1. This appeal emanates from the judgement and decree of Hon. S.A. Opande, Principal Magistrate delivered on 21st July, 2022 in Nairobi Milimani CMCC No. E8905 of 2021.
2. The grounds of appeal presented by the Appellant vide the Memorandum of Appeal dated 8th November, 2022 upon which he seeks to upset the trial court’s finding are as follows:
1. That the learned Magistrate erred in law and in fact in holding that the Appellant was liable for the accident.
2. That the learned Magistrate erred in law and in fact in disregarding the Appellant’s investigation on whether the Appellant was involved in the accident.
3. That the learned Magistrate erred in law and in fact in by ignoring the inconsistencies in the 1st Respondent’s suit and evidence adduced during the hearing.
4. That the learned Magistrate erred in law and in fact by ignoring the Appellant’s evidence adduced during the hearing.
5. That the learned Magistrate erred in law in disregarding the Appellant’s submissions on liability.
6. That the learned Magistrate erred in law and in fact in awarding the 1st Respondent damages as the Appellant was not liable at all for the accident.
7. That the learned Magistrate grossly misdirected herself in treating the Appellant’s submissions on liability superficially thus arriving at an erroneous decision on liability and quantum.
3. The Appellant proposes that the appeal be allowed and the judgement of the trial court be set aside and that the costs of the suit before the lower court and the appeal be awarded to the Appellant.
4. This court directed that the appeal proceeds by way of written submissions and gave the parties herein timelines for filing their submissions. Both parties filed their respective submissions. It is instructive from the Appellant’s submissions that the appeal is preferred on both liability and quantum.
5. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Sielle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the relevant evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
6. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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 demeanour of a witness is inconsistent with the evidence in the case generally.”
7. The suit before the lower court, as per the plaint dated 11th May, 2021 was one based on tort whereby the 1st Respondent herein (the Plaintiff before the trial court) claimed and pleaded that he sustained injuries in a road traffic accident that occurred on 14th October, 2020, for which he held the Appellant and the 2nd Respondent (the 1st and 2nd Defendants in the trial court, respectively) liable.
8. The 1st Respondent pleaded that on 14th October, 2020, he was walking along Outering Road when motor vehicle registration number KBN 432C was so carelessly and/or negligently driven and/or managed that it lost control, veered off the road and knocked down the 1st Respondent as a result of which he sustained serious bodily injuries.
9. The 1st Respondent pleaded that at the time of the accident, the Appellant was the registered owner, beneficial owner, insured owner and/or owner in possession of the said motor vehicle while the 2nd Respondent was the driver thereof.
10. The suit was resisted by the Appellant and the 1st Respondent who filed an amended statement of defence dated 31st March, 2022. In the said defence, the Appellant denied that motor vehicle registration number KBN 432C was involved in the accident as alleged or at all and stated that he was away at Ol Karia Geothermal Plant and in possession of the vehicle at the time of the alleged accident. The Appellant thus denied liability.
11. The second Respondent did not participate in the matter before the trial court.
12. The 1st Respondent testified before the trial court as PW1 and adopted his statement dated 11th May, 2021 as his testimony-in-chief. In his statement, the 1st Respondent stated that that he was hit by motor vehicle registration number KBN 432C after the same lost control due to the negligence of the driver, who drove and/or managed the same carelessly and at a high speed. As a result, he sustained serious injuries.
13. The 1st Respondent produced the following documents before the trial court in support of his case:
- Medical report prepared by Dr. Cyprianus Okoth Okere and a receipt for the same for Ksh.5,000/-.
- Medical report from Mama Lucy Kibaki Hospital.
- Attendance card from Mama Lucy Kibaki Hospital.
- Treatment notes from Huruma Nursing Home.
- Receipts in support of special damages.
- Copy of records and receipt for the same for Ksh.550/-.
- Copy of demand and notice to insurers.
- P3 form.
- Police abstract.
14. Upon being cross examined, the 1st Respondent told the trial court that it is the driver of the motor vehicle that hit him who took him to hospital and “dumped” him there and ran away. He stated that he could not remember the said driver. He further stated that the vehicle was a Toyota Fielder, green in colour.
15. On being asked what the registration number of the vehicle that hit him was, he stated that it was KBN 439C, contrary to his pleadings where it was stated to be KBN 432C. There was no explanation offered for such departure, but the 1st Appellant stated that his eyes had a problem.
16. The Appellant testified before the trial court and adopted the contents of his statement dated 15th December, 2021 as his evidence-in-chief. He stated in his statement that he worked as a Reservoir Engineer at Ol Karia in Naivasha.
17. The Appellant stated that he was the registered owner of motor vehicle registration number KBN 432C Toyota Premio and categorically denied that his vehicle was involved in the accident, which he impugned, and stated that the vehicle was in his possession at Ol Karia at the time of the alleged accident and that he was the only one who drove it at the time. He denied driving it along Outering Road as was claimed by the 1st Respondent or at all.
18. The Appellant stated that the 2nd Respondent, who the 1st Respondent alleged was the driver of the vehicle at the time the accident occurred, was not known to him.
19. The Appellant called Patrick Owino who testified as DW2 and told the trial court that he was an investigator working with Counter Strike Limited, who were instructed to conduct investigations into the alleged accident. The witness told the court that he interviewed the 1st Respondent and the latter was unable to describe the person who was driving the vehicle when the alleged accident occurred.
20. DW2 stated that the 1st Respondent told him that the vehicle that hit him was a Toyota Fielder, yet the Appellant’s vehicle was a Toyota Premio. In his report, DW2 concluded that motor vehicle registration number KBN 432C was not involved in the accident.
21. In the court’s judgement rendered on 21st July, 2022, the learned trial Magistrate, on the issue as to whether the Appellant’s vehicle was involved in the accident, and that of liability, stated as follows:
“The Defendant one Urbanus Kioko Mbithi said that on the 14th October, 2020, he was in his office in Ol Karia where he ordinarily worked as a reservoir engineer. The Defendant denied in the involvement of the said accident. He denied ever meeting the Plaintiff before.
DW2 was Patrick Owino from Counter Strile Limited, an investigation company. He said they were contracted to investigate an accident involving motor vehicle KBN 432C by Geminia Insurance.
DW2 said that he interviewed the Plaintiff who could not describe the man who was driving the motor vehicle. The Plaintiff again described the motor vehicle as having been a fielder yet the Defendant’s car was a premio. At Kariobangi Police station where the initial report was made, the Plaintiff had reported that he was a handcart pusher, only to turn later and claim that he was a shoe shiner.
I have considered the evidence tendered. In as much as the Defendant pleads an alibi, that he was not in Nairobi, leave alone the scene of the accident, he has not adduced evidence to corroborate that he was out of Nairobi on the material day. He has not explained for the court to make a finding that the content of the OB. No. 89/14/10/2020 were manufactured. The motor vehicle the subject of the accident is registered in the Defendant’s name, unless he demonstrates that he only got to own it after the accident, it is presumed that he owned it at the material time. As to the failure of the plaintiff to call the police to produce the abstract, the Defendant did not object to production of the same by the Plaintiff at the hearing. It is on this basis that I apportion liability at 80:20 in favour of the Plaintiff.”
22. The trial court then went on to assess general damages for pain, suffering and loss of amenities at Ksh.350,000/- and special damages at Ksh.7,300/- (both subject to apportionment).
23. Now to the matters in the appeal, having above reanalyzed, reevaluated and reconsidered the relevant evidence adduced in the trial court and bearing in mind that I did not see or hear the witnesses when they testified (see above Sielle), and further having perused and considered the Memorandum of Appeal, the record of the trial court together with the rival submissions, I deduce the issues for determination to be as follows:
a. Whether the trial court erred in reaching the finding that the Appellant’s motor vehicle was involved in the accident in which the 1st Respondent was allegedly injured.
b. Subject to (a) above, whether the learned trial Magistrate erred in apportioning liability at 80% against the Appellant and 20% against the 1st Respondent.
c. Whether the award of Ksh.350,000/- made on the head of general damages for pain, suffering and loss of amenities was inordinately high or excessive and whether this court should interfere with the same.
d. Who should bear the costs of the present appeal and the lower court suit?
24. The first issue for this court to determine is whether the trial court erred the trial court erred in reaching the finding that the Appellant’s motor vehicle was involved in the accident in which the 1st Respondent was injured.
25. On this issue, whereas the 1st Respondent told the trial court that the vehicle that hit him had the registration number KBN 432C, he described the said vehicle as a green Toyota Fielder. On his part, the Appellant told the court that his vehicle was a Toyota Premio that was silver in colour.
26. The copy of records that was produced, which was the 1st Respondents own document showed that motor vehicle registration number KBN 432C was a Toyota Premio, silver in colour, consistent with the Appellant’s description of his vehicle. The photos of the vehicle in the investigation report that was produced by DW2 confirmed that the car was a silver Toyota Premio.
27. It will be recalled that the 1st Respondent on being cross examined stated that his eyes had a problem and gave the registration number of the accident motor vehicle as KBN 439C. That is without a doubt a different vehicle from that stated in his pleadings and the copy of records that he produced.
28. It is to be remembered that the standard of proof in civil cases is on a balance of probabilities. The issue then is whether Appellant proved his claim on the balance of probabilities and to what extent.
29. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the Evidence Act that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given by either side.”
30. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
31. The trial court’s duty was to consider the evidence on record and determine whether the 1st Respondent proved the issue of liability on a balance of probabilities and the extent thereof, on the basis of the evidence that was placed before the court.
32. The only evidence that the record of the lower court availed on how the accident occurred is that of the 1st Respondent. He adopted the contents of his witness statement that indicated that the vehicle that hit him bore the registration number KBN 432C. In his testimony, the Appellant described the vehicle as a green Toyota Fielder.
33. The 1st Respondent’s testimony contradicted the contents of the copy of records that he produced, an official document, which indicated that the car subject to the search, registration number KBN 432C was a Toyota Premio, silver in colour. In his recorded statement, he gave the registration number of the accident vehicle as KBN 432C. When he was cross-examined, he gave a different registration number – KBN 439C, obviously different from that stated in his statement and the one whose records were produced. All these contradictions and inconsistencies remained unexplained.
34. In his defence, the Appellant denied being at the scene of accident and stated that he was away at Ol Karia in Naivasha where he worked and had in his possession his vehicle – registration number KBN 432C, Toyota Premio. He stated that his car was the subject of possible mistaken identity by the 1st Respondent.
35. In my view, the inconsistencies and contradictions by the 1st Respondent as to the registration number, colour and make of the vehicle that hit him gives credence to the Appellant’s version, that the vehicle that was involved in the accident was not his car, Toyota Premio registration number KBN 432C. As a matter of fact, it is instructive from the 1st Respondents own admission that he had a problem with his eyes. The possibility of mistaken identity, as proffered by the Appellant was in the premises a tenable explanation.
36. The learned trial Magistrate faulted the Appellant for not objecting to the production of the police abstract and took the view that its contents were in the premises proof that it is his vehicle that was involved in the accident. I disagree with the stand that the trial court took. As the Appellant specifically denied in his defence the claims by the 1st Respondent that it was the Appellant’s vehicle that hit the 1st Respondent, and further went on to state that his vehicle was in any event not at the scene, it was the onus of the 1st Respondent, who made the allegations, to prove the same, as we have seen in the decision of Evans Nyakwana (supra). The learned trial Magistrate was under a duty to consider the whole of the evidence presented, not just the contents of the police abstract.
37. From my analysis above, I am persuaded that the 1st Respondent did not prove on a balance of probabilities that it was the Appellant’s motor vehicle registration number KBN 432C that knocked him down. The Appellant denied any knowledge of the 2nd Respondent, particularly the claims that the latter was his driver. No evidence was presented to show or prove any such relationship between the two as was alleged by the 1st Respondent. There is no evidence in the trial record to show that the 2nd Respondent was served with summons and certainly, no request for interlocutory judgement was made and it would appear that the matter proceeded irregularly against the said party.
38. Be that as it may, no liability, vicarious or otherwise could possibly attach against the Appellant in the subsisting circumstances. That finding determines issues (a) and (b).
39. Issue (c) was whether the award of Ksh.350,000/- made on the head of general damages for pain, suffering and loss of amenities was inordinately high or excessive and whether this court should interfere with the same. Having determined the issue of liability as above, it would be preposterous, in my view to delve into this issue.
40. Being of the foregoing persuasion, I find the appeal to be merited and allow the same. I set aside the judgement of the trial court against the Appellant on both liability and quantum and substitute the same with an order that liability as against the Appellant was not proved to the required standard and that the suit against him stands dismissed effective the date of judgement in the trial court.
41. Section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya dictates that costs ought to follow the event. Thus then, the Appellant shall have the costs of the suit before the trial court and of this appeal, which shall be paid by the 1st Respondent.
DELIVERED (virtually), DATED & SIGNED this 6th day of March, 2025.
JOE M. OMIDO
JUDGE
FOR APPELLANT: Mr. Omagwa.
FOR 1ST RESPONDENT: Mr. Waiganjo.
FOR 2ND RESPONDENT: No appearance.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.
Mr. Omagwa: I seek an order that the security of Ksh.200,000/- that was deposited in HC Misc. E509 of 2022 be released to the Appellant’s Advocates.
Court: The application to be made in the file where the order for depositing of security was made.
JOE M. OMIDO
JUDGE