1. The Respondent instituted Keroka PMCC No. E033 of 2022 through a Plaint dated 07th February 2022 seeking general damages, special damages, costs and interest arising from a road traffic accident alleged to have occurred on 06th September 2021 along the Keroka–Sotik Road near Metamaywa involving motor vehicle registration number KBM 326H and an unidentified motorcycle.
2. The Appellant entered appearance and filed a Statement of Defence dated 23rd June 2022 denying occurrence of the alleged accident, denying negligence and putting the Respondent to strict proof thereof. In the alternative, the Appellant pleaded that if any accident occurred, then the same was wholly caused and/or substantially contributed to by the negligence of the rider and/or occupants of the motorcycle.
3. Following a full hearing, the subordinate court entered judgment in favour of the Respondent and awarded KES. 400,000 in general damages and KES. 14,300 in special damages together with costs and interest.
4. Dissatisfied with that outcome, the Appellant lodged the present appeal vide a memorandum of appeal dated 07th December 2023 challenging both the finding on liability and the resultant award. The Appellant contended that the trial court erred in holding it liable despite the absence of credible evidence identifying the motorcycle allegedly involved in the accident and despite the lack of investigative material linking motor vehicle registration number KBM 326H to the alleged occurrence. The Appellant further faulted the trial court for relying upon the evidence of PW2 who neither investigated nor witnessed the accident.
5. The Respondent supported the judgment of the subordinate court and maintained that the evidence tendered, including the police abstract and the testimony of PW2, sufficiently established liability against the Appellant.
6. This being a first appeal, the Court is obligated to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principle in Selle v Associated Motor Boat Co. Ltd (1968) EA 123 is therefore applicable.
7. Having reviewed the Record of Appeal, the proceedings before the subordinate court, the judgment appealed from and the rival submissions by counsel, the following issues arise for determination:
1) Whether the Respondent proved occurrence of the alleged accident involving motor vehicle registration number KBM 326H and the unidentified motorcycle;
2) Whether negligence against the Appellant was established on a balance of probabilities; and
3) Whether the judgment of the subordinate court ought to be interfered with.
8. On the first issue, the burden lay upon the Respondent to prove that the alleged accident occurred in the manner pleaded and that motor vehicle registration number KBM 326H was involved in the collision said to have caused her injuries. The Respondent testified that she had been travelling as a passenger aboard a motorcycle when the Appellant’s motor vehicle allegedly rammed into the motorcycle from behind. PW2, Corporal Josephine Wangioda, stated that according to police records, the accident involved motor vehicle registration number KBM 326H and an unidentified motorcycle.
9. The Court has carefully considered the evidence concerning the motorcycle upon which the Respondent claimed to have been travelling. The rider of the motorcycle admitted during cross-examination in Keroka MCCC E032 of 2022 that he could not remember the registration number of the motorcycle, did not know where the motorcycle was and could not identify its owner beyond a first name. He further acknowledged that he had no documentary material relating to the motorcycle. Those omissions were significant because the motorcycle formed the central basis upon which the Respondent’s claim was anchored.
10. In the ordinary course of events, one would reasonably expect a rider carrying fare-paying passengers to know the motorcycle’s registration particulars or at least possess some material capable of connecting it to the alleged accident. The inability to provide such information materially weakened the reliability of the Respondent’s account.
11. The evidentiary gaps in the Respondent’s case were further compounded by the evidence of PW2 who admitted during cross-examination that she neither witnessed nor investigated the alleged accident. Her testimony was derived entirely from occurrence book records. She further confirmed that no sketch map had been prepared and that no inspection of motor vehicle registration number KBM 326H had been undertaken following the alleged accident.
12. From the foregoing, the motorcycle allegedly involved in the accident also remained unidentified throughout the proceedings.
13. In Statpack Industries v James Mbithi Munyao (2005) eKLR, the Court emphasized that liability must be established by cogent evidence and not by mere allegation. Likewise, in Kenyatta University v Isaac Karumba Nyuthe (2014) eKLR, the Court observed that negligence claims must be supported by credible and tangible evidence.
14. Having independently evaluated the evidence on record, this Court finds that the Respondent did not prove, on a balance of probabilities, that the alleged accident occurred in the manner pleaded or that motor vehicle registration number KBM 326H was involved as alleged.
15. On the second issue, the subordinate court held the Appellant wholly liable on the basis that the motor vehicle allegedly hit the motorcycle from behind. With respect, the evidentiary basis upon which that conclusion was reached was insufficient. The finding on negligence rested principally upon the Respondent’s narration together with the evidence of PW2 who expressly admitted that she neither investigated nor witnessed the alleged accident.
16. In Timsales Limited v Wilson Libuywa (2008) eKLR, the Court held that liability cannot be sustained where the evidence adduced is contradictory or insufficient. Similarly, in Eastern Produce (K) Ltd v Christopher Atiado Osiro (2006) eKLR, the Court observed that material inconsistencies and evidentiary gaps ought to be resolved in favour of the defendant where doubt exists.
17. The Appellant denied both occurrence of the accident and negligence in its Statement of Defence. The burden therefore remained throughout upon the Respondent to establish negligence against the Appellant on a balance of probabilities. However, the subordinate court appeared to attach considerable weight to the Appellant’s failure to call the driver of motor vehicle registration number KBM 326H as a witness before the Respondent had first discharged the evidentiary burden placed upon her by law.
18. Upon reconsideration of the entire record, this Court finds that negligence against the Appellant was not proved to the required standard or at all. The evidence left unresolved gaps regarding the identity of the motorcycle allegedly involved and the circumstances under which the alleged collision occurred.
19. On the third issue, this Court is mindful that a first appellate court may interfere with findings of a trial court where the conclusions reached are unsupported by the evidence or where the court failed to properly evaluate material aspects of the case. In Kemfro Africa Limited t/a “Meru Express Services” & Another v A. M. Lubia & Another [1982–1988] 1 KAR 727, the Court held that interference is justified where the trial court acted on wrong principles, misapprehended the evidence or arrived at a plainly erroneous conclusion.
20. Upon re-evaluating the evidence afresh, as required of a first appellate court, this Court is satisfied that the trial court fell into error in its finding on liability. It follows, therefore, that the award on quantum, being predicated on that finding, cannot stand.
21. Consequently, the appeal is hereby allowed. The judgment and decree in Keroka MCCC E033 of 2022 are hereby set aside in their entirety. In substitution thereof, the Respondent’s suit before the subordinate court is dismissed with costs. The Appellant shall also have the costs of this appeal.
2. The Appellant entered appearance and filed a Statement of Defence dated 23rd June 2022 denying occurrence of the alleged accident, denying negligence and putting the Respondent to strict proof thereof. In the alternative, the Appellant pleaded that if any accident occurred, then the same was wholly caused and/or substantially contributed to by the negligence of the rider and/or occupants of the motorcycle.
3. Following a full hearing, the subordinate court entered judgment in favour of the Respondent and awarded KES. 400,000 in general damages and KES. 14,300 in special damages together with costs and interest.
4. Dissatisfied with that outcome, the Appellant lodged the present appeal vide a memorandum of appeal dated 07th December 2023 challenging both the finding on liability and the resultant award. The Appellant contended that the trial court erred in holding it liable despite the absence of credible evidence identifying the motorcycle allegedly involved in the accident and despite the lack of investigative material linking motor vehicle registration number KBM 326H to the alleged occurrence. The Appellant further faulted the trial court for relying upon the evidence of PW2 who neither investigated nor witnessed the accident.
5. The Respondent supported the judgment of the subordinate court and maintained that the evidence tendered, including the police abstract and the testimony of PW2, sufficiently established liability against the Appellant.
6. This being a first appeal, the Court is obligated to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principle in Selle v Associated Motor Boat Co. Ltd (1968) EA 123 is therefore applicable.
7. Having reviewed the Record of Appeal, the proceedings before the subordinate court, the judgment appealed from and the rival submissions by counsel, the following issues arise for determination:
1) Whether the Respondent proved occurrence of the alleged accident involving motor vehicle registration number KBM 326H and the unidentified motorcycle;
2) Whether negligence against the Appellant was established on a balance of probabilities; and
3) Whether the judgment of the subordinate court ought to be interfered with.
8. On the first issue, the burden lay upon the Respondent to prove that the alleged accident occurred in the manner pleaded and that motor vehicle registration number KBM 326H was involved in the collision said to have caused her injuries. The Respondent testified that she had been travelling as a passenger aboard a motorcycle when the Appellant’s motor vehicle allegedly rammed into the motorcycle from behind. PW2, Corporal Josephine Wangioda, stated that according to police records, the accident involved motor vehicle registration number KBM 326H and an unidentified motorcycle.
9. The Court has carefully considered the evidence concerning the motorcycle upon which the Respondent claimed to have been travelling. The rider of the motorcycle admitted during cross-examination in Keroka MCCC E032 of 2022 that he could not remember the registration number of the motorcycle, did not know where the motorcycle was and could not identify its owner beyond a first name. He further acknowledged that he had no documentary material relating to the motorcycle. Those omissions were significant because the motorcycle formed the central basis upon which the Respondent’s claim was anchored.
10. In the ordinary course of events, one would reasonably expect a rider carrying fare-paying passengers to know the motorcycle’s registration particulars or at least possess some material capable of connecting it to the alleged accident. The inability to provide such information materially weakened the reliability of the Respondent’s account.
11. The evidentiary gaps in the Respondent’s case were further compounded by the evidence of PW2 who admitted during cross-examination that she neither witnessed nor investigated the alleged accident. Her testimony was derived entirely from occurrence book records. She further confirmed that no sketch map had been prepared and that no inspection of motor vehicle registration number KBM 326H had been undertaken following the alleged accident.
12. From the foregoing, the motorcycle allegedly involved in the accident also remained unidentified throughout the proceedings.
13. In Statpack Industries v James Mbithi Munyao (2005) eKLR, the Court emphasized that liability must be established by cogent evidence and not by mere allegation. Likewise, in Kenyatta University v Isaac Karumba Nyuthe (2014) eKLR, the Court observed that negligence claims must be supported by credible and tangible evidence.
14. Having independently evaluated the evidence on record, this Court finds that the Respondent did not prove, on a balance of probabilities, that the alleged accident occurred in the manner pleaded or that motor vehicle registration number KBM 326H was involved as alleged.
15. On the second issue, the subordinate court held the Appellant wholly liable on the basis that the motor vehicle allegedly hit the motorcycle from behind. With respect, the evidentiary basis upon which that conclusion was reached was insufficient. The finding on negligence rested principally upon the Respondent’s narration together with the evidence of PW2 who expressly admitted that she neither investigated nor witnessed the alleged accident.
16. In Timsales Limited v Wilson Libuywa (2008) eKLR, the Court held that liability cannot be sustained where the evidence adduced is contradictory or insufficient. Similarly, in Eastern Produce (K) Ltd v Christopher Atiado Osiro (2006) eKLR, the Court observed that material inconsistencies and evidentiary gaps ought to be resolved in favour of the defendant where doubt exists.
17. The Appellant denied both occurrence of the accident and negligence in its Statement of Defence. The burden therefore remained throughout upon the Respondent to establish negligence against the Appellant on a balance of probabilities. However, the subordinate court appeared to attach considerable weight to the Appellant’s failure to call the driver of motor vehicle registration number KBM 326H as a witness before the Respondent had first discharged the evidentiary burden placed upon her by law.
18. Upon reconsideration of the entire record, this Court finds that negligence against the Appellant was not proved to the required standard or at all. The evidence left unresolved gaps regarding the identity of the motorcycle allegedly involved and the circumstances under which the alleged collision occurred.
19. On the third issue, this Court is mindful that a first appellate court may interfere with findings of a trial court where the conclusions reached are unsupported by the evidence or where the court failed to properly evaluate material aspects of the case. In Kemfro Africa Limited t/a “Meru Express Services” & Another v A. M. Lubia & Another [1982–1988] 1 KAR 727, the Court held that interference is justified where the trial court acted on wrong principles, misapprehended the evidence or arrived at a plainly erroneous conclusion.
20. Upon re-evaluating the evidence afresh, as required of a first appellate court, this Court is satisfied that the trial court fell into error in its finding on liability. It follows, therefore, that the award on quantum, being predicated on that finding, cannot stand.
21. Consequently, the appeal is hereby allowed. The judgment and decree in Keroka MCCC E033 of 2022 are hereby set aside in their entirety. In substitution thereof, the Respondent’s suit before the subordinate court is dismissed with costs. The Appellant shall also have the costs of this appeal.