[2024] KEHC 15929 (KLR)

Gitundu v Mutua (Civil Appeal E874 of 2023) [2024] KEHC 15929 (KLR) (Civ) (18 December 2024) (Judgment)

Neutral citation: [2024] KEHC 15929 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E874 of 2023

H Namisi, J

December 18, 2024

Between

John Kihiko Gitundu

Appellant

and

Anna Munyiva Mutua

Respondent

(Being an Appeal from Judgement of Hon. T. Mariega, Resident Magistrate in Milimani CMCC No. E 381 of 2021 delivered on 31st July 2023)

Judgment

1. This appeal arises from a suit filed by the Respondent against the Appellant for:i.The sum of Kshs 144,820/=;ii.Interest on (i) above at court rates from the date of filing the suit till payment in full;iii.Costs of the suitiv.Interest on (iii) above at court ratesv.Any other and/or further relief that this court may deem fit to grant

2. The particulars of the suit are that on 30 July 2019, the Respondent’s motor vehicle registration number KCS 176X was involved in an accident with the Appellant’s motor vehicle registration number KCJ 689H along Mombasa Road, Nairobi County. As a result of the accident, the Respondent’s motor vehicle was extensively damaged this occasioning the Respondent substantial loss amounting to Kshs 144,820/=.

3. The Appellant entered appearance and filed a Statement of Defence dated 5 April 2022, denying the allegations by the Respondent.

4. At the hearing, the Respondent called three witnesses. PW1, PC Joseph Wachira was a Police Office stationed at Industrial Area Police Station. He produced a copy of Police Abstract confirming the incident and in which the Appellant’s motor vehicle was blamed for the accident. PW2 and PW3 were the internal Assessor and Recoveries Officer from Kenya Alliance Insurance Company Ltd, respectively.

5. The Appellant testified, blaming the Respondent’s motor vehicle for causing the accident.

6. Parties filed their respective submissions. In its judgement, the trial court identified three issues for determination:i.Whether the Defendant and/or plaintiff is liable for material accident/ who was to blame for the accident?ii.Whether the doctrine of subrogation applies?iii.Who should bear the costs of the suit?

7. The trial court entered judgment in favour of the Respondent as follows:a.Liability - 100%b.Special Damages - Kshs 144,820/=c.Costs of the suit from date of judgement until payment in fulld.Interest on special damages from the date of filing the suit until payment in full

8. Aggrieved by the said judgement, the Appellant lodged an appeal on the following grounds:i.That the learned trial Magistrate erred in law and in fact in finding that the Defendant was 100% liable for the accident;ii.That the learned trial Magistrate erred in law and in fact in finding that the Plaintiff had discharged the burden of proof even though they did not call the driver who was a material witness to the case;iii.That the learned trial Magistrate erred in law and in fact in dismissing the account of the Appellant on the circumstances of the accident which remained unchallenged without the account of the Plaintiff’s driver to the contrary;iv.That the learned trial Magistrate erred in law by failing to observe the presumption in the law of evidence that a party who has in his possession evidence which he fails to call, that evidence is presumed to have been adverse to him;v.That the learned trial Magistrate erred in law and in fact in solely relying on the Police Abstract which was issued a day after the accident upon the report by the Plaintiff and not upon the conclusion of police investigations.

9. Directions were given that the appeal be canvassed by way of written submissions. By the time of writing this judgement, neither party had filed their submissions.

10. I have considered the Record of Appeal herein. The issue for determination herein is liability.

Analysis and Determination 11. This being the first appeal, it is this court’s duty under Section 78 of the Civil Procedure Act, Cap 21 of the Laws of Kenya, to re-evaluate the evidence tendered before the trial court and come to its own independent conclusion, taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd (1968) EA 123 where Sir Clement De Lestang (V.P) stated that,“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally’’.

12. With respect to liability, the same is determined on the basis of evidence and the facts of the case, and the applicable law. The burden of proof on a balance of probabilities, lies on he who alleges. In this instance, the burden of proof lay on the Respondent.

13. Halsbury's Laws of England, 4th Ed at Para 662 (page 476) states thus:“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which the breach of duty a causal connection must be established."

14. Section 107 (1) of the Evidence Act provides that 1. Whoever desires any Court to give judgment as to any legal right depending on the existence of facts which he asserts must prove that those facts exist;

2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

15. By virtue of sections 107, 108 and 109 of the Evidence Act, the trial court was expected to test the evidence presented by the Respondent and whether it discharged the burden of proof on a balance of probabilities. In arriving at its decision on liability, the trial court noted thus:“(39).... It is clear from the evidence of DW1 and PW1 that the Plaintiff had stopped at a pedestrian crossing as is required to allow the pedestrians to cross. PW1 stated that DW1 did in fact hit the Plaintiff at the rear when the vehicle had stopped at a pedestrian crossing and produced the police abstract as evidence that the Defendant was to be blamed for the accident. The Defendant did not object to the Police Abstract being produced in court by the Plaintiff. In the absence of any documentary evidence to the contrary, I find that the Plaintiff’s case remains unrebutted and/or uncontroverted....(40)I also find that the fact that DW1 did not go to the police station or record a statement does not relieve him from liability having confirmed that he hit the Plaintiff vehicle from the rear. There was no evidence on the contrary provided by the Defendant to indicate that the account of PW1 was false and that it was the Plaintiff who was to blame for the accident.”

16. In line with the rules of evidence, the Respondent was required to adduce sufficient evidence to prove her claim. The Respondent’s case rested on three witnesses, none of whom was at the scene. The Police Officer testified that a report was received at the Police Station a day after the accident occurred. His evidence on how the accident occurred was not direct evidence but secondary evidence. He did not visit the scene neither did he have a sketch plan. He was not aware of any investigation file. In fact, the copy of Police Abstract that was produced was one that he had obtained from the Advocate representing the Respondent. The other two witnesses were from the Insurance company and only learnt of the accident once the same had been reported to the insurer. None of the witnesses could give an account of how the accident occurred, despite the importance of eye witness testimony.

17. In the case of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR), the Court opined thus:“Direct Evidence” is evidence that establishes a particular fact without the need to make an inference in order to connect the evidence to the fact. It supports the truth of an assertion (in criminal law, an assertion of guilt or of innocence) directly, i.e., without the need for an intervening inference. It directly proves or disproves the fact. So Direct Evidence is real, tangible, or clear evidence of a fact, happening, or thing that requires no thinking or consideration to prove its existence. It does not require any type of reasoning or inference to arrive at the conclusion.The evidence tendered by the Respondent in the lower court is not direct evidence. It has no probative value and in absence of further evidence connecting it with what happened at the scene, the court could not properly draw an inference or make a reasonable conclusion as to how the accident occurred. This being the quality of the evidence tendered, there was no basis at all upon which the Magistrate court reasonably make a finding that liability had been established on 100% basis as against the appellant. In fact, the Magistrate other than saying the appellant never adduced evidence, he never explained whether the evidence before him discharged the evidential burden of prove. Had the trial Magistrate appreciated that the initial evidential burden rests upon the Plaintiff, and had he carefully applied his mind to the law, he would have held that there was nothing for the appellant to rebut since the Respondent had not discharged the legal burden of prove. However, he was blinded by the mere fact that the appellant never called evidence and overlooked binding decisions cited by the appellant before him. At that point it was irrelevant that the appellant never adduced evidence at all because there was nothing to rebut. On this ground alone, I allow this appeal in its entirety.”

18. Having determined that the Respondent failed to discharge her burden of proving liability as against the Appellant, the next question would be whether or not this Court ought to interfere with the determination by the lower court. In analysing this, the Court is guided by the case of Khambi and Another v Mahithi and Another [1968] EA 70, where 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.”

19. In this instance, it is clear that the trial court’s determination was based on no evidence and ought to be set aside. Thus in determining liability, this court is guided by the opinion of the Court of Appeal in Farah v Lento Agencies [2006] 1 KLR 123 where it expressed itself as follows:“In our view, it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. Everyday, proof of collision is held to be sufficient to call the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the Court would unhesitantly hold that both are to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them… The trial court...had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”

20. In view of the foregoing, the inevitable conclusion is that this appeal is merited and, therefore, partly succeeds. I allow it and substitute the judgement of the trial court on liability and apportion liability between the parties in the ratio 50:50. Therefore, judgement is entered in favour of the Plaintiff as follows:i.Special Damages - Kshs 144,820/= (less 50%)Total - Kshs 72,410ii.Costs of the suitiii.Interest on special damages from the date of filing the suit until payment in full

21. Each party shall bear their own costs of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 18 DAY OF DECEMBER 2024. HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:N/A ........... for the AppellantNgugi................ for the Respondent