Solomon Aderi Mboya VS UniversityOf Maseno AND Fredrick Okaka Ouma Solomon Aderi Mboya VS UniversityOf Maseno AND Fredrick Okaka Ouma

T
INTRODUCTION

The appeal arised out of a decision by the learned Honorable L.AKOTH P.M delivered on 18^th October 2021in Kisumu CMCC No. 321 of 2020 in which she dismissed the appellants claim.
The appellant dissatisfied with the decision has moved to this court an appeal raising the following grounds :-
That the learned trial magistrate erred in law and fact by dismissing the Appellant's claim.
That the learned trial magistrate erred in law and fact in disregarding the evidence adduced by the Appellant that the accident was not caused by the Appellant's driver.
That the learned trial magistrate erred in law and fact in failing to consider the evidence of PW4 on record and a police abstract produced as PMF-1 and the contents of the police file clearly indicating that Motor Vehicle KCE 913D was to blame for the accident.
That the learned trial magistrate erred in law and fact in failing to consider the evidence of PW'1 & PW2 on record indicating that Motor Vehicle Registration Number KCE 913D was to blame for the accident.
That the learned trial magistrate misdirected herself in determining that the Appellant was to blame for the accident, which fact was against the weight of the evidence on record.
That the learned trial magistrate erred in law and fact in dismissing the Appellant's case in the absence of any evidence disputing liability by the Respondents.
That the learned trial magistrate erred in law and fact in believing in whole the testimony of the Defendants/Respondents and disregarding the testimony and evidence of the Plaintiff/appellant and his witnesses.
That the learned trial magistrate erred in law and fact in failing to consider the Appellant's submissions on liability and quantum.
That the learned trial magistrate's judgment was quite brief and did not disclose any proper reasoning in reaching the decision and was thus unjust against the weight of the evidence, submissions and authorities relied upon by the Appellant and was based upon misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
The issues that emerge from the grounds are:-
Whether the decision of the learned Honorable magistrate on the issue of liability could stand in the face of the evidence adduced by the appellant and his witnesses.
Whether in the absence of any evidence challenging liability by the defendant the trial court could proceed to dismiss the appellants claim.
What is the amount of damages that ought to have been awarded to the appellant had the court allowed his claim?
Who should bear the costs of suit ?
The parties have each filed written submissions and this court has duly considered the same.

APPELLANT’S CASE

The appellants case is that on or about the 18^th April 2020 at about 2:00pm the appellant and his driver were driving at the junction of Kisumu Busia road an old airport road round about. According to the appellant he entered into the round about and when they were about to exit the same the 2^nd respondent who was acting under instruction of the 1^st respondent negligently and carelessly entered into the appellants party inside the roundabout thereby knocking and accossioning damage on the appellants motor vehicle.
In support of the appellants case the appellant called four witnesses .
According to PW1 , PW2, and PW3 the driver who was to blame for the occurrence of the accident was the driver of motor vehicle KCE 913 Q failing to give way to the highway users.
PW4 P.C George Otieno attached to Kisumu Central Base produced the police abstract. The officer testified that the driver of motor vehicle KCE 913Q which belonged to the 1^st respondent was to be charged for careless driving.
According to the appellant the evidence presented by him in support of his case was not controverted by the respondents thus the learned Honorable magistrate erred in dismissing his case.
The appellant contends that he discharged the burden of proof and that the defendants (respondents) having failed to offer any evidence to displace the same, the trial court should have reached a finding that the respondents were to blame for the accident and that the appellant was entitled to compensation.
On the issue of the quantum of damages the appellant submitted that they had produced the assessment report as proof of the damages which were specifically pleaded in the plaint. The appellant in support of that submission cited the case of Kenya Industrial Industries Ltd Vs. Lee Enterprises Ltd (2009) KLR 135 where the court stated:

"Generally speaking, the normal measure of damages for damage to goods is the amount by which the value of the goods has been diminished. The cost of repair is prima facie the measure of diminution in value of the goods and therefore the correct measure of loss suffered. Where, however, the goods are destroyed, the owner is entitled to restitution in integrum and the normal measure of damages is the cost of replacement of goods, that is the market value at the time and place of destruction."

Finally on the issue of costs the appellant urged the court to find that costs follow the event and award the same to him.

RESPONDENT’S CASE.

The respondents called one Fredrick Okaka Ouma who testified that on the material day of the accident he was the driver of a motor vehicle whose details he did not give but he alleged that that the motor vehicle KBM 166E a probox dark blue hit him on the right in a round about.
He maintained that he was ahead of the motor vehicle KBM 166E and that’s why the vehicle hit his motor vehicle on the right side of the rear door.
According to the witness if the driver of the motor vehicle had applied brakes the accident wouldn’t have happened.
The defence witness concluded his evidence by stating that “my car was hit from the center of the back right door to the tyre which caused a puncture”
The respondents submitted that the evidence tendered by the appellant was full of contradiction thus the trial court was right in rejecting the same.
The respondent highlighted the part on the evidence by PW1 who testified that PW2 his driver did not see the motor vehicle and that had he seen it he would have stopped.
According to the respondents the contradictions in the evidence of the appellant and his witness were material thus the trial court was right in dismissing the appellants claim.

ANALYSIS AND DETERMINATION

The duty of this court as a first appellate court is well spelt out in the case of Selle Vs Associated Motor Boat Co. Ltd (1968) EA 123 in which the court stated:

"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."

This court has closely looked at the record and appreciated the evidence as recorded by the trial court.
Unlike the learned Honorable magistrate this court did not have the advantage of seeing the witnesses to assess the demeanor of the witnesses but certainly the court was able to pick some very material aspects of the evidence that point to the driver of the appellant as having been negligent in the manner he drove.
The driver testified and admitted that the accident occurred during the day and that he did not see the motor vehicle KCE 913D until the point of impact.
That evidence alone points to a driver that was on the road driving without due care and attention to other road users.
The appellant testified as PW1 and stated in cross-examination that “I am the one who saw the other car not the driver. If my driver would have seen the other motor vehicle he would have stopped. The back right door of KCE hit the KBM on the front bumper.”
The evidence by the appellant corroborates the defence evidence that the driver of KBM the motor vehicle owned by the appellant did not stop and had he stopped the accident would have been avoided.
The witness PW4 Police officer is not the one who visited the scene and simply told the court what he read from the OB entry and the Police Abstract.
The witness who would have been of help to the court in establishing who was to blame was one P.C Kinyua who never testified.
The appellant was under duty to avail PC Kinyua and in appreciation of that fact on 28/6/2021 the appellant obtained witness summons for P.C Kinyua but the court was never told why P.C Kinyua never testified. The mere fact of him being on transfer could not justify the substitution of the witness considering that he had crucial evidence.
For instance why P.C Kinyua would have been able to tell the court on what basis he was blaming the 2^nd respondent for the accident in the face of the facts presented by the rest of the witnesses.
Further it would have been for P.C Kinyua to tell the court if indeed he was serious in his finding that the 2^nd respondent was to blame for the accident why was he not charged with careless driving as PW4 would have wanted to prove.
It is the view and finding of this court that the appellant did not discharge the evidential burden placed on him under Section 109 of the Evidence Act.
The appellant in this matter stood the risk of loosing the claim by failing to call PC Kinyua to testify and indeed the trial court did properly reject his claim.
In SUPREME COURT PETITION NO. 26 OF 2019 BETWEEN MONICA WANGU WAMWERE & 5 OTHERS & THE ATTORNEY-GENERAL, the learned judges quoted Lord Denning J. who, in Miller vs. Minister of Pensions (1947) 2 ALL ER 372 - Petition Nos. 26, 34 & 35 of 2019 33, had this to say on the matter:

"Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, party bearing the burden of proof will lose, because the requisite standard will not have been attained.'

In the end this court finds that the appellant did not prove his case on a balance or probabilities thus the decision of the learned Honorable magistrate is hereby upheld.
The appeal is therefore dismissed with costs to the respondents.
It is so ordered.

Solomon Aderi Mboya VS UniversityOf Maseno AND Fredrick Okaka Ouma

Details

Related decisions