Nakuru Veterinary Centre Limited, it was held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. A similar position was held in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others where it was held: -
"it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against them is uncontroverted and therefore unchallenged."
25. In the premises, the Court is of the view that the trial court’s finding on the issue of liability was a misdirection warranting interference by this Court in the exercise of its appellate jurisdiction. Consequently, I allow the appeal in this respect and find the Respondent fully liable for the accident.
26. Since no appeal was taken up by the Appellant on the issue of damages, the findings of the trial court on the same are hereby upheld.
27. The upshot is that the appeal herein succeeds, but only in respect of liability which has been apportioned by this court fully against the Respondent. Quantum award, by the trial court, both on special and general damages, is hereby upheld.
Disposition
28. Accordingly, the Court makes the following final orders: -
i. The Trial court’s judgment of 21st May 2021 is hereby set aside and substituted by a judgment apportioning liability at 100 per cent in favour of the Appellant.
ii. The trial court’s award by the trial court of Kshs. 100,000/- general damages is hereby upheld.
iii. The claim for Kshs. 7.050/- in special damages is hereby dismissed.
29. Each party to bear their own costs of this appeal.
30. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
07TH DAY OF AUGUST 2025
ADO MOSES
JUDGE