https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11235

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E031 OF 2024** **KEVIN AMBANI APPELLANT** **=VERSUS=** **PAMELA MUNALA NDENGU RESPONDENT** *(Being an appeal against the judgment and decree of Hon. M. Ochieng (PM) delivered on 8th July 2024 in Hamisi PMCC No. E003 of 2021)* **KEVIN AMBANI ……………………….………………………………….. PLAINTIFF** **=VERSUS=** **PAMELA MUNALA NDENGU ……………….……………………… RESPONDENT** **Corams: Before Justice R. Nyakundi** **M/S W. O. Ochuka & Co. Advocates** **M/S Kairu McCourt Advocates** **JUDGMENT** **Introduction and background** 1. This is a first appeal from the judgment and decree of the Senior Principal Magistrate’s Court at Hamisi (Hon. M. Ochieng, PM) delivered on 8th July 2024 in Hamisi PMCC No. E003 of 2021, by which the trial Court dismissed, with costs, the suit brought by the Appellant, Kevin Ambani, against the Respondent, Pamela Munala Ndengu. 2. By a plaint dated and filed on 21st January 2021, the Appellant (as Plaintiff) sued the Respondent (as defendant) for general damages, costs and interest arising out of a road traffic accident said to have occurred on or about 31st July 2020 along the Kapsabet–Chavakali Road, at the Mago area. The Appellant’s case was that he was lawfully aboard, as a fare-paying passenger, the Respondent’s motor vehicle registration number KCL 521A (Toyota Hiace) (“the suit motor vehicle”) when it was so negligently driven, managed or controlled by the Respondent, her driver, servant or agent that it lost control and collided with motor vehicle registration number KBF 150U (Toyota Mark X), and that he thereby sustained injuries for which he holds the Respondent vicariously liable. The Appellant pleaded particulars of negligence and, in the alternative, relied on the doctrine of *res ipsa loquitor*. 3. The Respondent filed a statement of defence dated 26th August 2021 denying the claim, putting the Appellant to strict proof, and pleading, in the alternative, contributory negligence, as well as particularizing the negligence of the driver of the other motor vehicle, KBF 150U. At the trial, the Appellant testified as PW1, and both counsels closed their respective cases without the Respondent calling any evidence. 4. The learned trial Magistrate framed two issues — liability and quantum — and, on liability, dismissed the suit, holding that the Appellant had failed to prove his case on a balance of probabilities. Aggrieved, the Appellant preferred this appeal. **The decision of the trial Court** 1. *The gist of the trial Court’s reasoning was as follows. First, the Court held that ownership of the suit motor vehicle had not been proved: the Appellant had not conducted a motor vehicle search at the National Transport and Safety Authority (NTSA), the registered and beneficial owner of the suit motor vehicle was “not known,” and the identity of its driver remained “a mystery.” Secondly, the Court found a contradiction as to the date of the accident, the plaint pleadings show 31st July 2020 while, in the Court’s record, PW1’s adopted witness statement indicated a different date. Thirdly, the Court took the view that the Police Abstract produced as PExh3 “simply showed that an accident occurred,” that the matter was “still pending under investigations at the Police Station,” and that there was therefore “no conclusive proof” that the accident was caused by the Respondent or her driver. On that basis the suit was dismissed with costs, the Court not proceeding to assess quantum.* **The appeal** 1. The Memorandum of Appeal raises, in substance, eight grounds, which was structured as follows: 1. *That the learned trial Magistrate erred in law and fact in finding that ownership of the suit motor vehicle had not been proved;* 2. *That the learned trial Magistrate erred in law and fact in failing to treat the unrebutted police abstract as prima facie evidence of ownership;* 3. *That the learned trial Magistrate erred in law and fact in her treatment of the date of the accident and of the oral amendment said to have been made to the Appellant’s witness statement;* 4. *That the learned trial Magistrate erred in law and fact in disregarding, or treating superficially, the Appellant’s submissions and authorities on liability and quantum;* 5. *That the learned trial Magistrate erred in law and fact in failing to assess the extent of the Appellant’s injuries and the damages;* 6. *That the learned trial Magistrate erred in law and fact in effectively raising the standard of proof above the balance of probabilities by dismissing an unrebutted case; and* 7. *That the learned trial Magistrate erred in law and fact in reaching a decision said to be against the weight of the evidence.* The Appellant prays that the judgment be set aside, that this Court make its own findings on liability and quantum, and that the costs of the appeal be provided for. 1. From the above grounds, the appeal was canvassed by way of written submissions, which I have considered in full. The Appellant submits that the Police Abstract (PExh3), produced and unrebutted, is prima facie proof of ownership capturing the suit motor vehicle’s insurance in the Respondent’s name and that an NTSA search was not indispensable; that the pleaded date of 31st July 2020 was supported by the abstract and the treatment records and that any discrepancy in the witness statements was a correctable error; that, as a fare-paying passenger, he was entitled to rely on *res ipsa loquitur*; and that general damages of Kshs 250,000 should be awarded for his injuries on the strength of the principles in the case of *Lake Naivasha Growers v Muigai Thuka [2020] eKLR*. 2. On the other hand, Learned Counsel for the Respondent relied on his written submissions dated 13th May 2024 filed in Court on 21st May 2025. It was Learned Counsel’s submissions that it is trite law that parties are bound by their pleadings and therefore the discrepancies alluded to by the Appellant and his witnesses are very clear that the standard and burden of proof was never discharged for judgment to be issued in his favour. In this respect, Learned Counsel placed reliance in the following authorities: *Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR & Independent Electoral and Boundaries Commission & Anor v Stephen Mutinda Mule & 3 Others [2014] eKLR.* In Learned Counsel’s perspective, there is no error of fact of law committed by the trial Court to warrant this Court to overturn its findings of dismissing the suit with costs. **Decision** **The duty of this Court on a first appeal** 1. This being a first appeal, the duty of this Court is to re-evaluate and re-assess the whole of the evidence on record, and to arrive at its own independent conclusions, bearing always in mind that it has neither seen nor heard the witnesses and making due allowance in that respect. The classic statement is that of the Court of Appeal for Eastern Africa in *Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123*, that such an appeal is by way of retrial and the Court must reconsider the evidence, evaluate it itself and draw its own conclusions. A similar stand was taken by the Court in the matter of *Peters v Sunday Post Ltd [1958] EA 424*. **Issues for determination** 1. In re-evaluating the record, the following issues arise: 2. Whether the accident of 31st July 2020, and the Appellant’s involvement in it, were established, notwithstanding the discrepancies as to date; 1. Whether ownership of the suit motor vehicle by the Respondent was proved; 2. Whether negligence, and hence liability, was established against the Respondent; 3. If so, the quantum of damages; and 4. Costs. **Analysis and determination** 1. **Burden and standard of proof** 2. The burden of proof lay on the Appellant/Plaintiff, to prove his case on a balance of probabilities. The threshold issue is that for he or she who alleges must prove existence or non-existence of facts in issue (See Sections 107, 108 and 109 of the Evidence Act, Cap 80). This standard and burden of proof in civil cases is always on a balance of probabilities, and not the one of beyond reasonable doubt which is a preserve in criminal law. It is equally settled that where a Defendant adduces no evidence, the Plaintiff’s evidence, if not shaken in cross-examination, stands uncontroverted, and a bare statement of defence unsupported by evidence amounts to no more than an assertion. Here the Respondent called no evidence at all. The Appellant’s testimony and documentary evidence therefore fell to be weighed and evaluated as an essentially unrebutted case. Therefore the issues in the dispute were capable of being determined in his favour in absence of any rebuttal from the defendant. 3. In applying the doctrine of preponderance of evidence it is all about the scale of justice. In a criminal case the evidence must tip the scales so far down that there is no room for reasonable doubt. In a civil case if one side’s herein being the Claimant or Plaintiff or Appellant’s evidence has a 51% chance of being true compared to the other side’s of 48 or 49% the Court would rule in favour of the 51% side. That is what is called the balance of probabilities. In the law of evidence under Section 107 (1) it provides as follows; *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. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person* 1. This is what the Court had in mind in the case of *Narayan Govind Gavate Etc vs State of Maharashtra decided on 11th October 1997*. Thus the Court said: *The result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the, balance in favour of another. Such weighment always takes place at the end of a trial or proceeding which cannot, for purposes of this final weighment, be split up into disjointed and disconnected parts simply because the requirements of procedural regularity and logic, embodied in procedural law, prescribe a sequence, a stage, and a mode of proof for each party tendering its evidence. What is weighed at the end is one totality against another and not selected bits or scraps of evidence against each other. (See also the principles in Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] eKLR, Miller v Minister of Pensions [1947] 2 All ER 372 and Mbuthia Macharia v Annah Mutua & Another [2017] eKLR)* 1. This is the threshold issue upon which this appeal shall stand determinedas between the Appellant and the Respondent. It is the law in Kenya that parties are bound by the pleadings. The Court in the case of *Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR,* A C Mrima stated as follows on the issue: *It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: - “…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”* 1. In this legal system, to prove negligence in Kenyan Courts the Plaintiff or the Claimant must show a duty of care, a breach of that duty, and the same resulted in some form of injury capable of being assessed for purpose of compensation and the prove is on a balance of probabilities by way of evidence. The Court in the case of *Ng Chun Pui and Ng Wang King v Lee Chuen Tat et al [198] UK PC 7* remarked as follows ion the burden and standard of proof in a negligence matter like the one before this Court: *“The burden of proving negligence rests throughout the case on the Plaintiff. Where the Plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the Plaintiff to discharge the burden of proof by inviting the Court to draw the inference that on the balance of probabilities the defendant must have failed to exercise due care, even though the Plaintiff does not know in what particular respects the failure occurred…… it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”* 1. As it would be seen shortly the evidence before the Lower Court shall be reviewed as it relates to negligence involving this accident which occurred on 31st July 2020 along Kapsabet-Chavakali road in which a collision occurred between motor vehicle KCL 521 A and KBF 150U. **(ii) The date of the accident and the Appellant’s involvement** 1. It is trite that parties are bound by their pleadings, and that evidence at variance with the pleadings falls to be disregarded (*Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR*; *Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR*). In support of the Appellant’s case is the plaint which pleaded the accident, the date it occurred, the injuries suffered and further documentary evidence which included the Police Abstract and the treatment notes showing the gravity of the injuries which flow from the breach of duty of care by the Defendant/Respondent. This Court takes judicial notice that a motor vehicle involved in an accident may fall under the registered owner or what is commonly referred to as beneficial interest. It is difficult to appreciate the findings of the trial Magistrate who dismissed the claim on grounds which I can refer to as technicalities. In the occurrence book of the Police Station there was an accident report involving motor vehicle KCL 521A. That fact was never disapproved by any material evidence to render the outcome of the claim nugatory. 2. The trial Court treated the date discrepancy as effectively fatal. With respect, that was an overreach. A mistaken date in a witness statement, where the pleaded date is corroborated by the contemporaneous police abstract and the hospital records, does not displace the fact of the accident or the Appellant’s involvement in it. I am satisfied, on a balance of probabilities, that the accident occurred on 31st July 2020 and that the Appellant was involved in it as a passenger in motor vehicle KCL 521A. **(iii) Ownership of the suit motor vehicle** 1. On proof of ownership, the governing authority is *Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another (2010) eKLR* (Civil Appeal No. 260 of 2004), in which the Court of Appeal held that where a police abstract is produced and is neither rebutted by evidence nor challenged in cross-examination, it is *prima facie* evidence which may be relied upon as proof of ownership, in the absence of anything else, to the civil standard of a balance of probabilities; it is only where the abstract is challenged by evidence or in cross-examination that the Plaintiff must go further and produce a certificate from the Registrar of Motor Vehicles or other conclusive proof. This accords with Section 8 of the Traffic Act (Cap 403), under which the person in whose name a vehicle is registered is *prima facie* taken to be its owner, the contrary being open to proof. The principle was applied by this Court in *Kibichi v Mathai (Civil Appeal E003 of 2023) [2024] KEHC 4065 (KLR)*, where an unrebutted police abstract, a public document completed by trained officers, was held sufficient proof of ownership on a balance of probabilities. 2. Against that background, the trial Court fell into error in treating a motor vehicle search at the NTSA as the only acceptable proof of ownership. The law does not require an NTSA search where an unchallenged abstract is on record; to insist upon one, and to dismiss the claim for its absence, was to misdirect herself on the applicable standards of evaluating the evidence and its supporting documents. The Appellant produced the police abstract as PExh3; the Respondent led no evidence to rebut it and, on the record before me, did not challenge its contents on ownership or the one in control as a beneficial interest holder at the time of the accident. 3. The Respondent submits that the abstract in fact names a different person (one Jackson Radima) as owner, and that the Appellant sued the wrong party. That contention, however, is made from the bar and is not supported by any evidence: the Respondent called no witness and produced no document, no registration record, no sale agreement, nothing to show that she was not the owner of the suit motor vehicle. As against that, the abstract records the suit motor vehicle’s insurance particulars (Policy Number 03184194, issued by Direct Line Insurance and running from 7th July 2020 to 6th August 2020) in the name of the Respondent, Pamela Munala Ndengu, which the Appellant relies upon as confirming her interest in the vehicle. On the whole of the unrebutted material, and applying Wellington Nganga Muthiora and Section 8 of the Traffic Act, I am satisfied that ownership of the suit motor vehicle by the Respondent was established on a balance of probabilities. I record that this finding rests on the contents of PExh3 as they appear on the record; nothing was placed before this Court, by way of evidence, to displace them. **(iv) Negligence and liability** 1. The Appellant was a fare-paying passenger in motor vehicle KCL 521A. A passenger injured in a collision is, in the ordinary way, an innocent party who bears no part in the negligence that caused the accident, and he is entitled to invoke the doctrine of *res ipsa loquitur* that by the Respondent proving that an accident occurred in circumstances in which, in the ordinary course of things, it would not have occurred without negligence. He discharges the standard and burden of proof in the absence of any explanation from the defendant. These principles were discussed in the case of (*Embu Public Road Services Ltd v Riimi [1968] EA 22*; *Nandwa v Kenya Kazi Ltd [1988] eKLR*). Once such a *prima facie* case is raised, the evidential burden shifts to the defendant to offer an explanation consistent with the absence of negligence. 2. Here, the Appellant’s unchallenged evidence was that the suit motor vehicle was overtaking another vehicle, at high speed, when it collided with an oncoming vehicle an occurrence which, by itself, bespeaks negligent driving. The police abstract recorded the accident and, on the Appellant’s evidence, attributed blame to the suit motor vehicle. The Respondent, for her part, called no evidence whatever to explain the collision or to displace the inference of negligence, and a mere denial in the defence, unsupported by evidence, cannot discharge that evidential burden (*Kenya Bus Services Ltd v Humphrey [2003] eKLR*). The plea of contributory negligence, likewise, was neither supported by evidence nor established. In these circumstances the inference of negligence stands unrebutted. 3. The trial Court’s requirement of “conclusive proof,” and its treatment of the notation that the matter was “pending investigation” as defeating the claim, again applied too exacting a standard. A pending police investigation does not preclude a civil Court from finding, on a balance of probabilities, that a defendant’s driver was negligent. The two enquiries are distinct in our legal system from re-evaluating the record, I am satisfied that the Appellant established a prima facie case of negligence which the Respondent did not rebut, and that liability is proved. As the Appellant was an innocent passenger, and as the Respondent is jointly and severally liable with any other wrongdoer for the whole of his loss, I enter judgment on liability at 100% against the Respondent. **(v) Quantum of damages** 1. In so far as the trial Court is concerned, it dismissed the suit on the basis that liability was not proved on a balance of probabilities. Therefore it made no assessment of damages. It falls upon to this Court, having found liability, to assess quantum, so as to avoid the expense and delay of a remittal to the trial Court for a retrial. In doing so I bear in mind that the assessment of general damages is a matter of discretion guided by awards in comparable cases, and that like injuries should attract like awards (*Kemfro Africa Ltd t/a Meru Express Services v Lubia & Another (No. 2) [1985] eKLR*; *Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR*). 2. According to the medical evidence relied upon by the Appellant, he sustained a head injury together with soft tissue injuries, tenderness to the neck and chest, injuries to both hands, and injuries with bruising and swelling to both knees and both legs. For injuries of this character the Appellant proposes an award of Kshs 250,000, relying on *Lake Naivasha Growers v Muigai Thuka [2020] eKLR*, in which a comparable sum was awarded for severe soft tissue injuries. Taking into account the nature and multiplicity of the injuries, the comparable authority cited, and the effect of the passage of time, I assess general damages for pain, suffering and loss of amenities at Kshs 250,000. This figure is assessed on the injuries as disclosed by the medical evidence on the record, which should be confirmed against the medical report on the file. 3. As to special damages, the law requires that they be specifically pleaded and strictly proved. Save as may be established by receipts or other proof on the record, no special damages are awarded. The Appellant is, however, entitled to interest and to the costs of the suit. **G. Disposition and orders** 1. In my view the trial Court made a decision that goes against the evidence on record, therefore it committed an error of facts and law which is subject to review by this Court. The term judicial discretion is now of general expressions in the law as *Bouvier's Law Dictionary (first edition, published in 1839)* gives a definition: *"The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. Optima led quae minimum relinquit arbitrio judicis; optimus judex qui minimum sibi."* 1. It is trite that discretion in the realm of evidence involves the substance of a trial on the merits and places a greater responsibility on the trial Magistrate to discern the course described by law. This means rules of evidence are always to be considered. In the instant case the trial Court upon analyzing the evidence on record concluded that the case for the Plaintiff has not been made out and proceeded to dismiss the claim all together. It is this exercise of judicial discretion that I have faulted so as to make the following declarations. 2. For the reasons given, the learned trial Magistrate misdirected herself on the proof of ownership, on the effect of the date discrepancy, and on the standard of proof applicable to liability, and arrived at a conclusion against the weight of the unrebutted evidence. The appeal therefore succeeds. I make the following orders: * 1. *The appeal is allowed.* 2. *The judgment and decree of the Senior Principal Magistrate’s Court at Hamisi in PMCC No. E003 of 2021, delivered on 8th July 2024, are set aside.* 3. *Judgment is entered for the Appellant against the Respondent on liability at 100%.* 4. *The Respondent shall pay the Appellant general damages of Kshs 250,000.* 5. *Special damages are awarded only to the extent specifically pleaded and strictly proved on the record.* 6. *Interest shall run on the general damages at Court rates from the date of this judgment, and on any special damages from the date of filing the suit, until payment in full.* 7. *The Respondent shall bear the costs of this appeal and of the suit in the Court below.* 1. Orders accordingly. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 22ND DAY OF JULY 2026.** **……………………………………..** **R. NYAKUNDI** **JUDGE**