(An Appeal arising from the Judgment and decree of the Honourable Dennis Waweru Buteti, in Limuru Chief Magistrate’s Civil Case Number 241 of 2025 delivered on 28 th August,2025).
A. INTRODUCTION
1. This appeal arises from the judgment of the trial court delivered on 28 th August, 2025 in which the Appellant’s suit for recovery of material damage arising from a road traffic accident was dismissed.
2. The Appellant, who was the Plaintiff before the trial court, instituted the suit seeking special damages for repairs and related losses allegedly occasioned by a road traffic accident involving the parties' Motor Vehicles Registration Numbers KCN 385N and KBN 337N.
3. At the hearing, the Appellant called three witnesses. The first was a police officer attached to the traffic department of Tigoni Police Station , the second was a motor vehicle assessor who prepared the assessment report regarding the damage sustained by the Appellant’s motor vehicle and the third one was the Plaintiff who is the registered owner of the vehicle.
4. The police officer testified and produced a police abstract. However, during cross-examination, she candidly admitted that she was neither the investigating officer nor an eyewitness to the accident. Her testimony was therefore limited to information contained in police records.
5. The motor assessor testified regarding the extent of damage sustained by the motor vehicle and the estimated cost of repairs. He was not present at the scene of the accident and could not testify as to how the accident occurred or who was to blame.
6. The Respondent called the driver of the subject motor vehicle KBN 337N who gave a detailed account of the circumstances under which the accident occurred and denied negligence on the part of the Respondent and shifted the blame to the Appellant herein.
7. Upon considering the evidence, the trial court found that the Appellant had failed to prove liability on a balance of probabilities and dismissed the suit.
8. Being dissatisfied with that decision, the Appellant lodged the present appeal.
B. ANALYSIS AND DETERMINATION
9. This being a first appeal, this Court is obligated to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
10. The duty of a first appellate court was stated in Selle and Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 , namely, to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify .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..."
C. ISSUES FOR DETERMINATION
11. From the memorandum of appeal and the submissions, the court deduces the following issues for determination:-
i) whether the Appellant proved negligence against the Respondent on a balance of probabilities .
12. Sections 107, 108 and 109 of the Evidence Act places the burden of proof upon the party who asserts the existence of facts. The Appellant therefore bore the legal burden of proving that the Respondent was negligent and that such negligence caused the accident.
13. The record shows that the Appellant did not call the driver of the motor vehicle registration number KCN 385N involved in the accident. No explanation was offered as to why the driver, being the person who witnessed and participated in the occurrence of the accident, was not called to testify.
14. The significance of calling material witnesses was discussed by the Court of Appeal in Bukenya and Others v. Uganda (1972) EA 549 in which the Court of Appeal held that it is the duty of the prosecution to make available all witnesses who are necessary to establish the truth, even if their evidence is be inconsistent. It was further held in that case that it is the duty of the court to call witnesses whose evidence appears essential to the just decision of the case. Finally, that court also held that an adverse inference may be drawn for failing to call such witnesses.In the present case, the driver was the most critical witness regarding the occurrence of the accident. Without his testimony, the Appellant was left without direct evidence explaining how the accident occurred and how the Respondent was allegedly negligent.
15. The police officer who testified admitted that he neither investigated the accident nor witnessed it. Her evidence was therefore hearsay insofar as the circumstances of the accident were concerned.
16. In Peter Kanithi Kimunya vs. Aden Guyo Haro [2014] eKLR it was held: “A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.”,
17. The Court observed that a police officer who neither witnessed nor investigated an accident cannot competently testify as to the occurrence of the accident or attribute blame based merely on information obtained from police records. Similarly, the assessor's evidence only established the nature and extent of damage sustained by the vehicle. It did not establish liability.
18. The Appellant heavily relied on the police abstract which indicated that the Respondent was to blame for the accident. In Wangongu v Kithinji & 2 others (2024) eKLR , the respondent argued that a police abstract cannot be a conclusive proof of negligence, where the Appellant fails to adduce adequate evidence demonstrating the how the accident occurred.
19. While a police abstract is an admissible document, it is not conclusive proof of negligence. The Court of Appeal in Robinson Mwangi Karanja v Judith Beru Mwarania [2004] eKLR held that a police abstract is not by itself proof of liability and that liability must be established through credible evidence.
20. The Court therefore finds that although the police abstract may have indicated that the Respondent was blamed, the maker of that finding was not called to testify and the officer who testified expressly admitted that he was not the investigating officer. Consequently, the basis upon which blame was attributed to the Respondent was never established before the court. A visit to the accident scene by the traffic police would have helped them ascertain if there was a stone or debris of a stone on the scene. It is rather odd that despitethe unique circumstances of the accident, the Appellant did not find it necessary to collect such evidence as aforesaid nor call the driver of the Appellant.
21. On the other hand, the Respondent called the driver who gave a first-hand account of how the accident occurred. His evidence remained substantially unchallenged by any eyewitness testimony from the Appellant.
22. It is trite law that where evidence is tendered by one party and is not rebutted by evidence of equal or greater probative value, the court is entitled to rely upon such evidence.
23. Having re-evaluated the entire record, this Court finds that the Appellant failed to place before the trial court sufficient evidence to prove negligence against the Respondent on a balance of probabilities.
24. The trial court correctly found that proof of damage alone was insufficient. Liability had first to be established before the court could consider the question of quantum.
25. This Court finds no error in the trial court's evaluation of the evidence and no basis has been demonstrated to warrant interference with its findings.
DISPOSITION
26. Consequently, the appeal lacks merit and is hereby dismissed.
27. The judgment of the trial court dismissing the Appellant's suit is hereby upheld.
28. The Respondent shall have the costs of this appeal as well as the costs in the court below.
It is so ordered.
A. INTRODUCTION
1. This appeal arises from the judgment of the trial court delivered on 28 th August, 2025 in which the Appellant’s suit for recovery of material damage arising from a road traffic accident was dismissed.
2. The Appellant, who was the Plaintiff before the trial court, instituted the suit seeking special damages for repairs and related losses allegedly occasioned by a road traffic accident involving the parties' Motor Vehicles Registration Numbers KCN 385N and KBN 337N.
3. At the hearing, the Appellant called three witnesses. The first was a police officer attached to the traffic department of Tigoni Police Station , the second was a motor vehicle assessor who prepared the assessment report regarding the damage sustained by the Appellant’s motor vehicle and the third one was the Plaintiff who is the registered owner of the vehicle.
4. The police officer testified and produced a police abstract. However, during cross-examination, she candidly admitted that she was neither the investigating officer nor an eyewitness to the accident. Her testimony was therefore limited to information contained in police records.
5. The motor assessor testified regarding the extent of damage sustained by the motor vehicle and the estimated cost of repairs. He was not present at the scene of the accident and could not testify as to how the accident occurred or who was to blame.
6. The Respondent called the driver of the subject motor vehicle KBN 337N who gave a detailed account of the circumstances under which the accident occurred and denied negligence on the part of the Respondent and shifted the blame to the Appellant herein.
7. Upon considering the evidence, the trial court found that the Appellant had failed to prove liability on a balance of probabilities and dismissed the suit.
8. Being dissatisfied with that decision, the Appellant lodged the present appeal.
B. ANALYSIS AND DETERMINATION
9. This being a first appeal, this Court is obligated to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
10. The duty of a first appellate court was stated in Selle and Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 , namely, to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify .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..."
C. ISSUES FOR DETERMINATION
11. From the memorandum of appeal and the submissions, the court deduces the following issues for determination:-
i) whether the Appellant proved negligence against the Respondent on a balance of probabilities .
12. Sections 107, 108 and 109 of the Evidence Act places the burden of proof upon the party who asserts the existence of facts. The Appellant therefore bore the legal burden of proving that the Respondent was negligent and that such negligence caused the accident.
13. The record shows that the Appellant did not call the driver of the motor vehicle registration number KCN 385N involved in the accident. No explanation was offered as to why the driver, being the person who witnessed and participated in the occurrence of the accident, was not called to testify.
14. The significance of calling material witnesses was discussed by the Court of Appeal in Bukenya and Others v. Uganda (1972) EA 549 in which the Court of Appeal held that it is the duty of the prosecution to make available all witnesses who are necessary to establish the truth, even if their evidence is be inconsistent. It was further held in that case that it is the duty of the court to call witnesses whose evidence appears essential to the just decision of the case. Finally, that court also held that an adverse inference may be drawn for failing to call such witnesses.In the present case, the driver was the most critical witness regarding the occurrence of the accident. Without his testimony, the Appellant was left without direct evidence explaining how the accident occurred and how the Respondent was allegedly negligent.
15. The police officer who testified admitted that he neither investigated the accident nor witnessed it. Her evidence was therefore hearsay insofar as the circumstances of the accident were concerned.
16. In Peter Kanithi Kimunya vs. Aden Guyo Haro [2014] eKLR it was held: “A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.”,
17. The Court observed that a police officer who neither witnessed nor investigated an accident cannot competently testify as to the occurrence of the accident or attribute blame based merely on information obtained from police records. Similarly, the assessor's evidence only established the nature and extent of damage sustained by the vehicle. It did not establish liability.
18. The Appellant heavily relied on the police abstract which indicated that the Respondent was to blame for the accident. In Wangongu v Kithinji & 2 others (2024) eKLR , the respondent argued that a police abstract cannot be a conclusive proof of negligence, where the Appellant fails to adduce adequate evidence demonstrating the how the accident occurred.
19. While a police abstract is an admissible document, it is not conclusive proof of negligence. The Court of Appeal in Robinson Mwangi Karanja v Judith Beru Mwarania [2004] eKLR held that a police abstract is not by itself proof of liability and that liability must be established through credible evidence.
20. The Court therefore finds that although the police abstract may have indicated that the Respondent was blamed, the maker of that finding was not called to testify and the officer who testified expressly admitted that he was not the investigating officer. Consequently, the basis upon which blame was attributed to the Respondent was never established before the court. A visit to the accident scene by the traffic police would have helped them ascertain if there was a stone or debris of a stone on the scene. It is rather odd that despitethe unique circumstances of the accident, the Appellant did not find it necessary to collect such evidence as aforesaid nor call the driver of the Appellant.
21. On the other hand, the Respondent called the driver who gave a first-hand account of how the accident occurred. His evidence remained substantially unchallenged by any eyewitness testimony from the Appellant.
22. It is trite law that where evidence is tendered by one party and is not rebutted by evidence of equal or greater probative value, the court is entitled to rely upon such evidence.
23. Having re-evaluated the entire record, this Court finds that the Appellant failed to place before the trial court sufficient evidence to prove negligence against the Respondent on a balance of probabilities.
24. The trial court correctly found that proof of damage alone was insufficient. Liability had first to be established before the court could consider the question of quantum.
25. This Court finds no error in the trial court's evaluation of the evidence and no basis has been demonstrated to warrant interference with its findings.
DISPOSITION
26. Consequently, the appeal lacks merit and is hereby dismissed.
27. The judgment of the trial court dismissing the Appellant's suit is hereby upheld.
28. The Respondent shall have the costs of this appeal as well as the costs in the court below.
It is so ordered.