(Being an Appeal against the judgment of Hon. Kiongo Kagenyo, RM at Kwale Magistrates Court delivered on 5/7/2023 in Civil Suit No. 153 of 2021)
JUDGMENT
1. This appeal was filed through a memorandum dated 4/8/2023. The record of appeal is dated 18/9/2023 and filed in court on 21/3/2024.
2. The appeal seeks to challenge the judgment of the learned trial magistrate delivered on 5/7/2023 both on liability and assessment of damages. The 1st respondent suing as the Administrator ad litem of the estate of Mishi Said Makundu (deceased) filed suit for compensation against the appellant and 2nd respondent in a plaint dated 10/9/2021 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.
3. It was the 1st respondent’s case before the trial court that the deceased met her death as a result of negligence on the part of the driver of the appellant’s motor vehicle registration number KCL 478F on 20/4/2021 along the Kombani-Kwale road at Vuga area. The deceased was at the time a passenger in motor vehicle registration number KTWC 544B along the said road when the appellant’s motor vehicle also driven on the said road and place collided with the vehicle in which the deceased was travelling as a result of which the deceased sustained fatal injuries from which she succumbed on 20/4/2021. As a result, the 1st respondent and his family lost the support of the deceased and incurred special damages of KShs 130,550/= as costs incurred for funeral expenses and obtaining letters of administration, police abstract and certificate of death.
4. It was the 1st respondent’s case that the deceased aged 42 years was his wife and they had four children aged between 20 years and 3 years at the time of her death. That she was working as a teacher with the County Government of Kwale earning KShs and the family had lost her support through from the accident.
5. The appellant filed a statement of defence dated 14/12/2021. He denied the 1st respondent’s claim in toto and put her to strict proof. He further pleaded negligence and contribution on the part of the deceased as well as the driver of the vehicle in which the deceased was travelling.
6. As such, the appellant enjoined the owner of the vehicle in which the deceased was travelling, Car & General (Trading) Ltd, who is the 2nd respondent herein, to the suit as a third party.
7. In its statement of defence dated 1/4/2022 the third party denied the claim in toto and put the appellant to strict proof. The third party denied ownership of motor vehicle registration number KTWC 544B nor that the driver was driving it as its servant, employee or agent.
8. The third party pleaded further that it was in the business of selling motor cycles and three-wheeler vehicles on wholesale basis and its name appearing as the registered owner of KTWC 544B it was purely for purposes of compliance with the law under the National Transport and Safety Authority Act (Cap. 404) Laws of Kenya. Otherwise it had sold the suit motor vehicle to Piaggio Centre on 17/1/2020, prior to the accident. It was therefore a stranger to the alleged accident herein as it had already disposed of the vehicle at the time of the accident.
9. The 1st respondent Kassim Said testified in the case as PW 2. He adopted his witness statement dated 15/9/2021 as his evidence-in-chief which basically rehashed his pleadings in the plaint. He added that his wife, the deceased had left home that morning 20/4/2021 going for an interview at Kwale. He went back to sleep but was woken up by many calls which informed him that his wife was involved in an accident where some people had died and others injured and taken to Kwale hospital. He confirmed afterwards that his wife had died in the accident. She was buried the same day. He produced as exhibits supporting his case the various documents listed in her list filed in court alongside her plaint.
10. In cross-examination he said that he was called by people who were at the hospital and none of them had witnessed the accident. He said his wife was going for a promotional interview.
11. PW 1, PC Dominic Asumwa of Diani police station in charge of traffic investigations testified and gave what appeared to be evidence of how the accident occurred but it turned out that he was not the investigating officer and neither had he visited the scene after the accident. What was relevant in is evidence was that there was police abstract (Exh. 1) issued in respect of the accident confirming that the accident did occur and was reported at the police station. He said that the deceased and two other people, among them the driver of the vehicle died on the spot as per the police abstract. He also said that the driver of the other vehicle, a canter lorry was blamed and had been charged in court with three counts of causing death by dangerous driving in case No. MCTR E090 of 2021. He however had absconded court attendance and had never been traced. It was alleged that he had fled to Tanzania.
12. In cross-examination, he said that there were statements of independent witnesses, sketch plan and the investigation diary in the file but he had not produced them in his evidence.
13. The appellant did not offer any evidence at the trial despite being accorded several adjournments to make witnesses available.
14. The third party also opted not to tender any evidence at the trial.
15. That was all the evidence the learned magistrate had to rely upon to decide on liability for the accident.
16. After trial the learned trial magistrate found on the issue of liability that the same had been proved wholly against the appellant as there was no evidence tendered to prove any liability against the 3rd party. He also found that there was no contributory negligence against the 1st respondent.
17. The appellant was dissatisfied with that decision and now appeals to this court on some 17 grounds. However, in submissions learned counsel for the appellant says the grounds can be summarized into two, and I agree with him because as set out, the grounds are numerous but largely argumentative and this goes against the provisions of Order 42 Rule 1(2) which provides “the memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”
18. Learned counsel has summarized the grounds thus: that the learned trial magistrate erred in law and in fact in finding the appellant wholly liable for the accident without sufficient evidence tendered and that the damages awarded were excessive in the circumstances.
19. 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 112 of the Evidence Act (Cap. 80) Laws of Kenya which provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. He submits further that it should be held against the 1st respondent that the failure to adduce evidence of independent witnesses to the accident and the evidence of the investigations should be found against him that if tendered the same would have been detrimental to his case. He has cited various cases, among them the case of Chase Bank (Kenya) Limited v. Cannon Assurance (K) Limited (2019) eKLR to support his submission.
20. Learned counsel has strongly argued the appellant’s case that there was no evidence at all upon which the appellant could be found liable for the accident. He cited various authorities among them that of Benter Atieno Obonyo v Anne Nganga & another [2021] KEHC 7520 (KLR) in which circumstances were similar to the present one and the High Court on appeal affirmed the trial court’s decision to dismiss the case for lack of evidence to prove negligence against the respondent.
21. 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 this burden.
22. 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.
23. Learned counsel for the third party submits that the appellant has not disputed the trial court’s findings that the appellant had failed to adduce any evidence against the third party and therefore its case against it was not proved. He was therefore satisfied with the trial court’s findings on the issue of liability as between the defendant and the third party.
24. 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)”.
25. The learned trial magistrate found that no doubt the accident occurred as supported by the police abstract produced by PW 1 the police officer. He was also satisfied and there is that the appellant was the owner of the accident vehicle KCL 478F and this fact was not disputed.
26. 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.”
27. 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)).
28. 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.”
29. 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 wife through the road traffic accident and therefore was liable to pay him damages.
30. However, the only evidence he made available to the court was that the accident had occurred and his wife had died as a result thereof. The connection between the death of his wife 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.
31. The appellant on his part initially denied the occurrence of the accident but then pleaded in the alternative that if indeed the accident had occurred then the deceased as well as the driver of the other motor vehicle KTWC 544B were each to blame in their respective capacities as passenger and driver of the vehicle in which the deceased was travelling. He set out particulars of negligent against each of them. In that case, issues were joined on such pleadings. In the event each party was under a duty to prove their own assertions.
32. However, neither of the parties brought forth evidence of their respective assertions of how the accident occurred. 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’s driver 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.”
33. 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.
34. 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.”
35. 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.”
36. In this case, a collision or accident involving two moving vehicles did occur. 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.”
37. 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, I find that both drivers were equally to blame and apportion liability between the two drivers in the ratio of 50:50. The appellant being the owner of one of the vehicles is vicariously liable for the negligence of his driver.
38. 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 in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR).
39. I have considered the submissions by learned counsels and I find that the learned trial magistrate was correct in his approach.
40. Learned counsel for the appellant submits that the trial magistrate fell into error when he applied the gross salary in computation of the multiplicand. That is not correct because the learned trial magistrate properly found the gross salary of the deceased to have been KShs 33,780/= and subtracted from the same statutory deductions of KShs 5,403/= and found a net sum of KShs 28,377/= which he applied as the multiplicand. I have looked at the pay slip and I see that the statutory deductions were PAYE KShs 930/=, pension KShs 3,373/=, NSSF KShs 200/= and NHIF KShs 900/=. The submission by learned counsel that “other expenses” other than the statutory deductions, which from the pay slip were loan repayments should also have been deducted from the net salary is not correct.
41. On the multiplier, learned counsel submits that the learned magistrate applied a multiplier of 18 years for the deceased who was 42 years old. He proposes a multiplier of 10-12 years. In the trial court, the appellant had proposed a multiplier of 10 years.
42. Learned counsel for the 1st respondent on his part submits that the multiplier of 18 years was reasonable and this court should not interfere with it.
43. Learned counsels have provided authorities each in support of his position.
44. The decisions cited herein are varied, in support of the position taken by each counsel. On that issue, I will find it appropriate not to interfere with the discretion of the learned trial magistrate.
45. There being no challenge on the other heads of damages, they remain as awarded by the trial court.
46. Having apportioned liability in the ratio of 50:50, the damages assessed by the trial court being KShs 4,306,288/= will be subjected to that ratio making the award of damages to the 1st respondent KShs 2,306,288/=.
47. 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. However, with respect to the 2nd respondent, the appellant did not advance any case against it on appeal and there was no reason why it had to drag it into this appeal seeing that its case against it had been dismissed by the trial court and it was not appealing that decision. Consequently, the costs for the 2nd respondent will be borne by the appellant.
48. Orders accordingly.
Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 21st day of March 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Chege (Ms) h/b for Kinyanjui for the Appellant.
Bwika for the 1st Respondent.
Ndung’u h/b for Kabiru for the 2nd Respondent.
Johnson: Court Assistant.
JUDGMENT
1. This appeal was filed through a memorandum dated 4/8/2023. The record of appeal is dated 18/9/2023 and filed in court on 21/3/2024.
2. The appeal seeks to challenge the judgment of the learned trial magistrate delivered on 5/7/2023 both on liability and assessment of damages. The 1st respondent suing as the Administrator ad litem of the estate of Mishi Said Makundu (deceased) filed suit for compensation against the appellant and 2nd respondent in a plaint dated 10/9/2021 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.
3. It was the 1st respondent’s case before the trial court that the deceased met her death as a result of negligence on the part of the driver of the appellant’s motor vehicle registration number KCL 478F on 20/4/2021 along the Kombani-Kwale road at Vuga area. The deceased was at the time a passenger in motor vehicle registration number KTWC 544B along the said road when the appellant’s motor vehicle also driven on the said road and place collided with the vehicle in which the deceased was travelling as a result of which the deceased sustained fatal injuries from which she succumbed on 20/4/2021. As a result, the 1st respondent and his family lost the support of the deceased and incurred special damages of KShs 130,550/= as costs incurred for funeral expenses and obtaining letters of administration, police abstract and certificate of death.
4. It was the 1st respondent’s case that the deceased aged 42 years was his wife and they had four children aged between 20 years and 3 years at the time of her death. That she was working as a teacher with the County Government of Kwale earning KShs and the family had lost her support through from the accident.
5. The appellant filed a statement of defence dated 14/12/2021. He denied the 1st respondent’s claim in toto and put her to strict proof. He further pleaded negligence and contribution on the part of the deceased as well as the driver of the vehicle in which the deceased was travelling.
6. As such, the appellant enjoined the owner of the vehicle in which the deceased was travelling, Car & General (Trading) Ltd, who is the 2nd respondent herein, to the suit as a third party.
7. In its statement of defence dated 1/4/2022 the third party denied the claim in toto and put the appellant to strict proof. The third party denied ownership of motor vehicle registration number KTWC 544B nor that the driver was driving it as its servant, employee or agent.
8. The third party pleaded further that it was in the business of selling motor cycles and three-wheeler vehicles on wholesale basis and its name appearing as the registered owner of KTWC 544B it was purely for purposes of compliance with the law under the National Transport and Safety Authority Act (Cap. 404) Laws of Kenya. Otherwise it had sold the suit motor vehicle to Piaggio Centre on 17/1/2020, prior to the accident. It was therefore a stranger to the alleged accident herein as it had already disposed of the vehicle at the time of the accident.
9. The 1st respondent Kassim Said testified in the case as PW 2. He adopted his witness statement dated 15/9/2021 as his evidence-in-chief which basically rehashed his pleadings in the plaint. He added that his wife, the deceased had left home that morning 20/4/2021 going for an interview at Kwale. He went back to sleep but was woken up by many calls which informed him that his wife was involved in an accident where some people had died and others injured and taken to Kwale hospital. He confirmed afterwards that his wife had died in the accident. She was buried the same day. He produced as exhibits supporting his case the various documents listed in her list filed in court alongside her plaint.
10. In cross-examination he said that he was called by people who were at the hospital and none of them had witnessed the accident. He said his wife was going for a promotional interview.
11. PW 1, PC Dominic Asumwa of Diani police station in charge of traffic investigations testified and gave what appeared to be evidence of how the accident occurred but it turned out that he was not the investigating officer and neither had he visited the scene after the accident. What was relevant in is evidence was that there was police abstract (Exh. 1) issued in respect of the accident confirming that the accident did occur and was reported at the police station. He said that the deceased and two other people, among them the driver of the vehicle died on the spot as per the police abstract. He also said that the driver of the other vehicle, a canter lorry was blamed and had been charged in court with three counts of causing death by dangerous driving in case No. MCTR E090 of 2021. He however had absconded court attendance and had never been traced. It was alleged that he had fled to Tanzania.
12. In cross-examination, he said that there were statements of independent witnesses, sketch plan and the investigation diary in the file but he had not produced them in his evidence.
13. The appellant did not offer any evidence at the trial despite being accorded several adjournments to make witnesses available.
14. The third party also opted not to tender any evidence at the trial.
15. That was all the evidence the learned magistrate had to rely upon to decide on liability for the accident.
16. After trial the learned trial magistrate found on the issue of liability that the same had been proved wholly against the appellant as there was no evidence tendered to prove any liability against the 3rd party. He also found that there was no contributory negligence against the 1st respondent.
17. The appellant was dissatisfied with that decision and now appeals to this court on some 17 grounds. However, in submissions learned counsel for the appellant says the grounds can be summarized into two, and I agree with him because as set out, the grounds are numerous but largely argumentative and this goes against the provisions of Order 42 Rule 1(2) which provides “the memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”
18. Learned counsel has summarized the grounds thus: that the learned trial magistrate erred in law and in fact in finding the appellant wholly liable for the accident without sufficient evidence tendered and that the damages awarded were excessive in the circumstances.
19. 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 112 of the Evidence Act (Cap. 80) Laws of Kenya which provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. He submits further that it should be held against the 1st respondent that the failure to adduce evidence of independent witnesses to the accident and the evidence of the investigations should be found against him that if tendered the same would have been detrimental to his case. He has cited various cases, among them the case of Chase Bank (Kenya) Limited v. Cannon Assurance (K) Limited (2019) eKLR to support his submission.
20. Learned counsel has strongly argued the appellant’s case that there was no evidence at all upon which the appellant could be found liable for the accident. He cited various authorities among them that of Benter Atieno Obonyo v Anne Nganga & another [2021] KEHC 7520 (KLR) in which circumstances were similar to the present one and the High Court on appeal affirmed the trial court’s decision to dismiss the case for lack of evidence to prove negligence against the respondent.
21. 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 this burden.
22. 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.
23. Learned counsel for the third party submits that the appellant has not disputed the trial court’s findings that the appellant had failed to adduce any evidence against the third party and therefore its case against it was not proved. He was therefore satisfied with the trial court’s findings on the issue of liability as between the defendant and the third party.
24. 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)”.
25. The learned trial magistrate found that no doubt the accident occurred as supported by the police abstract produced by PW 1 the police officer. He was also satisfied and there is that the appellant was the owner of the accident vehicle KCL 478F and this fact was not disputed.
26. 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.”
27. 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)).
28. 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.”
29. 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 wife through the road traffic accident and therefore was liable to pay him damages.
30. However, the only evidence he made available to the court was that the accident had occurred and his wife had died as a result thereof. The connection between the death of his wife 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.
31. The appellant on his part initially denied the occurrence of the accident but then pleaded in the alternative that if indeed the accident had occurred then the deceased as well as the driver of the other motor vehicle KTWC 544B were each to blame in their respective capacities as passenger and driver of the vehicle in which the deceased was travelling. He set out particulars of negligent against each of them. In that case, issues were joined on such pleadings. In the event each party was under a duty to prove their own assertions.
32. However, neither of the parties brought forth evidence of their respective assertions of how the accident occurred. 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’s driver 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.”
33. 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.
34. 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.”
35. 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.”
36. In this case, a collision or accident involving two moving vehicles did occur. 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.”
37. 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, I find that both drivers were equally to blame and apportion liability between the two drivers in the ratio of 50:50. The appellant being the owner of one of the vehicles is vicariously liable for the negligence of his driver.
38. 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 in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR).
39. I have considered the submissions by learned counsels and I find that the learned trial magistrate was correct in his approach.
40. Learned counsel for the appellant submits that the trial magistrate fell into error when he applied the gross salary in computation of the multiplicand. That is not correct because the learned trial magistrate properly found the gross salary of the deceased to have been KShs 33,780/= and subtracted from the same statutory deductions of KShs 5,403/= and found a net sum of KShs 28,377/= which he applied as the multiplicand. I have looked at the pay slip and I see that the statutory deductions were PAYE KShs 930/=, pension KShs 3,373/=, NSSF KShs 200/= and NHIF KShs 900/=. The submission by learned counsel that “other expenses” other than the statutory deductions, which from the pay slip were loan repayments should also have been deducted from the net salary is not correct.
41. On the multiplier, learned counsel submits that the learned magistrate applied a multiplier of 18 years for the deceased who was 42 years old. He proposes a multiplier of 10-12 years. In the trial court, the appellant had proposed a multiplier of 10 years.
42. Learned counsel for the 1st respondent on his part submits that the multiplier of 18 years was reasonable and this court should not interfere with it.
43. Learned counsels have provided authorities each in support of his position.
44. The decisions cited herein are varied, in support of the position taken by each counsel. On that issue, I will find it appropriate not to interfere with the discretion of the learned trial magistrate.
45. There being no challenge on the other heads of damages, they remain as awarded by the trial court.
46. Having apportioned liability in the ratio of 50:50, the damages assessed by the trial court being KShs 4,306,288/= will be subjected to that ratio making the award of damages to the 1st respondent KShs 2,306,288/=.
47. 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. However, with respect to the 2nd respondent, the appellant did not advance any case against it on appeal and there was no reason why it had to drag it into this appeal seeing that its case against it had been dismissed by the trial court and it was not appealing that decision. Consequently, the costs for the 2nd respondent will be borne by the appellant.
48. Orders accordingly.
Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 21st day of March 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Chege (Ms) h/b for Kinyanjui for the Appellant.
Bwika for the 1st Respondent.
Ndung’u h/b for Kabiru for the 2nd Respondent.
Johnson: Court Assistant.