(Being an Appeal from the judgment and decree of Hon. Lilian Lewa, Principal Magistrate delivered on 21/6/2024 at Kwale Magistrates Court Civil Case No. 366 of 2017)
1. This appeal was filed through a memorandum dated 27/6/2024. The record of appeal is dated 22/12/2024.
2. The appeal seeks to challenge the judgment of the trial court delivered on 21/6/2024 both on liability and assessment of damages. The 1st respondent suing as the personal representative of the estate of Dennis Mutua Wambua (deceased) filed suit for compensation against the appellant in a plaint dated 28/6/2019 in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents. The 2nd respondent was joined to the suit as a 3rd party.
3. It was the 1st respondent’s case before the trial court that the deceased met his death as a result of negligence on the part of the driver of the appellant’s motor vehicle registration number KBZ 719X Toyota Van. The 1st respondent alleged in the plaint that the appellant’s vehicle knocked a tuk tuk registration number KMAZ 268A which was heading towards Mombasa from Ukunda which lost control veered across, went to the wrong side of the road and hit the deceased who had packed his motor cycle registration number KTWR 152D on the other side of the road and fatally injured him.
4. It was the 1st respondent’s case that the deceased aged 22 years was his son. That he was working as a boda boda operator earning KShs 600/= per day. He was unmarried and he was supporting the 1st respondent and the family had lost his support through the accident.
5. The appellant filed a statement of defence dated 23/9/2019. He denied the 1st respondent’s claim in toto and put him to strict proof. He further pleaded negligence and contribution on the part of the deceased as well as the driver of the tuk tuk registration number KMAZ 268A.
6. As such, the appellant enjoined the owner of the tuk tuk John Otieno who is the 2nd respondent herein, to the suit as a third party and as being vicariously liable for the negligence of the driver.
7. The third party did not enter appearance or file defence to the defendant’s claim.
8. At the hearing, evidence for the 1st respondent was given by PW 1, PC Dominic Doriwa of Diani Traffic Base and PW 2, Mutua Wambua, the 1st respondent.
9. PW 1, PC Dominic Doriwa was not the investigating officer and did not visit the scene of the accident. He gave evidence on the occurrence of the accident as per what was contained in the investigations file which he had in court. Therefore, what he said on the circumstances of how the accident occurred was hearsay and inadmissible except for what he was asked and he answered in cross-examination.
10. PW 1 said that Sergeant Wanjala and Inspector Mathenge rushed to the scene and took police action on the case. He produced the police abstract dated 15/6/17 as Exh. 1 issued in respect of the accident confirming that the accident did occur and was reported at the police station. The police abstract also indicates that the driver of the vehicle KBZ 719A Toyota van had been charged in court under file No. 210 of 2017 and was pending before court.
11. In cross-examination, PW 1 said that he had the police file with him in court. He said the car, Tuk tuk and motor cycle were involved in the accident but he could not tell the point of impact or which of the three set in motion the chain of events causing the accident. He said that as per the file, he could tell the lane on which the accident occurred. He said that the appellant, Ramadhan Juma was charged for the offence of causing death by dangerous driving and was convicted and fined KShs 100,000/=. He said the police abstract was completed shortly after the accident and did not bear the results of the case against the appellant.
12. PW 2, Mutua Wambua, the 1st respondent adopted his witness statement as his evidence-in-chief. He did not witness the accident and he had nothing to offer in terms of how the accident occurred.
13. That was all the evidence the learned magistrate had to rely upon to decide on liability for the accident.
14. The appellant did not offer any evidence at the trial.
15. After trial the learned trial magistrate found on the issue of liability that the same had been proved wholly against the appellant.
16. The appellant was dissatisfied with that decision and now appeals to this court on the grounds set out in the memorandum of appeal. The grounds are principally two as set out by learned counsel in his submissions. First that the finding of the trial court on liability against the appellant was without evidence as the 1st respondent had not proved his case on a balance of probability. Second, that the damages awarded for loss of dependency and loss of expectation of life were inordinately high thereby representing an erroneous estimate.
17. Learned counsel for the appellant submits that the 2nd respondent did not tender any evidence that would have caused the trial court to attribute liability upon the appellant. He submits citing section 107, 108 and 109 of the Evidence Act (Cap. 80) Laws of Kenya that the respondent did not discharge the burden of proof as required by law. Learned counsel has submitted several authorities on that issue. Learned counsel has submitted that neither the evidence of PW 1 nor that of PW 2 established how the accident occurred. In that case, the 1st respondent’s case failed and should have been dismissed by the trial court.
18. On his part, learned counsel for the 1st respondent insisted that the trial court had reached the correct finding that the appellant was liable for the accident. Learned counsel submitted citing authorities that the standard of proof in civil cases is on a balance of probability and that the 1st respondent had discharged the burden of proof on that standard.
19. Learned counsel cited various authorities in which it was held that a police abstract is good evidence that an accident had occurred, the fact that the investigating officer did not attend court to testify or to produce it notwithstanding.
20. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“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 v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
21. The learned trial magistrate found that no doubt the accident occurred as supported by the police abstract produced by PW 1, the police officer. She was also satisfied from the evidence in the police abstract that the appellant was the owner of the accident vehicle KBZ 719X Toyota Van and this fact was not disputed by the appellant.
22. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
23. This Court will however interfere where the finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (see the case of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR)).
24. It was submitted by learned counsel for the appellant that the onus was on the 1st respondent to prove his case and it never shifted to the appellant. I agree that that is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya, which provides:
“107. (1) 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.”
25. In this case, the 1st respondent pleaded in his plaint and testified in court that he wished the court to find in his favour that the appellant had through negligence caused the death of his son through the road traffic accident and therefore was liable to pay him damages.
26. However, the only evidence he made available to the court was that the accident had occurred and his son had died as a result thereof. The connection between the death of his son and the accident was had through the police abstract. The contents of the police abstract that the accident did occur and that the deceased was involved and died as a result was not challenged. Similarly, the evidence that the appellant had been charged in a traffic case indicated in the police abstract as Court Case File No. 210 of 2017 was not challenged. The appellant was therefore blamed for the accident.
27. However, neither of the 1st respondent’s witnesses brought forth evidence of his assertions of how the accident occurred. PW 1, the police officer who testified conceded that he was not the investigating officer nor did he visit the scene of the accident. He only attended court to produce the police abstract. He made some assertions on how the accident occurred but that was hearsay. The 1st respondent in his testimony also made some assertions on how the accident occurred but again, conceding that he never witnessed the accident, that means all he said was hearsay.
28. Even then, I am minded to remember that the burden of proof was upon the 1st respondent who wished the court to find in his favour that the appellant had caused the accident by negligence. But section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened. It says:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
29. In this case, the court is faced with the fact that an accident did occur on the road. Proper human conduct dictates that a vehicle when properly driven on the road will not collide into another just like that. In the case of Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] eKLR the Court of Appeal in the above case said thus:
“Indeed, from the averments in the plaint and from the evidence of Ruth Kendi the doctrine of Res Ipsa Loquitur applied in this case and the appellant did not discharge the burden of showing that the accident occurred without the negligence of its driver. Buses, when properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation.
30. I wish to extrapolate this observation to the circumstances of the present case. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
31. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
32. In this case, an accident involving the deceased’s motor cycle and the appellant’s vehicle did occur on the road. However, there is no evidence of how the accident occurred. In the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame. The Court of Appeal said:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of Barclay – Steward Limited & Another v. Waiyaki [1982-88] 1 KAR 1118, this Court said:-
“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”
The Court said further: -
“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
In Baker v Market Harborough Industrial Co-operative Society Ltd; Wallace v Richards (Leicester) Ltd, Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…”
See also Welch v. Standard Bank Ltd [1970] EA 115 at 117 and Simon v. Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame…”
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
33. Consequently, guided by this decision, I must depart from the finding of the learned trial magistrate that only the appellant was to blame for the accident. On a balance of probability, on the basis of the uncontroverted evidence that indeed the accident occurred and the deceased was involved as a rider of a motor cycle on the road, I find that both driver of the vehicle and the rider of the motor cycle were equally to blame for the accident. Consequently, I would set aside the decision of the trial court apportion blame holly upon the appellant and apportion liability between the driver and the rider in the ratio of 50:50.
34. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
35. The appeal on assessment of damages was on loss of expectation of life and loss of dependency.
36. On the award of loss of expectation of life learned counsel for the appellant submits that the trial court ought to have awarded as sum of KShs 100,000/= as the conventional sum awarded by courts. That submission is correct. However, considering the young age of the deceased and the fact that he died while in active service of operating his motor cycle business, I do not find that sum to be inordinately high in the circumstances. In the case of Peter Kibogoro Wanjohi V Christine Wakuthi Muriuki & another [2009] KEHC 1852 (KLR) where Justice R. N. Nambuye (as she then was) awarded KShs.150,000/= as damages for loss of expectation of life in a case of a similar nature. Similarly in Agnes Mutinda Ndolo & another v Mboya Wambua & 2 others [2017] KEHC 2990 (KLR) the High Court on appeal found that the award of KShs 150,000/= for loss of expectation of life was reasonable.
37. I have considered the submissions by learned counsels and I find that the learned trial magistrate was correct in her approach to award the KShs 150,000/= general damages for loss of expectation of life.
38. On loss of dependency, learned counsel for the appellant submits that the trial magistrate fell into error when she found that the 1st respondent had proved dependency. It is the appellant’s submission that the 1st respondent had not produced any document such as certificate of birth or letter from the chief to prove that he was the father of the deceased. The appellant did not however challenge the Grant Ad litem issued to the 1st respondent in which his relation to the deceased should have been disclosed before the same was issued. Additionally, the oral evidence of the 1st respondent that the deceased was his son was not challenged. In the circumstances, the learned trial magistrate was correct in believing him to be the father of the deceased. He said the deceased was assisting his family from his boda boda operations. I am satisfied that dependency by the 1st respondent was proved.
39. Learned counsel for the appellant ended his submission on the issue of award of damages by stating that in the event this court holds that dependency was proved then the appellant was content that the award of KShs. 954,112.00 was reasonable in the circumstances. Therefore, that award remains as awarded by the trial court.
40. The award of damages made by the trial court therefore remain such.
41. Having apportioned liability in the ratio of 50:50, the damages assessed by the trial court will be subjected to that ratio.
42. The appellant having succeeded half way to unsettle the judgment of the trial court, I find that with respect to the appellant and the 1st respondent, each party will bear its own costs.
43. Orders accordingly.
Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 23rd day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kioko for the Appellant.
N/A for the 1st Respondent.
N/A for the 2nd Respondent.
Ummu: Court Assistant.
1. This appeal was filed through a memorandum dated 27/6/2024. The record of appeal is dated 22/12/2024.
2. The appeal seeks to challenge the judgment of the trial court delivered on 21/6/2024 both on liability and assessment of damages. The 1st respondent suing as the personal representative of the estate of Dennis Mutua Wambua (deceased) filed suit for compensation against the appellant in a plaint dated 28/6/2019 in a claim for special damages and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents. The 2nd respondent was joined to the suit as a 3rd party.
3. It was the 1st respondent’s case before the trial court that the deceased met his death as a result of negligence on the part of the driver of the appellant’s motor vehicle registration number KBZ 719X Toyota Van. The 1st respondent alleged in the plaint that the appellant’s vehicle knocked a tuk tuk registration number KMAZ 268A which was heading towards Mombasa from Ukunda which lost control veered across, went to the wrong side of the road and hit the deceased who had packed his motor cycle registration number KTWR 152D on the other side of the road and fatally injured him.
4. It was the 1st respondent’s case that the deceased aged 22 years was his son. That he was working as a boda boda operator earning KShs 600/= per day. He was unmarried and he was supporting the 1st respondent and the family had lost his support through the accident.
5. The appellant filed a statement of defence dated 23/9/2019. He denied the 1st respondent’s claim in toto and put him to strict proof. He further pleaded negligence and contribution on the part of the deceased as well as the driver of the tuk tuk registration number KMAZ 268A.
6. As such, the appellant enjoined the owner of the tuk tuk John Otieno who is the 2nd respondent herein, to the suit as a third party and as being vicariously liable for the negligence of the driver.
7. The third party did not enter appearance or file defence to the defendant’s claim.
8. At the hearing, evidence for the 1st respondent was given by PW 1, PC Dominic Doriwa of Diani Traffic Base and PW 2, Mutua Wambua, the 1st respondent.
9. PW 1, PC Dominic Doriwa was not the investigating officer and did not visit the scene of the accident. He gave evidence on the occurrence of the accident as per what was contained in the investigations file which he had in court. Therefore, what he said on the circumstances of how the accident occurred was hearsay and inadmissible except for what he was asked and he answered in cross-examination.
10. PW 1 said that Sergeant Wanjala and Inspector Mathenge rushed to the scene and took police action on the case. He produced the police abstract dated 15/6/17 as Exh. 1 issued in respect of the accident confirming that the accident did occur and was reported at the police station. The police abstract also indicates that the driver of the vehicle KBZ 719A Toyota van had been charged in court under file No. 210 of 2017 and was pending before court.
11. In cross-examination, PW 1 said that he had the police file with him in court. He said the car, Tuk tuk and motor cycle were involved in the accident but he could not tell the point of impact or which of the three set in motion the chain of events causing the accident. He said that as per the file, he could tell the lane on which the accident occurred. He said that the appellant, Ramadhan Juma was charged for the offence of causing death by dangerous driving and was convicted and fined KShs 100,000/=. He said the police abstract was completed shortly after the accident and did not bear the results of the case against the appellant.
12. PW 2, Mutua Wambua, the 1st respondent adopted his witness statement as his evidence-in-chief. He did not witness the accident and he had nothing to offer in terms of how the accident occurred.
13. That was all the evidence the learned magistrate had to rely upon to decide on liability for the accident.
14. The appellant did not offer any evidence at the trial.
15. After trial the learned trial magistrate found on the issue of liability that the same had been proved wholly against the appellant.
16. The appellant was dissatisfied with that decision and now appeals to this court on the grounds set out in the memorandum of appeal. The grounds are principally two as set out by learned counsel in his submissions. First that the finding of the trial court on liability against the appellant was without evidence as the 1st respondent had not proved his case on a balance of probability. Second, that the damages awarded for loss of dependency and loss of expectation of life were inordinately high thereby representing an erroneous estimate.
17. Learned counsel for the appellant submits that the 2nd respondent did not tender any evidence that would have caused the trial court to attribute liability upon the appellant. He submits citing section 107, 108 and 109 of the Evidence Act (Cap. 80) Laws of Kenya that the respondent did not discharge the burden of proof as required by law. Learned counsel has submitted several authorities on that issue. Learned counsel has submitted that neither the evidence of PW 1 nor that of PW 2 established how the accident occurred. In that case, the 1st respondent’s case failed and should have been dismissed by the trial court.
18. On his part, learned counsel for the 1st respondent insisted that the trial court had reached the correct finding that the appellant was liable for the accident. Learned counsel submitted citing authorities that the standard of proof in civil cases is on a balance of probability and that the 1st respondent had discharged the burden of proof on that standard.
19. Learned counsel cited various authorities in which it was held that a police abstract is good evidence that an accident had occurred, the fact that the investigating officer did not attend court to testify or to produce it notwithstanding.
20. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“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 v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
21. The learned trial magistrate found that no doubt the accident occurred as supported by the police abstract produced by PW 1, the police officer. She was also satisfied from the evidence in the police abstract that the appellant was the owner of the accident vehicle KBZ 719X Toyota Van and this fact was not disputed by the appellant.
22. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial magistrate as was stated in the case cited by learned counsel for the appellant of Peters v Sunday Post Ltd. (1958) EA 424, that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
23. This Court will however interfere where the finding is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did. (see the case of Ephantus Mwangi & another v Duncan Wambugu [1984] KECA 54 (KLR)).
24. It was submitted by learned counsel for the appellant that the onus was on the 1st respondent to prove his case and it never shifted to the appellant. I agree that that is the position in law. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmation of the issue as provided under section 107 (1) of the Evidence Act (Cap 80) Laws of Kenya, which provides:
“107. (1) 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.”
25. In this case, the 1st respondent pleaded in his plaint and testified in court that he wished the court to find in his favour that the appellant had through negligence caused the death of his son through the road traffic accident and therefore was liable to pay him damages.
26. However, the only evidence he made available to the court was that the accident had occurred and his son had died as a result thereof. The connection between the death of his son and the accident was had through the police abstract. The contents of the police abstract that the accident did occur and that the deceased was involved and died as a result was not challenged. Similarly, the evidence that the appellant had been charged in a traffic case indicated in the police abstract as Court Case File No. 210 of 2017 was not challenged. The appellant was therefore blamed for the accident.
27. However, neither of the 1st respondent’s witnesses brought forth evidence of his assertions of how the accident occurred. PW 1, the police officer who testified conceded that he was not the investigating officer nor did he visit the scene of the accident. He only attended court to produce the police abstract. He made some assertions on how the accident occurred but that was hearsay. The 1st respondent in his testimony also made some assertions on how the accident occurred but again, conceding that he never witnessed the accident, that means all he said was hearsay.
28. Even then, I am minded to remember that the burden of proof was upon the 1st respondent who wished the court to find in his favour that the appellant had caused the accident by negligence. But section 119 of the Evidence Act permits the court to presume that certain facts are likely to have happened. It says:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
29. In this case, the court is faced with the fact that an accident did occur on the road. Proper human conduct dictates that a vehicle when properly driven on the road will not collide into another just like that. In the case of Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] eKLR the Court of Appeal in the above case said thus:
“Indeed, from the averments in the plaint and from the evidence of Ruth Kendi the doctrine of Res Ipsa Loquitur applied in this case and the appellant did not discharge the burden of showing that the accident occurred without the negligence of its driver. Buses, when properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation.
30. I wish to extrapolate this observation to the circumstances of the present case. In civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which (also cited by learned counsel for the 1st respondent herein) which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
31. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
32. In this case, an accident involving the deceased’s motor cycle and the appellant’s vehicle did occur on the road. However, there is no evidence of how the accident occurred. In the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame. The Court of Appeal said:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of Barclay – Steward Limited & Another v. Waiyaki [1982-88] 1 KAR 1118, this Court said:-
“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”
The Court said further: -
“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”
In Baker v Market Harborough Industrial Co-operative Society Ltd; Wallace v Richards (Leicester) Ltd, Denning L.J. (as he then was) observed inter alia as follows: -
“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…”
See also Welch v. Standard Bank Ltd [1970] EA 115 at 117 and Simon v. Carlo [1970] EA 285. It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame…”
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party, we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
33. Consequently, guided by this decision, I must depart from the finding of the learned trial magistrate that only the appellant was to blame for the accident. On a balance of probability, on the basis of the uncontroverted evidence that indeed the accident occurred and the deceased was involved as a rider of a motor cycle on the road, I find that both driver of the vehicle and the rider of the motor cycle were equally to blame for the accident. Consequently, I would set aside the decision of the trial court apportion blame holly upon the appellant and apportion liability between the driver and the rider in the ratio of 50:50.
34. Assessment of damages is at the discretion of the trial court and this court will not interfere with the assessment of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred as was held by the Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
35. The appeal on assessment of damages was on loss of expectation of life and loss of dependency.
36. On the award of loss of expectation of life learned counsel for the appellant submits that the trial court ought to have awarded as sum of KShs 100,000/= as the conventional sum awarded by courts. That submission is correct. However, considering the young age of the deceased and the fact that he died while in active service of operating his motor cycle business, I do not find that sum to be inordinately high in the circumstances. In the case of Peter Kibogoro Wanjohi V Christine Wakuthi Muriuki & another [2009] KEHC 1852 (KLR) where Justice R. N. Nambuye (as she then was) awarded KShs.150,000/= as damages for loss of expectation of life in a case of a similar nature. Similarly in Agnes Mutinda Ndolo & another v Mboya Wambua & 2 others [2017] KEHC 2990 (KLR) the High Court on appeal found that the award of KShs 150,000/= for loss of expectation of life was reasonable.
37. I have considered the submissions by learned counsels and I find that the learned trial magistrate was correct in her approach to award the KShs 150,000/= general damages for loss of expectation of life.
38. On loss of dependency, learned counsel for the appellant submits that the trial magistrate fell into error when she found that the 1st respondent had proved dependency. It is the appellant’s submission that the 1st respondent had not produced any document such as certificate of birth or letter from the chief to prove that he was the father of the deceased. The appellant did not however challenge the Grant Ad litem issued to the 1st respondent in which his relation to the deceased should have been disclosed before the same was issued. Additionally, the oral evidence of the 1st respondent that the deceased was his son was not challenged. In the circumstances, the learned trial magistrate was correct in believing him to be the father of the deceased. He said the deceased was assisting his family from his boda boda operations. I am satisfied that dependency by the 1st respondent was proved.
39. Learned counsel for the appellant ended his submission on the issue of award of damages by stating that in the event this court holds that dependency was proved then the appellant was content that the award of KShs. 954,112.00 was reasonable in the circumstances. Therefore, that award remains as awarded by the trial court.
40. The award of damages made by the trial court therefore remain such.
41. Having apportioned liability in the ratio of 50:50, the damages assessed by the trial court will be subjected to that ratio.
42. The appellant having succeeded half way to unsettle the judgment of the trial court, I find that with respect to the appellant and the 1st respondent, each party will bear its own costs.
43. Orders accordingly.
Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 23rd day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kioko for the Appellant.
N/A for the 1st Respondent.
N/A for the 2nd Respondent.
Ummu: Court Assistant.