[2025] KEHC 5275 (KLR)

Desi (Suing as the Legal Representative of the Estate of Abdi Yissuf Ahmed) v Ndungu (Civil Appeal E028 of 2023) [2025] KEHC 5275 (KLR) (12 March 2025) (Judgment)

Neutral citation: [2025] KEHC 5275 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E028 of 2023

AN Ongeri, J

March 12, 2025

Between

Yusuf Ahmed Desi

Appellant

Suing as the Legal Representative of the Estate of Abdi Yissuf Ahmed

and

Patrick Kabiru Ndungu

Respondent

(Being an appeal from the Judgment of Hon. T. N. Sinkiyian (PM) in Voi Civil Case No. 151 of 2019 delivered on 23rd June 2023)

Judgment

1. The Appellant filed this suit on behalf of the representative of the Estate of Abdi Yusuf Ahmed against the Respondent who is the owner of motor vehicle registration No. KCT 826M which the Appellant blamed for causing an accident on 10th February 2019 along Mombasa – Nairobi highway at Miasenyi.

2. The Appellant’s evidence was that the deceased Abdi Yusuf Ahmed was lawfully resting along Mombasa – Nairobi Road with PW2 Hassan Ahmed Dena when motor vehicle registration No. KCT 846M veered off the road and ran over the deceased who was lying down beside the road.

3. The Respondent blamed the deceased for lying on the road without due regard for his safety. He denied that he hit the deceased.

4. There was evidence that PW2 was an eye witness to the accident. He said the deceased was hit by a black car that was overtaking which swerved off the road to avoid a collision with a lorry.

5. An inquest was conducted which established that the deceased was not hit by the Respondent’s motor vehicle. The inquest judgment was produced as an exhibit in the trial court.

6. The trial court dismissed the Appellant’s suit for reasons that negligence was not proved against the Respondent.

7. The Appellant has appealed to this court against the dismissal of the suit on the following grounds:-i.The court erred in law and fact in finding that the Respondent was not liable for the accident and subsequent death of the deceased.ii.The court erred in law and fact in raising the degree of proof in a civil suit to that of beyond any reasonable doubt to the detriment of the Plaintiff.iii.The court erred in law and fact in transferring the burden of proof to the Appellant.iv.The court erred in law and fact by placing the blame of a non-party to the suit on the Appellant.v.The Honourable court erred in law and fact and misapplied the law on causation in a fatal injury claim.vi.The honorable court erred in law and fact in giving a contradictory judgement on the issue of liability in view of the Respondent’s admission of having run over the deceased.

8. The parties filed written submissions as follows:- The appellant submitted that the respondent was at the material time the registered owner of Motor Vehicle Registration No. KCT 826M. That on 10/02/2019 the respondent was driving the said Motor Vehicle from Mombasa to Nairobi along Mombasa –Nairobi highway when he overtook a trailer from the right side but encountered an oncoming trailer from the left side, to avoid collision he swerved to the left side and ran over the deceased who died instantly.

9. Further, that the appellant in the capacity of a legal representative and administrator of the estate of the deceased (Abdi Yusuf Ahmed) instituted civil suit no 151 of 2019 against the respondent in Voi Chief Magistrate Court claiming for; special damages, damages under the provisions of the Fatal Accidents Act and the Law Reform Act and costs of the suit and interest.

10. That the Learned Magistrate in judgement dated 23rd /June/2023 held that the Respondent was not liable for the accident. (see page 82 of the record of appeal).

11. The appellant being aggrieved preferred this appeal. That the appellant testified as to the manner in which the accident occurred and produced several documents in support of the claim. He called PW2 an eye witness who testified that on 10th February, 2019 the respondent was driving Motor Vehicle Registration No. KCT 826M along Mombasa-Nairobi Highway from Mombasa to Nairobi when at Miasenyi area he overtook a trailer from the right side but encountered an oncoming trailer at the left side to which he drove and veered off the road to the extreme right running over the deceased who was who was facing the Nairobi direction. That PW2 ran after the respondent and informed him he had ran over the deceased who was lying dead on the ground.

12. That the plaintiff further produced police abstract to prove the deceased involvement in the accident and a post mortem report confirming that the deceased had lost his life due to injuries sustained as a result of the accident.

13. That the respondent testified that on 10/02/2019 around 06:00am he was driving Motor Vehicle Registration Number KCT 826 M Toyota Auris from Mombasa heading towards Nairobi. That on reaching Miasenyi area he overtook a trailer from the right side but encountered an oncoming trailer on the left side.

14. That to avoid the collision he swerved off the road to the right side to avoid the accident and stood at a distance, a young man ran after him telling him he had run over the deceased. That the defendant denied having seen anyone as he had only seen the yellow jerricans and on checking, he found a person lying down and blood had stopped oozing from his body, and was carried in the Defendant’s car to the hospital where he was pronounced dead on arrival.

15. That the court only considered and placed reliance on the evidence of the police at the inquest and expert evidence that was adduced in Voi Pmcc Inquest No.4 of 2019 that Motor Vehicle Registration Number KCT 826 M that Toyota Saloon was inspected on 11th / 02/2019 one day after it was involved in an accident and the vehicle had neither damages nor pre –accident defects.

16. The appellant submitted that in making the judgement the court only considered and placed reliance on the inquest evidence by the investigating officer and experts which is a mere opinion.

17. In the judgement at paragraph 31 (see page 78 of the record of appeal) the Magistrate stated that“.................. the court agreed the investigating officer P.C Nyachae that KCJ was not found to be responsible for injuries inflicted on the deceased”. The Magistrate further stated at paragraph 32 of the judgement (see page 78 of the record of appeal).

18. That at paragraph 32 of the judgement (see page 78 of the record of appeal) the trial Magistrate stated further as follows;“That at the inquest P.C Nyachae found the eye witness on account of Hassan questionable.”

19. That at paragraph 33 of the judgement (see page 78 of the record of appeal) the magistrate held that:“According to Dw1 driver of the vehicle, Pw2 stopped him and told him either a canter or a lorry had hit the deceased. He was not sure, DW1 said Pw2 changed his story after a long talk with his with the deceased relatives, when they came to the hospital, she further stated the officer’s evidence in the inquest PC Nyachae supports renders likely than not Dw1 position that PW2 was uncertain as to which vehicle had hit the deceased.”

20. The appellant relied on the case of Shah And Another Versus Shah And Others [2003]1 E.A 290 where it was held;“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so”

21. Further, that the respondent’s evidence and the facts of the accident all support the proposition that the deceased died as a result of being run over by the respondent’s Motor Vehicle. The respondent’s vehicle was on the road and at the accident scene.

22. That PW2 who was the only eye witness at the scene and that he saw the respondent’s Motor Vehicle run over the deceased. That the court disregarded and underrated PW2 evidence which was a fatal error.

23. That in the judgement at paragraph 31(see page 77 of the record of appeal) The Learned Magistrate clearly stated that;“in the inquest as shown in Defence Exhibit 1 the court found PW2 Story to be doubtful”, At paragraph 30 of judgement (see page 77 of the Record of appeal) the Magistrate stated “Either of those scenarios portrays PW2 the eye witness relied upon by the plaintiff is not credible at all”

24. At paragraph 36 of the judgement (see page 79 of the record of appeal) the magistrate stated that;“from the circumstances of the case court finds it likely that PW2 may have witnessed how the deceased was hit and at paragraph 37 of the judgement (see page 79 of the record of appeal) the magistrate further stated “................................ It is possible that Pw2 out rightly lied about bribery allegations which makes him unreliable witness.”

25. That further, the respondent admitted that indeed he was at the scene of the accident and his vehicle veered and went off the road. Which evidence was corroborated by PW2 who saw him run over the deceased.

26. The appellant submitted that by relying on the finding of another magistrate in the inquest without making own assessment of the evidence of PW2 the trial magistrate abdicated her duty as to making a proper finding on liability based on the evidence placed before her by the parties.

27. That she also failed to understand that the issue under inquiry in the inquest was completely different from the issue of negligence that she was supposed to make a finding in the case before her.

28. The appellant also submitted that in civil cases the proof is on a balance of probabilities. Then the question is what amounts to proof on a balance of probabilities?

29. In the case of Wllliam Kabogo Gitau –vs- George Thuo & 2 others [2010] 1 KLR 526, Kimaru, J 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 than 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.”

30. The appellant called PW2 who was the only eye witness present together with the deceased. PW2 witnessed with his two naked eyes Motor Vehicle registration No. KCT 826 M Toyota Saloon run over the deceased, he even went ahead and stopped the respondent and informed him. That the appellant went ahead and produced in court the deceased post mortem report and police abstract to prove deceased involvement in the accident.

31. The appellant submitted that he discharged his burden of proof in this case on a balance of probabilities and it was the duty of the respondent to rebut the same or be held liable for running over the deceased.

32. The appellant also submitted that the principle of causation was wrongfully applied in this claim which is a fatal accident claim. The principle of causation is a fundamental concept in law that establishes a causal connection between the defendant’s actions or omissions and the harm or damage caused to the victim.

33. That this is a matter of fatal injury claim that had to be proved on a balance of probabilities; the appellant had relied on the doctrine of Res Ipsa Loquitur. This means that the burden of proof to show that the deceased who cannot speak for himself did not die as a result of the non disputed fact that he was ran over by the respondent’s vehicle was transferred to the respondent.

34. Further, that the appellant called Pw2 who was the eye witness and testified he went ahead and produced the deceased postmortem report and a police abstract to show that the deceased was involved in the accident and it was the respondent’s duty to provide court with evidence that though his vehicle ran over the deceased it did not cause the fatal injuries.

35. That it was an error by the learned Magistrate is at paragraph 27 to blame the deceased for not seeing the car and running away as PW2 did. How was someone who was lying down expected to respond to an emergency in the same way as someone who was standing.

36. Further, that the learned Magistrate shifted blame to a 3rd party who is unknown to the plaintiff the defendant and even the police who visited the scene.

37. The appellant submitted that the casual link necessary in a case of negligence has been established by the plaintiff and corroborated by the defendant.

38. That the details of the presence of blood on tyres for a motor vehicle examined later at a police station far away from where the accident occurred are remote and cannot be relied upon.

39. Further, that the postmortem shows that the part of the body ran over was the head with blood oozing from ears and nose and that those injuries are in agreement with the nature of the accident as described by PW2.

40. The appellant submitted that the Plaintiff proved negligence and that the deceased being on the ground cannot be blamed for not running away as there was clearly no time.

41. That the Magistrate court erred by applying the causation principle in this matter and went ahead to demand proof from the appellant on why the deceased did not run away as PW2 did.

42. The appellant relied on the case of Franklin Maingi Nkunja v Rose Mutuma & another [2021] eKLR, the court stated as follows;” As Lord Denning said in Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 C.B. 291 at p. 321;“the efficiency of causes does not depend on their proximity in point of time.” It is enough that the cause forms part of a chain of events which has in fact led to the injury. What cause will be effective? The Learned Authors of Halsburys Supra at p. 28 say as follows: -“In the absence of intervention by voluntary human action the original act is to be regarded as a cause of the injury, provided that its effect is still actively continuing and has not been superseded by some independent natural cause…….……. If in fact the defendant’s neglect of a proper precaution has caused the injury, the court will not enter into hypothetical inquiry to establish whether the Plaintiff’s injury must necessarily have happened with or without the defendant’s negligence.”

43. In other words, the defendant ’s negligent act or omission is the cause of the Plaintiff ’s injury unless it is shown that there was some voluntary responsible human intervention in the chain of events between the original negligent act or omission and the Plaintiff ’s injury.

44. That the inquiry will be whether the injury can be treated as flowing directly or substantially from the negligence. In Oropesa [1943] 1 All E.R. 211 at 213 Lord Wright said as follows: -“Certain well -known formulae are invoked, such as that the chain of causation was broken and there was a novus actus interveniens. These phrases, sanctified as they are by standing authority, only mean that there was not such a direct relationship between the act of negligence and the injury that the one can be treated as flowing directly from the other.”

45. The respondent submitted that the Appellant herein only called two witnesses; PW1, the father to the deceased, who did not witness the accident occur and whose evidence could not be relied on to prove any negligent acts as pleaded in the Plaint, and PW2.

46. That PW1-Yusuf Desi, the deceased’s father testified and adopted his witness statement dated 2nd May 2019 (Page 7 of the Record of Appeal) and produced documents in the list of documents dated 2nd May 2019 as exhibits 1-10. (pages 8-19 of the Record of Appeal.

47. That PW1’s testimony is purely hearsay as he testified that he was informed on 10th February 2019 that the deceased had been run over my motor vehicle reg no KCT 826M that had allegedly lost control and veered off the road, and blamed the driver of the said motor vehicle for the accident for allegedly driving the motor vehicle carelessly. He was not at the scene of the accident and only went to the hospital after the accident occurred and the deceased had already passed on.

48. That during cross examination, PW 1 testified and confirmed that he was not at the scene of the accident when the accident occurred and therefore did not witness the occurrence of the accident. He testified and confirmed to having been aware of an inquest NO 4 OF 2019 and confirmed to having testified in the inquest and further confirmed being aware of the Court’s decision in the said inquest.

49. The respondent also submitted that PW2-hassan Ahmed Deva testified to knowing the Appellant herein having worked for him. He adopted his witness statement dated 23rd September 2019 as his evidence and confirmed to have been with the deceased when the accident occurred as they waited for a motor vehicle to transport milk to Mombasa in the wee hours of the morning. The milk was in jerricans and was placed on the pavement of the road.

50. That PW2 and the deceased were all on the pavement on the road on the left side of the road. PW2 sat on pavement on the left side of the road while facing Mombasa direction while the deceased laid down on the left side of the road while facing Nairobi Direction.(Line 18-19 of page 40 of the Record of Appeal) And they were talking. (Line 20 of page 40 of the Record of Appeal). That they were conversing the whole time.

51. He further testified that the Respondent’s motor vehicle was headed to Nairobi from Mombasa and was overtaking when he realized he swerved off the road while on the overtaking lane and lost control of the motor vehicle which, according to PW2, ran over the deceased. In his statement, PW2 testified that the deceased died on arrival at the hospital.

52. That during cross examination, he testified and confirmed that he was with the deceased near the road at 6. 00AM when the accident occurred, who was beside the road and fell to the ground(line 16 page 96 of the record of Appeal). He also testified the motor vehicle hit the deceased on the front side while the deceased was lying on the ground as they talked. (Lines 19- 20 of page 96 of the record of Appeal). He stated that the motor vehicle hit the deceased on the front side and that he was lying on the ground when the accident occurred and further that they were talking.

53. That PW2 testified that he was himself seated while the deceased lay down. He confirmed to have testified in the inquest as to the death of the deceased Appellant. His evidence at the inquest is that the motor vehicle ran over the deceased with its right front tire.

54. Further, that the Appellant closed its case without calling the Investigation Officer who conducted investigations as to the occurrence of the said accident, and who testified at the inquest.

55. That the Respondent, Patrick Kabiru Ndungu testified and adopted his witness Statement dated 12th October 2020 and filed 15th October 2020(page 37 of the Record of Appeal) which he adopted as his evidence at the hearing.

56. That he also produced copy of Ruling of the inquest in Voi no 4 of 2019 filed in the Respondent’s list of documents dated 11th September 2020 as Respondent’s Exhibit no 1. (page 29 of the Record of Appeal), being the decision of the Court in Voi on an inquest on the cause of death of the deceased.

57. That the Respondent testified that on the material date, he was headed to Nairobi from Mombasa and upon reaching Miasenyi Area, he was overtaking a lorry ahead of him. That he saw an oncoming vehicle being overtaken by another vehicle and it is when that he saw that he could not manage to go back to his lane, he decided to swerve to the right side of the road and off the road and stopped the motor vehicle.

58. That upon stopping the motor vehicle, he saw someone run towards the motor vehicle and was told that he had run over someone who was sleeping on the road. He denied having ever seen anyone as he had only seen yellow jerricans on the road. On checking, he found a person lying down and blood had stopped oozing from his body, and was carried in the Respondent’s car to the hospital where he was pronounced dead on arrival.

59. The Respondent further testified that at the hospital, PW2 was asked on how the accident had occurred of the accident, and indicated that the deceased had been hit by a canter before the Respondent’s motor vehicle arrived at the scene.

60. The Respondent further testified that PW2 had initially told him and the doctor at the hospital who inquired on what had occurred, when he stated that a canter had run over the deceased but changed his story after speaking to the deceased’s relatives, and after having tried to run away from the hospital.

61. The Respondent further testified that he reported the matter to Voi Police Station, who went to the hospital and later the scene of the accident and later recorded a statement on the occurrence of the accident. He testified that his motor vehicle was inspected by the police and confirmed that there were no dents on the front part of the motor vehicle or any samples of blood from underneath the Respondent’s motor vehicle. Nothing was found that linked him to having caused the accident as alleged.

62. That during cross examination, he confirmed that samples were taken from under his motor vehicle and from the wheels which came out negative. That he only stopped as he had swerved to the right side of the road and needed to get back into his lane when PW2 ran to his motor vehicle. He testified that the deceased was lying on the tarmac and not on the side of the road as alleged by PW2.

63. The respondent relied the decision in re H C minors {1996} AC 563 at 586 – Lord Nicholls explained what comprises a balance of probability as follows;“The balance of probability standard means that a Court is satisfied an event occurred, if the Court considers, that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities, the Court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegations, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established on the balance of probability. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation ……….”

64. That the burden of proving in civil cases is placed on the Plaintiff as was held in the decided case of Nairobi Hcca No.152 Of 2003, Statpack Industries Limited Vs James Mbithi Quoted In Nakuru Hcca No. 320 Of 2004 Timsales Ltd Vs Willy Nganga Wanjohi that:“It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone’s negligence and his injury. The plaintiff must adduce in evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessary as a result of someone’s negligence. An injury per se is not sufficient to hold someone liable.”

65. The respondent submitted that the applicable law on the Onus of Proof is contained under Section 107 and 109 of the Evidence Act. Guided by the Court of Appeal’s holding on the principle of ‘whoever asserts must prove’ in the case of Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi [2013] eKLR, where it was held that;“-----------section 107 of the Evidence Act 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 exists.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”

66. That the burden of proof is on the Appellant. The Appellant in his Plaint pleaded alleged negligent acts on the Respondent’s part under paragraph 4 0f the Plaint (page 3 of the Record of Appeal. It was the duty of the Appellant to demonstrate to the Court the existence of the alleged acts of negligence by adducing evidence in support.

67. The respondent stated that as submitted in the lower Court, despite the Appellant pleading negligence at page 3 of the Record of Appeal, He did not adduce any evidence to prove any of the particulars of negligence pleaded in the Plaint.

68. That no evidence was adduced to prove the speed at which the Respondent was driving at and whether the same was excessive. That the Appellant did not witness the occurrence of the accident and not in a position to give evidence on the speed at which the motor vehicle was being driven, neither did PW2 give any evidence as to the speed at which the said motor vehicle was travelling at. . If at all the motor vehicle was being driven at a high speed and lost control as alleged.

69. The respondent submitted that it is more probable that the motor vehicle would have run over PW2 as well as he lay next to deceased, as well and the jerricans that were on the road. If travelling at high speed, would PW2 had been able to get out of the way?

70. Further, that no evidence was adduced as to whether or not the Respondent was driving the motor vehicle without due care and attention or even failure to have proper control of the motor vehicle.

71. That it is not certain from the evidence of PW2 on how the accident occurred. Is it not highly probable that had the deceased Appellant been run over by the Respondent’s motor vehicle, that his head/skull would have been totally crushed and remains of his body and blood be found underneath the Respondent’s motor vehicle?

72. That in dismissing the Appellant’s suit, the trial Court found that the testimony of PW2 was not credible and could not be relied upon as to the manner in which the accident occurred. That PW2’S evidence was contradictory and full of inconsistencies that leave doubt as to how he alleged to have witnessed the accident occur.

73. First, PW2 testified that he sat on pavement on the left side of the road while facing Mombasa direction while the deceased laid down on the left side of the road while facing Nairobi Direction. (Line 18-19 of page 40 of the Record of Appeal) and were talking to each other the whole time. (Line 20 of page 40 of the Record of Appeal).

74. That during cross examination, he confirmed that the deceased was beside the road and fell to the ground when he was hit (line 16 page 96 of the record of Appeal). He also testified the motor vehicle hit the deceased on the front side while the deceased was lying on the ground as they talked. (Lines 19-20 of page 96 of the record of Appeal).

75. That he stated that the motor vehicle hit the deceased on the front side and that he was lying on the ground when the accident occurred and further that they were talking. He testified that he was himself seated while the deceased lay down.

76. That it is not clear if the deceased was lying down and ran over by the motor vehicle or if he was hit and knocked down and fell to the ground. Further, that it is a mystery only the deceased was allegedly run over and not PW2 who lay alongside him (though facing a different direction) and the jerricans that were beside the deceased. How come, if PW2 saw the motor vehicle veer off the road, and he was sitting or lying, how come he managed to get up and escape being hit and never alerted the deceased?

77. The respondent submitted that PW2’s evidence lacks credibility. First, he testifies that the deceased was lying on the pavement on the side of the road and were conversing when he was run over and at the same time testified that the deceased fell to the ground.

78. That those two actions cannot exist at the same time. It is either the deceased Appellant was lying on the ground and was run over, or he was standing on the side of the road, and knocked down and hence fell to the ground. It is not certain as to what actually happened, whether the deceased Appellant fell to the ground or whether he was already lying on the ground when he was allegedly ran over. It is not the duty of the Court to make an assumption when the Plaintiff has failed to adduce evidence.

79. The respondent further submitted that the Plaintiff failed to discharge his duty of proving his case by failing to call the investigation Officer who carried on investigations after the accident to shed light on how the accident occurred from the investigations conducted.

80. That despite the Appellant producing the police Abstract, the contents of the said Police Abstract do not prove any blameworthiness of the accident reported. From the Abstract, it is not indicated on whether the investigations were concluded and the results thereof. Paragraph 7 of the Police Abstract actually indicates that the matter is “pending under investigations”.

81. That there is no indication of any charges that were likely to be pressed against the Respondent either. The only thing that the police Abstract confirmed is that the accident was reported at Voi Police Station.

82. Further, the injuries sustained by the Deceased do not depict those of someone who was run over by a motor vehicle. it is the Appellant’s evidence that the deceased was run over by the Respondent’s motor vehicle. It is also his evidence that the Police Abstract proves the deceased involvement in the accident and further that the post Mortem Report confirmed loss of life due to injuries. First and foremost, a Police Abstract, as submitted above, only proves that an accident was reported at a particular police station.

83. The respondent also submitted that the cause of death from the post Mortem Report is indicated as “intra-cranial hemorrhage due to road traffic accident”. Also contained in the Respondent’s Exhibit no 1 in line 30-36 of page 31 of the record of appeal).

84. Further, at line 16 page 32 of the Record of Appeal gave insight as to the physical condition of the deceased’s body as;“the deceased’s head was intact save for the bruises on the left ear and the cut at the back of the head”

85. That it follows -that had the deceased been run over by the Respondent’s motor vehicle, then the body, at whatever point would have been crushed . That there is no indication of the skull/head being crushed. That the injuries sustained by the deceased are not indicative of someone who was run over as is purported. How then can a Court of Law Hold that just because a death occurred, and the Respondent is sued, that the Respondent must be blamed for the death when there is no evidence led to that effect?

86. The respondent testified that the degree of proof in civil cases is expounded in the decided case of Miller vs Minister of Pensions [1947] cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chabukati [2014] eKLR, where it was held;“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 the tribunal can say ‘we think it more probable than not’, thus proof on a balance or prepondence 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 unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

87. Further Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] as to what amounts to proof on a balance of probabilities by holding 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 than 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.”

88. That the Respondent’s evidence as an eye witness ought to be considered and as he wishes the Honourable Court to believe in his version of events, ought to adduce evidence in support. The Respondent’s evidence is that he was overtaking a lorry on the right side of the road, and when he realized that he would collide with another vehicle going the opposite direction, decided to swerve to the right side off the road where the motor vehicle came to a stop. The actions of the Respondent to swerve off the road to avoid a head on collision are actions of someone who was careful and attentive on the road and had control of the motor vehicle, which he steered to the side of the road and stopped.

89. That the Respondent testified as to the circumstances that led him to drive his motor vehicle to the right side of the road headed to Nairobi. He testified that he was able to control the motor vehicle and came to stop so that he could re-join the road when he was flagged by PW2. This is not an action of someone who lost control of his motor vehicle as alleged by the Appellant. The fact that the Respondent was able to swerve to the right side of the road to avoid colliding with the other motor vehicle is proof of a driver who had due regard and paid attention to the road by deciding to swerve and get off the road to avoid hitting another motor vehicle.

90. That this also demonstrates that the Appellant had full control of the motor vehicle at all times as he did swerve and stopped the motor vehicle to the right side. Had he not had control of the motor vehicle, your Lordship, he would not have swerved to avoid colliding with another motor vehicle and the motor vehicle would not have stopped safely as it did. Had the Defendant lost control of the motor vehicle, as alleged, he would also have knocked down the jerricans that were on the road as well as PW2. This was not the case.

91. That part of the Respondent’s evidence adduced at the trial in his quest for rebuttal and for the trial Court to appreciate how the accident occurred and the investigations conducted therein, was produced as D.Exhibit no. 1 being Ruling(page 30-35 of the Record of Appeal) which contained the determination of the Court on the inquest as to the death of the deceased as well as all the testimonies of PW1,PW2, the Respondent and other experts. Of most importance is that the said Ruling contains the evidence of the investigating Officer in the police file and the nature of investigations he conducted on the deceased’s death in detail. It is the same evidence that the IO would have testified had he been called at the Hearing by the Plaintiff.

92. The respondent placed reliance on the decision in Timsales Ltd V Willy Nganga Wanjohi [2006] eKLR wherein the Court quoted the decision in Statpack Industries vs James Mbithi Munyao Nairobi HC Civil Appeal No.152 of 2003 (unreported) that;“Coming now to the more important issue of ‘causation’, it is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a re sult of someone’s negligence. An injury perse is not sufficient to hold someone liable.”

93. That this being a case where it is alleged that the deceased was run over by the Respondent’s motor vehicle while he lay down, it is expected and highly probable that that any injured person in this manner would have crushed body parts. It is also highly probable that were the deceased to be run over by the respondents car as alleged, that the deceased would have been dragged by the said motor vehicle for quite a distance owing to the low nature of the type of the motor vehicle. It is equally highly probable that, if at all the deceased was run over by the Respondent’s motor vehicle that remains of the deceased’s blood or flesh would be found under the Respondent’s motor vehicle or tyres.

94. From the foregoing, the respondent submitted that the Appellants Memorandum of Appeal lacks merit and therefore ought to be dismissed with costs to the Respondent herein.

95. This being a a first appeal, the duty of the first appellate court is as stated in the case of Selle v Associated Motor Boat Co. [1968] EA 123 where the Court of Appeal held that:“The first appellate court has a duty to re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. The appellate court must subject the entire evidence to a fresh scrutiny and draw its own inferences. While the appellate court should consider the trial court's findings, it is not bound by them and must form its own independent judgment”.

96. The issues for determination in this appeal are as follows:-i.Whether the Plaintiff proved liability against the Respondent.ii.Whether the appeal should be allowed.

97. On the issue of liability, there is evidence that following the accident, an inquest was conducted being Inquest No. 4 of 2019.

98. I have re-evaluated the evidence adduced during the hearing of this case and at the inquest.

99. There was an eye witness PW2 Hassan Ahmed Dera who said he was with the deceased along Mombasa Road on 10th February 2019 waiting for a vehicle to take their camel milk to Mombasa.

100. PW2 said he was sitting on the left side facing Mombasa while the deceased was lying down facing Nairobi direction.

101. PW2 said he saw the Defendant’s motor vehicle approaching from Mombasa direction overtaking when there was a lorry heading to Mombasa.

102. PW2 said he saw the vehicle veer off the road and it hit the deceased and stopped a few meters from the road.

103. PW2 ran after it and when it stopped he told the driver that he had hit someone.

104. The driver took the deceased to Moi Referral Hospital at Voi where he was pronounced dead on arrival.

105. I have perused the Inquest Ruling and the evidence of the eye witness who testified as PW1 in the Inquest No. 4 of 2019 is essentially the same as adduced in the trial court.

106. Both parties in their submissions relied onthe case of WlLLIAM KABOGO GITAU –vs- GEORGE THUO & 2 others (supra) where Kimaru, J 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 than 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.”

107. In the current case, I find that it is more probable than not that it was the respondent that inflicted the fatal injuries on the deceased.

108. In the case of Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges 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 the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough.”

109. I find that there is evidence that the Respondent veered off the road.

110. The Respondent in his evidence admitted that he veered off the road. He admitted that he was overtaking when he saw an oncoming lorry.

111. There is no evidence that there was a canter or any other vehicle which also veered off the road. PW2 was an eye witness who was at the scene and he saw the respondent’s motor vehicle hit the deceased.

112. I find that in the circumstances of this case, there is evidence that it was the Respondent’s motor vehicle which was to blame for the accident.

113. I find that the issue of liability was decided against the weight of evidence adduced.

114. I set aside the dismissal of the suit on liability.

115. There is evidence that the Respondent veered off the road and hit the deceased on the side of the road.

116. The deceased was lying down facing Nairobi direction and there is no evidence that he contributed to the accident in any way.

117. The Respondent owed other road users a duty of care, there is evidence that he was in breach of the duty of care and as a result he fatally injured the deceased who was lying down on the side of the road.

118. The respondent is held 100% liable for the accident.

119. On the issue of quantum of damages, I find that the trial court assessed the same as follows:-i.General damages for pain and suffering Kshs. 100,000/=ii.Loss of expectation of life Kshs. 200,000/=iii.Loss of dependency Kshs. 2,100,000/=iv.Special damages Kshs. 14,750/=Total Kshs. 2,414,750/=

120. I set aside the order dismissing the suit and I substitute it with a finding that the respondent was 100% liable in negligence.

121. I enter Judgment in favour of the Appellant against the Respondent in the sum of Kshs. 2,414,750/= together with costs of the suit and interest at court rates from the date of the judgment of the trial court on 23rd June 2023 until payment in full.

122. The Respondent also to pay the costs of the appeal.

DATED, SIGNED AND DELIVERED THIS 12TH DAY OF MARCH 2025 IN OPEN COURT AT VOI.ASENATH ONGERIJUDGEIn the presence of:-Court Assistants: Maina/Millicent