[2022] KEHC 14716 (KLR)

Aoro v Were (Civil Appeal E024 of 2022) [2022] KEHC 14716 (KLR) (31 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14716 (KLR)

Republic of Kenya

In the High Court at Siaya

Civil Appeal E024 of 2022

RE Aburili, J

October 31, 2022

Between

Fredrick Onyango Aoro

Appellant

and

Mary Auma Were

Respondent

(An appeal arising out of the Judgement and Decree of the Honourable S.W. Mathenge in the Principal Magistrate’s Court at Bondo delivered on the 19th April 2022 in Bondo PMCC No. 35 of 2020)

Judgment

Introduction 1. This appeal is similar to HCCA E023 of 2022. The difference is that the respondent was the pillion passenger to the respondent in HCCA E023 of 2022, while the respondent in the said appeal was the motorcyclist. The appeal is against liability only. The appellant was the defendant before the trial court whereas the respondent herein was the plaintiff. The respondent sued the appellant herein for general damages, special damages of Kshs. 1,300 and costs of the suit with interest for the injuries she sustained as a result of a road traffic accident that occurred on the April 8, 2018 when the appellant’s motor vehicle registration number KCH 369Y hit the respondent who was a pillion passenger on motor cycle registration number KMEC 241C, from which she pleaded that she was lawfully alighting when the appellant’s motor vehicle was carelessly and negligently driven that it made a U-turn and violently knocked her thereby injuring her seriously.

2. The appellant filed his defence and denied the claim, putting the respondent and to strict proof of all the allegations in the plaint. He denied the occurrence of the accident and blamed the respondent and the motorcyclist for negligence that resulted in her sustaining the injuries pleaded.

3. The trial magistrate after hearing the suit found in favour of the respondent to the effect that the appellant herein was found liable in negligence at 100%. She then proceeded to award the respondent general damages of Kshs. 110,000 as well as special damages of Kshs 500 together with costs of the suit and interest at court rates.

4. Aggrieved by the said judgment on liability alone, the appellant preferred this appeal vide a memorandum of appeal dated May 16, 2022, raising the following grounds for appeal:a.That the learned trial magistrate erred in fact and in law by apportioning 100% liability to the appellant (defendant) without considering the circumstances of the case.b.That the learned trial magistrate erred in law and in fact in finding in favour of the respondent against the appellant when there was totally no evidence of proof of negligence on the part of the appellant.c.That the learned trial magistrate erred in fact and in law in failing to consider the appellant’s submissions on liability by completely disregarding the submissions and authorities of the appellant and as a result arrived at unjustified decision on liability.

5. The parties filed submissions to canvass the appeal.

The appellants’ submissions 6. On behalf of the appellant, it was submitted that the accident did not occur as pleaded by the respondent but that instead, it was the respondent’s motor cycle that rammed into the appellant’s motor vehicle. The appellant’s counsel submitted that no evidence was tendered to proof the alleged over speeding of the appellant’s motor vehicle and that the respondent failed to proof her case on a balance of probabilities as provided in sections 107, 108 and 109 of the Evidence Act.

7. It was further submitted that the testimony of PW3 amounted to hearsay as he was not the investigating officer and further, that PW3 did not have the police file in court. It was submitted that the Police abstract produced in court showed that nobody was to blame for the accident and as such, it could not be the basis upon which to apportion blame.

8. The appellant thus submitted that the respondent’s testimony as well as that of PW3 could only be relied on to prove that an accident did occur and not on who was to blame for the accident.

9. It was submitted that the respondent failed to prove the facts constituting negligence on the appellant’s part as required by law as was held in a myriad of cases and as such, her case should have failed as it was based on mere allegations.

10. The appellant submitted that the respondent failed to call an eye witness to corroborate her allegations of negligence on the appellant’s part and thus the respondent failed to prove her case on a balance of probabilities. Reliance was placed on the case Daniel Kimani Njoroge v James K Kihara & Another [2011] eKLR where the superior court upheld the trial court’s finding dismissing the plaintiff’s case for the reasons that the plaintiff failed to call an eye witness and/or any other evidence and thus his failure to prove negligence on a balance of probabilities.

11. It was submitted that the trial magistrate failed to consider the appellant’s submissions and evidence adduced during the trial as she failed to refer to the same in her judgement in the section of analysis and determination and thus ended up making a speculative judgement that was against the evidence adduced.

The respondent’s submissions 12. On behalf of the Respondent, it was submitted that she had proved her case on a balance of probabilities as required in civil cases and as was defined in the case of Kanyungu Njoguv Daniel Kimani Maingi[2000] eKLR, and amplified in the case of Kirugi & Anorv Kabiya& 3 Others[1987] KLR 347 that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.

13. The respondent’s counsel further submitted that the question of liability in road traffic cases was discussed by the Court of Appeal in the case of Michael Hubert Kloss & Another v David Seroney & 5 Others(2009) eKLR where the court held inter alia that “a determination of liability in a road traffic accident relates to answering the question,” who was responsible for the accident”?”

14. It was submitted that based on the evidence adduced before the trial court, there was no contention that the respondent was the pillion passenger of the motorcycle and further that the appellant had not demonstrated how the respondent’s motor cycle rider’s failure to wear a helmet or a reflector jacket would have contributed to the occurrence of the accident.

15. The respondent’s counsel submitted that from the evidence on record, the appellant’s driver was the one to blame for the accident as was clearly demonstrated by the respondent in her testimony that she was hit while alighting from the motorcycle which was not on the road as her rider had parked the motorcycle so that she could alight and supported by documentary evidence produced in court. It was further submitted that she was present at the scene of the accident and thus was the best suited person to testify in her case as to how the accident occurred as she did and that she pointed out how the appellant’s driver was negligent when driving thus causing the accident herein.

16. The respondent’s counsel submitted that the burden of proof in civil cases was on a balance of probability and that there was no requirement in law that the respondent was supposed to avail an eye witness to testify as to the circumstances of the accident when she was present when the accident occurred.

17. It was submitted that the respondent proved her case on a balance of probabilities as was held in the case of Sammy Ngugi Mugo v Mombasa Salt Lakes Ltd & Another [2014] eKLR where the court reasoned that the standard of proof in civil cases is based on a balance of probability unlike in criminal/traffic cases which is beyond reasonable doubt.

18. Counsel for the respondent submitted that that the evidence of DW3 (the appellant’s driver) had glaring inconsistencies as to how the accident occurred and as such, raised doubts as to the circumstances under which the accident happened as per DW3’s contradictory version depicted during the trial as was captured by the trial magistrate in the judgment and that the trial magistrate did not err in law or in fact by disregarding the evidence of DW3 which was contradictory both in the written statement and his oral testimony in court. that the appellant’s driver gave inconsistent and contradictory testimony which evidence raised serious doubts as to the truthfulness of such a witness and therefore such evidence ought not to be considered by a trial court.

19. It was submitted that the trial court fully took into account the relevant factors being the pleadings, evidence on record and the submissions by the Appellant and Respondent and found that the appellant was wholly liable for the accident and that the respondent tendered sufficient evidence against the appellant on liability on a balance of probability whereas the appellant tendered contradictory and inconsistent evidence on the circumstances of the occurrence of the material accident thereby rendering the appellant’s evidence hearsay with no evidentiary value attached to it.

Analysis and determination 20. As a first appellate court, this court is under a duty to examine matters of both law and fact and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing conclusions from that analysis, bearing in mind the fact that it did not have an opportunity to see and hear the witnesses first hand. This principle is captured under Section 78 of the Civil Procedure Act which espouses the role of a first appellate court which is to: ‘…… re-evaluate, reassess and reanalyse the extracts of the record and draw its own conclusions.’ The above provision was buttressed by the Court of Appeal in the case of Peter M Kariuki v Attorney General[2014] eKLR where it was held that:“We have also, as we are duty bound to do as a first appellate court to reconsider the evidence adduced before the trial court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence. See Ngui v Republic, (1984) KLR 729 and Susan Munyi v Keshar Shiani, Civil Appeal No 38 of 2002 (UR).”

21. Having considered all the grounds of appeal, the evidence adduced before the trial court and submissions by counsel for the appellant and the respondent, I find the sole issue for determination is whether the trial court erred in law and fact in finding that the appellant herein was wholly liable for the material accident. To resolve this issue, I will set out the principles of law applicable and reassess the evidence adduced before the trial court.

22. The burden of proof lies on he who alleges and, in this case, it was upon the respondent to prove his/her case before the trial court on a balance of probabilities. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

23. The question is what amounts to proof on a balance of probabilities. Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 stated that:“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 that 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.”

24. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal held that:“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”

25. However, as was observed by the Court of Appeal in Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR:“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v 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…’”

26. Reevaluating the evidence adduced before the trial court, the evidence by the Respondent who was the plaintiff claimant was that on the April 8, 2018 at about 5pm, she was alighting from a motorcycle which had stopped and parked at the stage from Usenge towards Kisumu direction when at Guba stage, Bondo the appellant’s motor vehicle matatu driven by the appellant’s driver arrived at the stage from the Kisumu direction and made an abrupt U-turn as if to turn back and face the Kisumu direction but the front side of the said motor vehicle went off the tarmac and knocked the respondent and her rider who fell down with the motor cycle and they sustained injuries. That driver of the offending motor vehicle got out and escaped leaving the vehicle behind.

27. In cross-examination, the respondent stated that she was not aware that any person had been charged with a traffic offence. She maintained that they were knocked while they were on the left side of the road. And that the said vehicle was speeding although she could not see its speedometer. She also stated that she was not wearing a reflector jacket or a helmet.

28. The respondent also called PW3 IP Maloba from Bondo Police Station who nonetheless did not have the police file but produced the police abstract of the accident motor vehicle. He was not the investigating officer of the traffic case. He stated that the investigating officer IP Cheror was on transfer to Mau Summit and that nobody was charged for a traffic offence following the material accident involving the respondent and the appellant’s motor vehicle. He confirmed that the respondent herein was a pillion passenger on the motor cycle which was knocked by the appellant’s motor vehicle.

29. DW3, the appellant’s driver adopted his witness statement in which he stated that on the material date, at about 1700hours, he was driving the appellant’s motor vehicle along the Kisumu –Bondo road when at Guba, an unknown motorcycle suddenly joined the road without due care and in the process, they collided. He stated that the two people were slightly injured and that he did not stop because of the other motorcycle riders nearby so he went to report to the Police Station.

30. In his sworn oral testimony, DW3 stated that the motorcycle hit him on his right side and hat that is the side that was damaged. He stated that he blamed the motor cyclist. He also stated that he stopped and that he had indicated but the rider rammed into him.

31. In cross-examination, DW3 stated that he was at a junction along the Kisumu-Usenge road and had stopped to give way for a motorcycle that was on the opposite side to pass. DW3 further stated in cross-examination that he was driving at 10kmp/hr. He did not have the vehicle inspection report.

32. When questioned by the court, DW3 admitted that he was at a junction. In re-examination, DW3 stated that the motorcyclist entered abruptly and rammed into him.

33. The above evidence by DW3 was adopted as evidence in CC No. 35 of 2020 which is subject of HCCA E023 of 2022.

34. From the evidence adduced before the trial court, it is clear that whereas the respondent was consistent in her testimony on what happened on that material day, the appellant’s driver gave several versions of how the accident occurred. The issue therefore is whether the respondent or her rider ought to have been held liable or whether the respondent and her rider contributed to the occurrence of the accident and if so, in what proportion?

35. In this case, this court is being called upon to interfere with the trial court’s finding on liability. InKhambi and Another v Mahithi and Another[1968] EA 70, it was held that:“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”

36. The same position was taken inIsabella Wanjiru Karangu v Washington MaleleCivil Appeal No 50 of 1981 [1983] KLR 142 andMahendra M Malde v George M Angira Civil Appeal No 12 of 1981, where the Court stated that apportionment of blame represents an exercise of a discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.

37. It is not disputed that the pleaded accident occurred or that the respondent and her rider were on the motorcycle when the accident took place. As earlier stated, the respondent in her testimony was firm that her rider had stopped off the road for her to alight. The rider in his testimony in CC 35 of 2020 admitted that he did not have a riding license but that he was in the process of procuring one although he did not adduce evidence of the same. Such conduct should not go un-condemned and it should not be rewarded.

38. On his part, DW3 gave several versions of how the accident occurred. In one version, he had stopped at a junction for a motorcycle to pass when the motorcycle instead rammed into him. In another version, DW3 was driving along when the motorcycle suddenly joined the road without due care and in the process, they collided. In cross-examination, DW3 stated that he was driving at 10kmp/hr.

39. In determining liability, the court must consider the facts of the case and conclude as to what mostly contributed to the cause of the accident. The court will consider the manner of driving, identify the person who was at fault and place the blame on him. Where the facts and circumstances are such that it is not clear who was at fault and who was to blame, the court will apportion liability.

40. I must however warn that the fact that the motor cycle rider had no driving licence had nothing to do with the cause of the accident. Once the plaintiff discharges the burden of proof as required under Section 107 of the Evidence Act, that the driver was to blame for the accident for driving the vehicle in a negligent manner as pleaded in the plaint, and as per the evidence adduced in court on oath, the failure to have a driving or riding licence cannot be the reason for the accident unless there is proof that the rider drove in such a manner that the failure to have the driving licence was the contributory factor to the material accident.

41. The above position was considered in the case ofJoshua Okello Ochieng v Francis Ouko Odira[2021]e KLR where Ochieng FA stated that:“Having re-evaluated the evidence on record, I find that the accident was caused by the negligent manner in which the Defendant’s vehicle was being driven. He was driving at a high speed; and he hit the Plaintiff’s motor bike, which was literally off the road, on the Plaintiff’s side.The trial Court held that the Plaintiff was 50% liable for the accident because:“… the plaintiff was not supposed to be riding as he did not have a valid licence.”With utmost due respect to the learned trial magistrate, there is no basis for the conclusion that the failure to have a valid driver’s licence caused the accident.In Elizabeth Gathoni Thuku v Peter Kamau Maina & Another Hcca No 92 Of2017 C Kariuki J stated that:“The unlicenced motorcyclist is not automatically liable simply by virtue of being without a licence, rather it lies on who acted carelessly in some way, causing the collision.”

42. As was further observed in the above Joshua Okello Ochieng v Francis Ouko Odira Case:“Liability in a civil claim is an issue to be determined on evidence which shows the person whose actions or omissions caused the accident. Therefore, whereas it amounts to a traffic offence to ride a motor cycle without a valid driver’s licence, it is possible that the person who had no valid licence could have been driving so carefully that he cannot possibly be at fault for the accident. The converse is also possible; that a driver who holds a valid driver’s licence could be so negligent that the accident is wholly attributable to his said negligence.”

43. In Tom Obita Ndago & Another v Alfonse Omondi Otieno [2015] eKLR , the court considered an allegation by the defence during trial in the lower court that the fact that the driver was carrying an excess passenger could have caused the accident was refuted by the appellate court which stated:“Thus the rider and his passengers weight was not the reason why the riders motor cycle fell but the fact that the 1st appellant hit them”.

44. In the case ofElizabeth Gathoni ThukuvPeter Kamau Maina & Another Hcca No 92 Of2017 C Kariuki J held thus and I agree that:“The unlicenced motorcyclist is not automatically liable simply by virtue of being without a licence, rather it lies on who acted carelessly in some way, causing the collision.”

45. As was correctly observed by the learned Judge, liability in a civil claim is an issue to be determined on evidence which shows the person whose actions or omissions caused the accident.

46. Therefore, whereas it amounts to a traffic offence to ride a motor cycle without a valid driver’s licence, it is possible that the person who had no valid licence could have been driving so carefully that he cannot possibly be at fault for the accident.

47. The converse is also possible; that a driver who holds a valid driver’s licence could be so negligent that the accident is wholly attributable to his said negligence.

48. This is the same situation here; where the evidence by the respondent was clear that the cause of the accident was the appellant’s driver (DW3) who made a U-turn and, in the process, hit the motor cycle which was parked beside the road at a stage to allow the pillion passenger alight.

49. Accordingly, I find no merit in the claim that the trial magistrate should have found the respondent or her rider liable for the accident or that they contributed to the occurrence of the accident simply because he did not have a driving licence at the time of the occurrence of the accident, as alleged in the submissions filed in HCCA E023 of 2022.

50. The appellant also claimed that the respondents did not call eyewitnesses hence they did not prove their cases on a balance of probabilities. On the question of whether in every case there must be an eye witness, the Court of Appeal in Abbay Abubakar Haji v Marain Agencies Company &Another [1984]4 KCA 53 dealt with the matter where all parties to a motor accident were killed leaving no witnesses. The Court stated:“It is the clear duty of the court to arrive at a finding on the facts, however difficult the circumstances may be, if that is at all possible, although that duty does not extend to supplying a theory as to what happens when the inferences from the primary facts do not inevitably point that way.”

51. It follows therefore, that a case cannot collapse merely on the basis that there were no eye witnesses. The court, on the basis of circumstantial evidence or evidence adduced by the defendant that tends to prove his involvement in the alleged act can infer culpability on the part of the defendant even where the victim in the material accident dies on impact. (see this court’s decision inEWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR).

52. In this case, I find that there was absolutely no factual evidence that the Respondent and or her rider were to blame in any way, for the accident, considering the contradictory testimony of DW3 as to how the accident occurred, which contradictions are material and raise doubts as to its veracity and truth.

53. I also find that the trial court analyzed the evidence adduced by all the parties before arriving at her decision on liability and quantum hence the claim that she did not consider submissions is far-fetched. Furthermore, submissions could not substitute for evidence which was on record. They remain just that.

54. Therefore, having re-evaluated the evidence on record, I find that the material accident was caused by the negligent manner in which the Defendant’s /appellant’s vehicle was being driven, by the driver thereof making a U turn at the place where the respondent and her rider were off the road and knocking the respondent and her rider thereby injuring them. I find no fault in the findings of the trial magistrate on liability, which I uphold and dismiss this appeal herein with costs assessed at Kshs20,000 in favour of the respondent. I so order.

55. This file is closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 31ST DAY OF OCTOBER, 2022R.E. ABURILIJUDGE