[2022] KEHC 15331 (KLR)

Ala v Wangari & 2 others (Civil Appeal 65 of 2016) [2022] KEHC 15331 (KLR) (Civ) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15331 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 65 of 2016

CW Meoli, J

November 10, 2022

Between

Ali Ala

Appellant

and

Fredrick Macharia Wangari

1st Respondent

Auto Assured Limited

2nd Respondent

Richard Otieno Chando

3rd Respondent

(Being an appeal from the judgment of Hon. M. Chesang (Mrs.) (RM) delivered on 28th January 2016 in Nairobi Milimani CMCC No. 1484 of 2014)

Judgment

1. This appeal emanates from the judgment delivered on January 28, 2016 in Nairobi Milimani CMCC No 1484 of 2014. The suit was commenced by a plaint filed on March 20, 2014 by Fredrick Macharia Wangari the plaintiff in the lower court (hereafter the 1st Respondent herein) against Auto Assured Limited and Richard Otieno Chando the 1st and 2nd defendant in the lower court (hereafter the 2nd & 3rd Respondent herein). The 1st Respondent’s claim was for damages on account injuries sustained in a road traffic accident that occurred on March 11, 2012.

2. It was therein averred that the 2nd Respondent was the registered owner, beneficial owner, insured owner and or owner in possession of motor vehicle registration number KAW xxxx which at the material time was being driven by the 3rd Respondent as the authorized driver, servant and or agent of the 2nd Respondent. That the 1st Respondent was lawfully travelling in motor vehicle KBR xxxx as a passenger along Thika Road when the 3rd Respondent so negligently drove, controlled and or managed motor vehicle KAW xxxx that he lost control of the vehicle, veered off the road caused it to violently collide onto motor vehicle registration number KBR xxxx, occasioning severe bodily injuries to the 1st Respondent.

3. The 2nd and 3rd Respondent filed a joint statement of defence on May 5, 2014 denying the key averments in the plaint and liability and averred that the driver of motor vehicle registration number KBR xxxx solely caused and or contributed by the negligence to the accident and that in dure course leave of the court would be sought to institute third party proceedings against the said driver. On June 27, 2014 the 2nd and 3rd Respondent instituted third party proceedings against the registered owner, insured owner and or beneficial owner of motor vehicle registration number KBR xxxx, one Ali Ala the Third Party in the lower court (hereafter the Appellant herein).

4. The 2nd and 3rd Respondent claimed indemnity and or contribution against the Appellant in the event liability was found against them. On grounds that motor vehicle registration number KBR xxxx largely caused and or contributed to the accident and that Appellant as the registered owner was also vicariously liable for the acts and or omission of his driver, employee, servant and or agent. The Appellant filed a statement of defence on October 14, 2014 denying the key averments in the plaint and liability and averred that the accident was solely and or substantially caused by the negligence of the 1st and 3rd Respondents. Third Party directions were taken before the suit proceeded to full hearing during which only the 1st Respondent and Appellant adduced evidence in support of their respective cases.

5. In its judgment, the trial court proceeded to apportion liability in the ratio of 90:10 in favour of the 1st Respondent as against the 2nd and 3rd Respondents, and further that liability apportioned against the 2nd and 3rd Respondent was to be shared equally with the Appellant. The court awarded damages to the 1st Respondent as hereunder:a.General Damages - Kshs 800,000/-.b.Special Damages - Kshs 2,500/-.c.Future Medical Expenses- Kshs 100,000/-Total Kshs 902,500/-

6. Aggrieved with the outcome, the Appellant preferred this appeal which is based on the following grounds: -“1. The learned trial magistrate erred in law and misdirected herself when she failed to consider the Appellant’s submissions on both points of law and facts.2. That the learned trial magistrate erred in law and in fact when she apportioned liability in favour of the Plaintiff against the Defendants and the third party in the ratio of 90:10 whereas in the judgment the trial magistrate opined that the Defendants had failed to establish their case against the Third Party.3. The learned trial magistrate erred in law and in fact in finding the Third Party liable in view of the evidence produced before the trial court and in particular the following;-a.The Defendants did not call any witness to adduce evidence in their favour when the matter came up for hearing.b.That the Defendants having enjoined the Third Party to the suit failed to establish their case against the Third Party.c.That the Plaintiff gave evidence that the driver of the motor vehicle registration KAW xxxx was blamed for the accident and charged in court for the careless driving.d.That the Plaintiff in his testimony did not adduce any evidence as to liability on the part of the Third Party.e.That the Third Party called the police officer who produced a police abstract report blaming the Defendant subject motor vehicle registration number KAW xxxx.4. The learned trial magistrate erred in assessing quantum of Kshs 800,000/- as general damages, Kshs 2,500/- as special damages and Kshs 100,000/- as costs of future medical expenses as against the parties jointly and severally whereas the Defendants failed to prove their case on a balance of probability as against the Third Party.5. The learned trial magistrate erred in assessing an award, hereunder which was inordinately high and wholly erroneous estimate of the loss and damages suffered by the Plaintiff;-General Damages Kshs 800,000/-.Future Medical Expenses Kshs 100,000/-Special Damages Kshs 2,500/-.Net Award Kshs 902,500/-6. That the learned trial magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.7. The learned trial magistrate erred in awarding costs of the suit and interest to the Plaintiff.” (sic)

7. The court directed on 7. 9.18 that the appeal be canvassed by way of written submissions. The 2nd and 3rd Respondents were represented on that date but never filed submissions or attended further proceedings. After the Appellant and the 1st Respondent had complied with the order to file submissions, the matter lay dormant from 26. 6.19 until it was listed for notice to show cause why the appeal should not be dismissed for want of prosecution (NTSC). The matter was listed for the NTSC on December 2, 2021. Although counsel for the Appellant and for the 2nd and 3rd Respondents were duly served with the NTSC and an affidavit of service filed, only the Appellant attended and informed the Court that submissions had long been filed, a fact confirmed in the subsequent mention on April 21, 2022. For whatever reason the 2nd and 3rd Respondents appear to have lost interest in the matter.

8. Counsel for the Appellant condensed the grounds of appeal into two key issues relating to liability and quantum of damages. Submitting on the issue of liability, counsel took issue with the fact that the trial court in its judgment made a finding that the 2nd and 3rd Respondent did not prove on a balance of probabilities the case as against the Appellant but nevertheless proceeded to apportion liability against the Appellant. It was further submitted the evidence on record did not show the Appellant to be blameworthy, as the 2nd and 3rd Respondents despite enjoining the Appellant did not adduce evidence to prove their claim against him.

9. While calling to aid several decisions including VOW v Private Safari (EA) Ltd [2010] eKLR, Commissioner for Transport v FO Boero (1954) KLR, and Eastern Shipping Co v Quah Beng Kee [1924] AC 177, and the provisions of Section 107, 108 and 109 of the Evidence Act counsel submitted that the 2nd and 3rd Respondent had the onus of proving their case against the Appellant on a balance of probabilities failing which their claim would fail. Counsel cited Mbogo v Shah (1968) EA as cited inDavid Brown Kipkorir Chebii v Rael Chebii[2016] eKLR and the decision in Eastern Produce (K) Limited v Christoper Atiado Osiro [2006] eKLR tin that regard. He therefore asserted that the 2nd and 3rd Respondents failed to discharge their burden of proof against the Appellant hence the trial court’s finding on liability was erroneous and ought to be set aside.

10. Concerning the award on damages the Appellant anchored his submission of on the decisions in Millicent Atieno Ochuonyo v Katola Richard [2015] eKLR, Denshire Muteti Wambua v Kenya Power & Lighting Co Ltd[2013] eKLR and George Kinyanjui t/a Climax Coaches & Another v Hassan Musa Agoi [2016] eKLR on the applicable principles. It was contended that the trial court assessed quantum of damages without due consideration of the injuries suffered by the 1st Respondent and relevant authorities submitted by the Appellant rregarding injuries comparable to the 1st Respondent’s. He emphasized that from the evidence tendered, the 1st Respondent sustained a dislocation and a single fracture without permanent sequela, therefore the award of Kshs 800,000/- in general damages was inordinately high and based on misapprehension of the law and facts.

11. Counsel relied on the cases of Elizabeth Mulwa v Tawfiq Bus Services [2003] eKLR, SDV Transami (K) Ltd v Scholastic Nyambura [2012] eKLR, H Young Construction Company Ltd v Richard Kyule Ndolo [2014] eKLR, Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR, Kenyatta University v Isaac Karumba Nyuthe[2014] eKLR and Florence Njoki Mwangi v Peter Chege Mbitiru [2014] eKLR in urging the court to interfere and review the award downwards to a sum between Kshs 300,000/- to 450,000/- which he asserted to be reasonable compensation in this instance. The court was thus urged to allow the appeal.

12. The 1st Respondent naturally defended the trial court’s decision. His counsel cited Simon Muchemi Atako & Another v Gordon Osore [2013] eKLR and Matheri Joel & Another v Edwin Nyongesa [2018] eKLR on the principles to be observed by an appellate court while considering an appeal. Concerning liability counsel cited the provisions of Section 107 & 112 of the Evidence Act to submit that the 1st Respondent’s evidence on a balance of probabilities established negligence against the 2nd and 3rd Respondents. Counsel pointing out that the 1st Respondent was a fare paying passenger aboard the Appellant’s motor vehicle and his evidence at the trial stood unchallenged. That the 2nd and 3rd Respondents had enjoined the Appellant to the proceedings seeking contribution in the event they were found liable for the accident, hence the trial court’s finding on liability was therefore not erroneous.

13. Concerning the award on general damages, counsel restated the principles to be observed by an appellate court, reiterated the medical evidence adduced at the trial and the fact that neither the 2nd & 3rd Respondents nor the Appellant called any evidence to dispute the injuries and extent of incapacity occasioned to the 1st Respondent. Moreover, Further, counsel asserted that the authorities relied on by the Appellant were fairly dated, and the trial court’s award was commensurate with the injuries sustained by the 1st Respondent. The decisions in Micheal Njagi Karimi v Gideon Ndungu Nguribu [2013] eKLR, Mwaura Muiruri v Suera Flowers Limited & Another [2014] eKLR,Njoki Kariuki v Bedricon Wamboka Waswa & Another [2013] eKLR and Geoffrey Mwaniki Mwinzi v Ibero (K) Limited & Another [2014] eKLR were called to aid in the foregoing regard. The court was urged to dismiss the appeal.

14. As earlier observed, the 2nd and 3rd Respondent did not file submissions in respect of the instant appeal despite being given ample opportunity to do so. This court has however taken the liberty to look at the submissions that these parties filed in the subordinate, the key feature thereof being the contention that the Appellant’s driver was either solely or partly to blame because he rammed into the rear of the vehicle into which the 1st Respondent was travelling. The Respondents cited George Kaniaru Kanyutu v Francis Muhoho Ngugi (2004) eKLR in that regard. Further, they citedLakamshi V Attorney General(1971) EA 118 to blame the driver of the Appellant’s vehicle for failing to take avoiding action.

15. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co[1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.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.”

16. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu (1982 – 1988) 1 KAR 278. Upon reviewing the memorandum of appeal, the original record of proceedings and the respective submissions it is the court’s view that the appeal turns on two issues, namely, whether the finding of the trial court on liability was well founded, and if so, whether the award on general damages was justified.

17. Pertinent to the determination of issues are the pleadings, which form the basis of the parties’ respective cases before the trial court. Hence a review thereof is apposite before dealing with evidentiary matters. In Wareham t/a AF Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

18. The 1st Respondent by his plaint averred at paragraph 4 that:“4. On or about 11th of March 2012 the Plaintiff was lawfully travelling in motor vehicle registration number KBR xxxx as a passenger along Thika Road at Utalii Drift when the 2nd Defendant by himself, authorized driver, agent, servant and or employee so negligently drove, controlled and or managed motor vehicle KAW xxxx that he lost control, veered off the road caused it to violently collide ram onto motor vehicle registration no, KBR xxxx and therefore causing the Plaintiff to sustain severe bodily injuries.Particulars of negligence on the part of the defendant, his authorized driver, servant, agent and or employeea.Failing to keep any or any outlook.b.Drove motor vehicle registration number KAW xxxx at a speed that was too fast in the circumstance.c.Failed to have any or any proper control of the motor vehicle registration number KAW xxxx.d.Drove without any due regard and attention.e.Failed to have any or any sufficient regard for the safety of other road users and in particular the Plaintiff herein.f.Failed to brake, stop, swerve, slow down or in any other manner manage or control the said motor vehicle registration number KAW xxxx so as to avoid the accident subject matter.g.Drove recklessly, carelessly and dangerously.h.Failing to steer a safe and proper course.i.Causing the accident.j.Res ipsa loquitorThe Plaintiff will further rely and pleads the doctrine of Res Ipsa Loquitor on the true facts and circumstance of the accident subject matter.

19. The 2nd and 3rd Respondent filed a joint statement of defence on May 5, 2014 denying the key averments in the plaint and liability, and averred that the accident was solely or substantially caused by the negligence of the Appellant as a Third Party by averring at paragraph 6 and 7 that;-“6. The Defendants deny the negligence attributed to the 2nd Defendant in causing the alleged accident and each of the particulars on negligence set out in paragraph 4 [a-k] of the plaint all-inclusive and puts the Plaintiff to strict proof thereof.7. Without prejudice to the foregoing, the Defendants sate that if at all the alleged accident occurred, then the same was not due to the Defendants negligence but rather the same was solely caused and or contributed to by the negligence of the driver of motor vehicle registration number KBR xxxx and at the opportune time the Defendants shall crave leave of the court to institute third party proceedings against the driver.Particulars of negligence of the driver of motor vehicle KBR xxxxa.Driving motor vehicle registration number KBR xxxx at an excessive speed in the circumstance.b.Failing to maintain a safe distance from the motor vehicle in front of him.c.Failing to apply brakes on time to avoid the accident.d.Being generally careless and negligent.e.Driving without due regard to other road users especially motor vehicle KAW xxxx.f.Driving without due care and or attention.g.Ramming into motor vehicle KAW xxxx from the rear.h.Failing to observe Highway Code.” (sic)

20. The Appellant filed a statement of defence denying the particulars of negligence and liability, attributing negligence on the part of the 1st and 3rd Respondent by stating at paragraphs 4 and 5 that;-“4. Further and in the alternative and without prejudice to the foregoing the 1st Third Party avers that any such occurrence as the Plaintiff may prove was caused solely and or substantially contributed to by the Plaintiff’s own negligence.Particulars of negligencea.Failing to take any or any adequate precaution for her own safety.b.Failing to heed the instructions on safety precautions when travelling.c.Failing to heed the traffic rules and regulations when travelling.4. Further and in the alternative and without prejudice to the foregoing the 1st Third Party avers that if there was such an occurrence as the Plaintiff may prove the same occurred without negligence on his part and was due to negligence of the driver of motor vehicle KAW xxxx.Particulars of negligenceThe driver of motor vehicle registration number KAW xxxx was negligent in:a.Failing to have any or any sufficient regard for the safety of the users of the said road by driving without due care and attention.b.Failing to keep any or any proper look-out for other vehicles that might reasonably have been on the said road.c.Obstructing the course of motor vehicle registration number KBR xxxx.d.Driving at an excessive speed in the circumstance.e.Endangering (the lives of) other road users in his manner of driving and overtaking.f.Having total disregard for other traffic rules.g.Failing to stop, slow down to swerve or in any way so manage the said motor vehicle so as to avoid the accident.h.Causing the accident.And the 1st Third Party denies that the doctrine of Res Ipsa Loquitor is applicable herein.” (sic)

21. In its judgment, the trial court after restating and examining the respective parties’ evidence stated concerning liability that:“………The Plaintiff’s testimony was not corroborated by the evidence of the drivers of the two motor vehicles involved in the accident. Further, no eyewitness was called to testify and shed light on what actually transpired. This notwithstanding, the Plaintiff was a fare paying passenger in one of the said motor vehicle and as such he had not control whatsoever of the motor vehicle but still ended up sustaining injuries as a result of the accident. Liability is in view of the foregoing hereby entered in the Plaintiff’s favour against the Defendants in the ration of 90:10. …...It is worth noting that the Defendants failed to make out their case at least on a balance of probabilities against the Third Party; no blame has actually been laid against him. I have considered the pleadings, evidence and submissions of all parties and I hereby award damages in favour of the Plaintiff as against the Defendants jointly and severally as follows (after apportionment of liability); and the Defendants and Third Party shall share liability apportioned to the Defendants equally.” (Sic).

22. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The duty of proving the averments contained in the plaint lay squarely on the 1st Respondent whereas those in the respective statements of defence lay on the 2nd, 3rd Respondent and the Appellant. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

23. It has since been settled that mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant (or third party as in the instant matter). The court in the case cited the famous decision of Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing by stated that:“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

24. In Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley vs Gypsum Mines Ltd (2) [1953] AC 663 at p 681 as follows:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

25. The 1st Respondent testified as PW1 and adopted his witness statement as his evidence in chief and produced the documents attached to his list of documents dated February 14, 2014 as PExh.1 (Medical Report by Dr Wangata); PExh2 ( Discharge Summary from PCEA Kikuyu Rehabilitation Centre); PExh 3 (Discharge Summary from Kenyatta National Hospital); PExh4 – (Receipts in support of specials); PExh5 (Copy of Records and Receipt); PExh6 ( Copy of Demand Letter and Notice to Insurers); PExh7 ( P3 Form); PExh8 ( Invoices); and PExh9 (Police Abstract).

26. The sum of his evidence was that on the date of the accident he was lawfully travelling aboard motor vehicle KBR xxx (matatu) when motor vehicle KAW xxxx (saloon car) which was being driven fast and negligently lost control and collided with the matatu. Under cross-examination it was his evidence that the matatu was being driven well unlike saloon car that suddenly changed lanes without indicating, prompting the driver of motor matatu to suddenly apply emergency brakes but inevitably a collision occurred. He asserted that it was the driver of saloon car who was to blame for the accident having lost control of his vehicle and veered towards the direction of the matatu thus causing the accident. On re-examination he reiterated that as per police abstract it was indicated that he was a passenger.

27. The Appellant called one witness PC Duke Mogaka who testified as DW1. He began by stating that the Occurrence Book (OB) he had brought to court was not concerned with the matter before court therefore did not produce the said OB. Nonetheless, the gist of his evidence was that a fatal accident occurred on March 11, 2012 at 7pm along Thika Road involving an Isuzu Bus and motor vehicle KAW xxxx Toyota corolla driven by the 3rd Respondent. That He produced a police abstract as DExh1. Under cross-examination he stated that he did not know how the accident occurred.

28. Evidently DW1 did not witness the material accident. He specifically told the trial court that he did not have before court, the relevant OB in respect of the accident in question. As such his evidence was entirely gleaned from the entries made in DExh.1 which is ordinarily extracted from the relevant OB Further this court having compared the entries made in Pexh.9 and DExh1, noted that DW1 was not the investigating officer and or involved in the investigations relating to the accident. The trial court did not address itself as to the gravitas of DW1’s evidence while rendering a determination on the issue of liability. Consequently, it is this court’s reasoned determination that other than merely confirming the occurrence of the accident, DW1’s evidence did not contain any admissible and credible evidence as to how the accident occurred hence was of no probative value on the question of liability.

29. The 1st Respondent was the sole eyewitness to the accident, and his evidence was not controverted by any other eyewitness account. His evidence was that the saloon car driver caused the accident when speeding, and without indicating such intention, he suddenly changed lanes from the first to the third lane, the latter being the path of the matatu and hence colliding with the said matatu. Neither the Appellant nor his driver testified before the trial court to shed light on the circumstances of the accident. More significantly, the 2nd and 3rd Respondents did not call any evidence to controvert the 1st Respondent’s evidence.

30. Thus, the 1st Respondent’s evidence was the only material available to the trial court in determining the issue of liability in respect of the accident and as rightly noted by the trial court the said Respondent was a fare paying passenger in the matatu and had no control thereof. This court having reviewed the 1st Respondent’s evidence before the trial court is satisfied that on a balance of probabilities it established negligence against the 2nd and 3rd Respondents. Additionally, the court is of the view that there was no legal or evidential basis to justify the trial court’s apportionment of liability against the 1st Respondent.

31. Regarding the 2nd & 3rd Respondents’ claim against the Appellant, the onus was on the said Respondents to establish the negligence pleaded against the Appellant’s driver, whom the 1st Respondent had by his evidence absolved from blame. The 2nd and 3rd Respondent did not adduce any evidence before the trial court. By their submissions before the trial court, the said Respondents attempted to make a case, not presented through evidence at the trial, that the matatu driver having failed to take avoiding action and rammed into the rear of the saloon car, was liable for negligence. They cited the case of George Kaniaru Kanyutu (supra) in that regard. With respect, while an inference could in appropriate circumstances be made that a driver who rams or collides into the rear of a car driving in front of him was negligent for failing to keep a safe distance and a proper look out, this is a question dependent on the overall evidence concerning the collision. In this case the proposition was not supported by any evidence and was in any event rebutted by the evidence of the 1st Respondent as considered below.

32. The other submission made before the trial court by the 2nd and 3rd Respondents that the case of Lakamshi (supra) applied to the facts of this case, and therefore that liability ought to have been equally apportioned between the Appellant on one hand, and the 2nd and 3rd Respondents on the other was equally without merit. The dicta in the Lakamshi case was that where adverse parties in a case presented conflicting evidence on the manner in which an accident involving two drivers occurred, and the court is unable to apportion the degree of negligence or liability of each driver, it could apportion liability equally between them.

33. There were no conflicting accounts of the accident in this case, and the assertion that the matatu driver failed to take avoiding action was not demonstrated through evidence by the 2nd and 3rd Respondents, and the claim itself was rebutted by the 1st Respondent who asserted that the matatu driver not only drove carefully, and in a bid to avoid the collision had applied emergency brakes, on seeing the saloon car veer onto the matatu’s path. To no avail, as a collision occurred. The said driver was evidently keeping a proper look out.

34. The Court of Appeal in Keziah & another (Personal Representatives of the late Isaac Macharia Mutunga) v Lochab Transport Limited[2022] KECA 477 (KLR) stated: -“The question that remains unanswered is who was then on the wrong, or caused and or contributed to the accident? The mere fact that an accident involving the two vehicles occurred does not per se translate into the respondent's driver being culpable. It was the duty of the appellants to call evidence to prove the particulars of negligence or any one of them that they attributed to the respondent's driver. We do not think just like the High Court that they discharged this burden.

35. The Court proceeded to conclude that: -“The accident involved two motor vehicles and from the evidence adduced, there is nothing to show that the respondent was culpable.”

36. In view of the foregoing, it is evident that the 2nd and 3rd Respondents failed to establish on a balance of probabilities that the Appellant’s driver contributed to the occurrence of the accident and must shoulder 100% liability. Further, as rightly argued by the Appellant, the trial court’s judgment was contradictory as the learned magistrate having found no proof of negligence against the Appellant inexplicably proceeded to hold the 2nd and 3rd Respondents together with the said Appellant equally liable for the accident. This was a misdirection on the part of the trial court. Under section 107 of the Evidence Act, the burden of proof lay with the 2nd and 3rd Respondents to prove negligence against the Appellant and if their evidence did not support the facts pleaded, they failed as the party with the burden of proof. See the case of Wareham t/a AF Wareham (supra). Having so found, no useful purpose will be served by a consideration of the grounds of appeal relating to quantum.

37. In the result, this appeal must be allowed. The court hereby varies the judgment of the trial court by setting aside the findings therein on liability against the Appellant and apportionment of liability against the 1st Respondent. The court substitutes therefor an order that the 2nd and 3rd Respondents are jointly and severally liable for the accident, while dismissing with costs the third-party claim by the 2nd and 3rd Respondents against the Appellants in the lower court. The 2nd and 3rd Respondents will bear the costs of this appeal as hereby awarded to the 1st Respondent and the Appellant.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 10TH DAY OF NOVEMBER 2022. C.MEOLIJUDGEIn the presence of:For the Appellant: Ms. ChichiFor the 1st Respondent: N/AFor the 2nd & 3rd Respondent: N/AC/A: Carol