https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10580

**REPUBLIC OF KENYA** **JURISDICTION:** IN THE HIGH COURT, BUNGOMA. **FILE NUMBER:** HC CIVIL APPEAL No. E107/2025. **BETWEEN:** ALBERT PHILIP CHEPSIROR & KAVIA PANEL BEATERS & 2 OTHERS. **CORAM:** R.K. ONDIEKI- JUDGE **HEARD:** 20th May, 2026. **DELIVERED:** 9th JUNE, 2026. **JUDGEMENT OF THE COURT:** *(Being an Appeal against the Judgment by Hon. Ruth B.N. Maloba(SPM) in Chief Magistrate’s Court at Bungoma Case No. E444 of 2019, Delivered on 19th June, 2025).* 1. **Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing.** Lord Simon’s speech in *Watt Vs. Thomas [1947] AC, 484* at p. 485 is recorded that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight**.** Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. 2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. 3. In *Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123*it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the 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 demeanour of a witness is inconsistent with the evidence in the case generally. 4. In Lord Morris’ speech in *H West & Son Vs Shephard, [1964] AC 326*, said that the difficult task of awarding money compensation is a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. It is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere, there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment. 5. Lord Morris further said in Jag Singh Vs Toong Fong Omnibus Co Ltd *[1964] 1 WLR 1382*, that, it need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion. 6. **In his amended Plaint dated 19th December, 2019, the Appellant sought among other reliefs; general damages both under the Law of Reform Act and Fatal Accidents Act, reasonable funeral expenses, special damages of Kshs2,025, costs and interest. In their defence dated 25th January, 2020, the Respondents raised the issue of *locus standi* on the part of the Appellant to sue, registration of ownership, possession and Insurance Policy of the accident Motor Vehicle. Additionally, the Respondents catalogued a myriad of negligence on the part of the driver of Motor Vehicle Registration KBU 116K, and on the part of the deceased.** 7. **Philip Chepsiror (PW1) told court that he the deceased is his first-born son and adopted his statement recorded on 19th December 2019 as his evidence and all the documents 1 to 43 produced as Exhibits, respectively. Under cross examination, the witness said that he did not witness the accident, happen. The deceased used to pay school fees for her daughter Tasha but no documents were produced to that effect. Appellant said that he deceased earned Kshs200,000/ and used to support him and his siblings. The Appellant spent Kshs300,000/ in funeral.** 8. **Police Woman Jackline Were (PW2) told court that indeed on 5th October 2019, an accident occurred involving Motor Vehicle Registration Number KCM 090M and KBU 116X. The deceased herein perished in the accident. The witness produced Police Abstract as Exhibit 1 in evidence. Under cross examination, the witness said that he cannot tell who to blame for the accident.** 9. **Corporal Ayanko Ojwang(DW1) produced Occurrence Book(OB) in respect to this accident. It was his testimony that the Toyota Saloon was heading to Sirisia Town and upon arrival at the location of the accident, it swerved onto the right side of the road and hit a lorry Mitsubishi which slipped over the saloon and consequently, the driver of the saloon and its passenger(deceased) died on the spot. Under cross examination, the witness said that he cannot tell the circumstances under which the accident occurred as he was not the investigation Officer. There were erasures on the exact point of impact of the road.** 10. **In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;** 1. **That the learned Trial Magistrate erred in law and fact by failing to find that the Appellant had proved liability against the Respondent.** 2. **That the learned Trial Magistrate erred in law and fact by dismissing the Appellant’s case without regard the Standard of proof in civil cases.** 3. **That the Judgement by the Trial Magistrate erred is poorly reasoned and bad precedent.** 11. **Reasons whereof, the Appellant seeks that the Appeal be allowed and the decision by the Trial Magistrate set aside and the same be substituted with an Order allowing the Appellant’s case with costs in the primary school suit as well as in this Appeal.** 12. **The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.** Analysis and Determination: 1. This court notes that the appellant settled on a single issue for determination on whether or not the appellant proved his case on a balance of probability. The [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46) is clear enough upon whom the burden of proof lies. Section 107 provides that 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 facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities. 2. Denning J. in *Miller Vs Minister of Pensions [1947] 2 ALL ER* discussing the burden of proof said that the 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 the tribunal can say: *‘We think it more probable than not’*, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof 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’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 3. **Rajah JA**in***Britestone Pte Ltd Vs Smith & Associates Far East Ltd*** {*2007} 4 SLR (R} 855* succinctly states **that, t**he court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. 4. **Lord Brandon** inRhesa Shipping Co SA Vs Edmunds remarked that no Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take. Simply put, proof of a legal burden is a principle which applies in all cases without exception. 5. In ***Siraj Din Vs Ali Mohamed Khan (1957) EA 25*,** it was held that *t*he quantum of proof required in civil litigations is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other as cited in BWK Vs EK & Ano. (2017) eKLR. 6. In the case of ***Susan Kanini Mwangangi & Another Vs Patrick Mbithi Kavita (2019) eKLR*** where there were no eye witnesses to the accident that resulted to the deceased therein sustaining fatal injuries, the court on the issue of lack of eye witnesses said t**hat is not necessarily fatal as long as there is credible evidence on which negligence can be inferred. Such inference may be made where the Plaintiff was a passenger in the vehicle that got involved in an accident in which event *res ipsa loquitor* may be successfully involved**. 7. In the case of ***P.A Okello & M.M Nsereko T/A Kaburu Okello & Partners Vs Stella Karimi Kobia & 2 Others (2012) eKLR***, the Court of Appeal held that **vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority. Put differently,** vicarious liability mostly comes into play when an employee has acted in a negligent manner for which the employer will be held responsible. 8. In this appeal, it was in evidence that the Appellant, PW2 and DW1 did not witness the accident. The Appellant did not call an eye witness to unfold the circumstances under which the accident occurred. To my mind and in view of the circumstances of this case, the Traffic Officers and in particular the Investigation Officer was obligated to adduce evidence on the manner in which the accident occurred. However, DW1 testified in court and said; **“the investigation officer was PC Okeyo. He was transferred to Central Police Station. The accident was fatal. It occurred on 5th October, 2019 at about 15:10 hours at Namang’ofulo area along Sirisia-Cheptais Road. It involved Motor Vehicles Registration No. KBU 116X Toyota Saloon car that was being driven by Moses Chemoyiek aged 30 years now deceased…It happened that the Toyota saloon was heading towards Sirisia Town from Cheptais. On reaching the location of the accident, the driver lost control of the Motor Vehicle and swerved to the right side of the road. This is when it did hit the Mitsubishi lorry which was coming from the opposite directions…”** Under cross examination, the witness said that**; ‘I was not at the said office by the time of the accident. It is true that I cannot tell the circumstances surrounding the accident because I was not the Investigation Officer….in line 16 of the OB abstract, there is an erasure and the initial word there is left and not right… I cannot tell from this OB extract if Kelly Kiboi contributed to the accident…”** 9. The evidence is clear that the vehicle which strayed to the other line according to the cross examination of DW1, was Mitsubishi Lorry KCN 090M which slipped over the saloon car and as a result, the driver and the deceased, perished. DW1 a police officer said under cross examination said that that there was an erasure of the initial word left and inserted with right. In re-examination, the witness was not asked to clarify this material discrepancy. As it were, there was no rebuttal to this piece of evidence. In view of my finding, I also note the driver of the Mitsubishi Lorry, one John Wanjala Wabwile was obligated in law upon shifting of the evidentiary burden to discharge it. Consequently, from the foregoing we can ably draw inference that had the said driver been summoned as a witness, he would have given favourable evidence to the appellant and adverse to the Respondents. **Disposal:** 1. The court makes a finding that the trial Magistrate erred in law and fact in dismissing the Appellant’s claim in the primary suit. The finding is hereby set aside. The Respondent is held 100% liable for the accident. Costs to the appellant. Delivered virtually this 9th June, 2026 in the presence of the Appellant, the Respondent and Brian- Court Assistant. Hon R.K. Ondieki Judge.