HIGH COURT CIVIL APPEAL CASE NO. E042 OF 2024
SAMUEL KURIA WAINUKU…………………………….….APPELLANT
VERSUS
PAUL MUMATHI…………………………….………..1 ST RESPONDENT
TIMTRADE CONVERTONS LIMITED…………….2 ND RESPONDENT
JUDGEMENT
1. The Appellant herein SAMUEL KURIA WAINUKU filed the Memorandum
of Appeal dated 18 th July 2024 seeking for orders that
“1. The Appeal be allowed and the judgment and consequential orders delivered on 15 th July 2024 be set aside.
2. Costs of the Appeal and costs in the CIVIL CASE NO. E080 of 2023 be awarded to the Appellant.”
2. The Respondents PAUL MUMATHI and TIMTRADE CONVERTONS LIMITED opposed the appeal.
BACKGROUND
3. This appeal arises from Karatina CMCC No. E080 of 2023 in which by way of a Plaint dated 8 th August 2023 , the Appellant sought the following orders;-
“(a) Damages
(b) Special damages Kshs. 2,550/=
(c) Costs of this suit
(d) Interest at Court rates on (a) and (b) above.”
4. The Respondents in opposing the suit filed their statement of defence dated 26 th September 2023 .
5. The Appellants suit arose from a road traffic accident which occurred on 31 st May 2023 . The Appellants evidence was that on the material day he was lawfully standing on the footpath off the Chaka Magarima Road at the Hombe area when the 1 st Respondent negligently and recklessly drove the motor vehicle Registration KBM 477 V from Chaka direction toward Magarima. That the vehicle veered off the road and hit the Appellant where he was standing.
6. That as a result of the accident the Appellant sustained compound
fracture of the right thumb. The Appellant then filed the suit
seeking general and special damages.
7. The Respondents did not call any evidence during the trial.
8. On 15 th July 2024 Hon. E KANYIRI, Principal Magistrate delivered her judgment in which she dismissed the Appellants claim in its entirety. Being aggrieved by this decision the Appellant filed this Appeal, which is premised upon the following grounds;-
“1. That the Learned Magistrate erred in facts and law by failing to appreciate evidence produced on a balance of probability and dismissed the suit.
2. The Learned Magistrate erred in facts and law by failing to consider the evidence on record and appreciate the fact that the Respondents did not controvert the Appellants evidence.
3. The Learned Magistrate applied the wrong principles in dismissing the Appellant’s claim.
4. The Learned Magistrate erred in facts and law in failing to appreciate the totality of the weight of the evidence adduced by the Appellant.
5. The Learned Magistrate erred in fact and law
in failing to find that the respondents owed the appellant a duty of care.
6. The Learned Magistrate erred in fact and law in faulting the appellant of giving contradicting statements during examination in chief and that in the witness statement, yet the appellant had admitted and marked his witness statement as his evidence in chief.
7. The Learned Magistrate erred in fact and law in failing to attribute 100% liability on the Respondents.”
ANALYSIS AND DETERMINATION
9. I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties.
10. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:-
This being a first appeal it is trite law, that this Court is
not bound necessarily to accept the findings of fact by the court below and 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 is 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 allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L
As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424 . In its own words:-
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…..”
11. On the question of liability the Appellant submits that the learned trial magistrate ought to have made a finding of 100% liability against the Respondent the driver of the motor vehicle Registration No. KBM 477V . He faults the decision of the trial court to dismiss his claim.
12. In the Plaint at Paragraph 6, the Appellant alleged that the Motor vehicle veered off the road and hit him where he was lawfully standing on the footpath.
13. It is trite law that he who alleges must prove. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides that:-
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts must prove that those facts exists.
(2) When a person is bound to prove the existence of
any fact it is said that the burden of proof lies on that person.”
14. The Appellant claimed that the vehicle in question was being driven negligently. However he did not elaborate on what was reckless in the manner in which said vehicle was being driven. The mere fact that an accident occur does not amount to proof of negligence.
15. As noted by the trial magistrate the evidence of the Appellant was marred by material contradictions. In his statement the Appellant stated that when the vehicle veered off its lane the passenger door swung open and hit him. However in his testimony before the court while being cross-examined the Appellant stated that it was the back door of the Lorry which swung open and hit him. Which was which? This contradiction casts doubt on the veracity of the Appellants evidence.
16. Although the Appellant produced as an exhibit the police abstract dated 5 th July 2023 , he did not call as a witness the officer who prepared the said abstract. The abstract is not proof that an accident occurred neither does it prove who was to blame for the accident. Indeed in the police abstract produced by the appellant no party
was blamed for the accident. Therefore the abstract did not assist the
Appellant’s case in any way.
17. Finally I find that the failure to call the officer who visited the scene was also a grave omission. It was essential to call this officer to produce the sketch plan which would enable the court to have a graphic visualization of the scene in order to determine who was at fault.
18. Finally I do agree with the trial magistrate that the Appellant failed to prove his case on a balance of probability. I find no merit in this appeal and the same is dismissed in its entirety. Costs to be met by the Appellant.
Dated in Nyeri this 10 th day of July 2026.
HIGH COURT CIVIL APPEAL CASE NO. E042 OF 2024 JUDGEMENT Page 8 of 8
SAMUEL KURIA WAINUKU…………………………….….APPELLANT
VERSUS
PAUL MUMATHI…………………………….………..1 ST RESPONDENT
TIMTRADE CONVERTONS LIMITED…………….2 ND RESPONDENT
JUDGEMENT
1. The Appellant herein SAMUEL KURIA WAINUKU filed the Memorandum
of Appeal dated 18 th July 2024 seeking for orders that
“1. The Appeal be allowed and the judgment and consequential orders delivered on 15 th July 2024 be set aside.
2. Costs of the Appeal and costs in the CIVIL CASE NO. E080 of 2023 be awarded to the Appellant.”
2. The Respondents PAUL MUMATHI and TIMTRADE CONVERTONS LIMITED opposed the appeal.
BACKGROUND
3. This appeal arises from Karatina CMCC No. E080 of 2023 in which by way of a Plaint dated 8 th August 2023 , the Appellant sought the following orders;-
“(a) Damages
(b) Special damages Kshs. 2,550/=
(c) Costs of this suit
(d) Interest at Court rates on (a) and (b) above.”
4. The Respondents in opposing the suit filed their statement of defence dated 26 th September 2023 .
5. The Appellants suit arose from a road traffic accident which occurred on 31 st May 2023 . The Appellants evidence was that on the material day he was lawfully standing on the footpath off the Chaka Magarima Road at the Hombe area when the 1 st Respondent negligently and recklessly drove the motor vehicle Registration KBM 477 V from Chaka direction toward Magarima. That the vehicle veered off the road and hit the Appellant where he was standing.
6. That as a result of the accident the Appellant sustained compound
fracture of the right thumb. The Appellant then filed the suit
seeking general and special damages.
7. The Respondents did not call any evidence during the trial.
8. On 15 th July 2024 Hon. E KANYIRI, Principal Magistrate delivered her judgment in which she dismissed the Appellants claim in its entirety. Being aggrieved by this decision the Appellant filed this Appeal, which is premised upon the following grounds;-
“1. That the Learned Magistrate erred in facts and law by failing to appreciate evidence produced on a balance of probability and dismissed the suit.
2. The Learned Magistrate erred in facts and law by failing to consider the evidence on record and appreciate the fact that the Respondents did not controvert the Appellants evidence.
3. The Learned Magistrate applied the wrong principles in dismissing the Appellant’s claim.
4. The Learned Magistrate erred in facts and law in failing to appreciate the totality of the weight of the evidence adduced by the Appellant.
5. The Learned Magistrate erred in fact and law
in failing to find that the respondents owed the appellant a duty of care.
6. The Learned Magistrate erred in fact and law in faulting the appellant of giving contradicting statements during examination in chief and that in the witness statement, yet the appellant had admitted and marked his witness statement as his evidence in chief.
7. The Learned Magistrate erred in fact and law in failing to attribute 100% liability on the Respondents.”
ANALYSIS AND DETERMINATION
9. I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties.
10. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:-
This being a first appeal it is trite law, that this Court is
not bound necessarily to accept the findings of fact by the court below and 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 is 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 allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L
As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424 . In its own words:-
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…..”
11. On the question of liability the Appellant submits that the learned trial magistrate ought to have made a finding of 100% liability against the Respondent the driver of the motor vehicle Registration No. KBM 477V . He faults the decision of the trial court to dismiss his claim.
12. In the Plaint at Paragraph 6, the Appellant alleged that the Motor vehicle veered off the road and hit him where he was lawfully standing on the footpath.
13. It is trite law that he who alleges must prove. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides that:-
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts must prove that those facts exists.
(2) When a person is bound to prove the existence of
any fact it is said that the burden of proof lies on that person.”
14. The Appellant claimed that the vehicle in question was being driven negligently. However he did not elaborate on what was reckless in the manner in which said vehicle was being driven. The mere fact that an accident occur does not amount to proof of negligence.
15. As noted by the trial magistrate the evidence of the Appellant was marred by material contradictions. In his statement the Appellant stated that when the vehicle veered off its lane the passenger door swung open and hit him. However in his testimony before the court while being cross-examined the Appellant stated that it was the back door of the Lorry which swung open and hit him. Which was which? This contradiction casts doubt on the veracity of the Appellants evidence.
16. Although the Appellant produced as an exhibit the police abstract dated 5 th July 2023 , he did not call as a witness the officer who prepared the said abstract. The abstract is not proof that an accident occurred neither does it prove who was to blame for the accident. Indeed in the police abstract produced by the appellant no party
was blamed for the accident. Therefore the abstract did not assist the
Appellant’s case in any way.
17. Finally I find that the failure to call the officer who visited the scene was also a grave omission. It was essential to call this officer to produce the sketch plan which would enable the court to have a graphic visualization of the scene in order to determine who was at fault.
18. Finally I do agree with the trial magistrate that the Appellant failed to prove his case on a balance of probability. I find no merit in this appeal and the same is dismissed in its entirety. Costs to be met by the Appellant.
Dated in Nyeri this 10 th day of July 2026.
HIGH COURT CIVIL APPEAL CASE NO. E042 OF 2024 JUDGEMENT Page 8 of 8