[2017] KEHC 7457 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NUMBER 39 OF 2014

JACKSON MUCHIRI NGETHA

HANNAH WANJIRU MWANGI

(Suing as legal representatives of

The estate of DAVID KAROKI MUCHIRI(deceased)......................APPELLANT

VERSUS

HARRISON KANGERE NG'ANG'A.........................................1ST RESPONDENT

ISAAC WAINAINA NG'ANG'A...............................................2ND RESPONDENT

(An appeal from the Judgment of Hon. S. Mungai Chief Magistrate

In Nakuru CMCC No.75 of 2011 delivered on 5th March, 2014)

JUDGMENT

Background

1. On the 6th September 2009, One David Karoki Muchiri, deceased then a cyclist was knocked down and killed by motor vehicle Registration No. KBD 017T that was being driven by the 2nd Respondent and owned by the 1st Respondent and a passenger therein along Nyahururu – Ol Kalau road at about 7. 30p.m. The Appellants being the legal representatives of the deceased estate appealed against the trial courts judgment on liability that it was the deceased who was the sole cause of the accident that claimed his life by riding negligently at night and on the wrong side of the road, and attempting to cross the road in the face of the oncoming suit motor vehicle and thus the appellants failed to discharge the onus of proving liability on the part of the respondents to the required standards.

2. The grounds of appeal as stated are on liability and in summary, that the learned trial magistrate failed to consider the evidence tendered by the appellants witnesses including the investigating officers evidence and report.

It is urged that the trial courts judgment be set aside and be substituted with a finding that the Respondents are jointly and severally liable and or contributed to the occurrence of the accident,and thus liable to pay damages found by the trial Magistrate.

3. This court being the first appellate court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and come up with its independent findings and conclusion, taking into account that it neither saw nor heard the witnesses testify. The court is however not bound to follow the trial courts findings of fact if it appears either that the trial Magistrate clearly failed to take into account the particular circumstances or probabilities and materially failed to evaluate the evidence or if the impression based on the demeanour of witness is inconsistent with the evidence in the case generally. See Selle & Another -vs- Associated Motor Boat Co. ltd & Another Ea 123 Page 126 and Mwanasokoni -vs- Kenya Bus Services Ltd and Others (1982-88) I KAR 278.

4. I have considered the pleadings filed by the respective parties and evidence adduced before the trial court. It is my duty therefore to reconsider and evaluate the said evidence vis-a-viz the appellants grounds of appeal and the judgment of the trial court.

5. The Appellants Case

Is based on the Amended plaint dated 14th December 2010 and filed on even date. PW1 is the wife of the deceased. She did not witness the accident.

PW2 was PC Hussein Mohammed a police officer from Nyahururu police station. He was not the investigating officer. He relied on the covering report prepared by two other officers who visited the scene of accident, and found the deceased's body on the right side of the road as one faces Ol Kalau. It was recorded that the motor vehicle was travelling to Nyahururu and the deceased was cycling his bicycle on the right side as one faces Ol Kalau. Damages on the vehicle were at its rear and left side. Upon investigations, the officers concluded that the evidence was tampered with.

Upon cross examination the police officer testified that the collision was on the road but could not place it anywhere (point of impact) as the scene was not constructed, and that the motor vehicle was on its correct lane of the road.

6. The Respondent's case

Was urged by both Respondents.DW1 Harrison Kamengere Ng'ang'a was the owner and passenger in the accident vehicle registration No. KBD 017T.

His testimony was that as they headed to Nyahururu from Ol Kalau there was a cyclist infront cycling on the left side of the road, about 10 metres form the vehicle, that he then rode onto the road and proceeded to the middle of the road where he was knocked down, that the vehicle swerved and stopped, that the cyclist was thrown to the right side and the bicycle to the left and both rested off the road, on the right side.

He testified that the vehicle was at a high speed of 80 kilometres per hour, and that the driver was not charged with any traffic offence.

7. Upon cross examination, this witness stated that the point of impact was at the middle of the road and the windscreen fell on the cyclist and the bonnet was slightly damaged. Shown the pictures of the vehicle, he confirmed that damage was on the left side and a big dent on top of the vehicle where the body landed. He further testified that his driver tried to avoid hitting the cyclist but no skid marks were reported in the police report.

8. The driver of the accident motor vehicle, Isaac Wainaina Ng'ang'a testified as DW2. His evidence was that it was dark and the vehicle lights were on when he saw a cyclist coming from the front on the left side approaching them then suddenly he swerved into the main road on his lane intending to cross the road, and that the vehicle and the cyclist met at the middle of the road and the cyclist was knocked down. On cross examination, DW2, stated that the cyclist landed on the right side off the road while the bicycle landed on the opposite side.

He denied having knocked the cyclist from behind and not over speeding and that he did not loose control of the vehicle.

It was his testimony that he saw the cyclist about 30-40 metres away and that the cyclist tried to cross the road, that he swerved but hit the vehicle at the middle of the road. He confirmed that the damage on the vehicle was on the left side while the bicycles damage was on the front wheel.

9. In his judgment the trial Magistrate while commenting on the police officers testimony stated that the officer did not expound on who or how the scene of accident was tampered with and that the officers recommended an inquest, which was never conducted.

10. The trial Magistrate findings were that the appellants failed to discharge their burden of proof, that it was the respondents negligence that caused the death of the deceased. He stated that failure to call the investigating officer to testify, the respondents evidence remained uncontroverted that the deceased rode negligently at night and on the wrong side of the road in the face of the oncoming vehicle and must therefore bear the full blame.

11. I have considered the appellants submissions. The court is urged to consider circumstances that prevailed before and after the accident and indicated in the police covering report and observations thereon and find that the deceased was knocked from behind and that the 2nd Respondent drove negligently and therefore liable in negligence.

12. I have also considered the Respondents submissions. It is trite that he who alleges must prove – Evidence Act Sections 108 -109.

It is the duty of a party claiming, and particularly in claims involving negligence, to call evidence to prove the same. It is not enough to plead particulars of negligence, and leave them to the court.

In Timsales Ltd -vs-Harun Wafula Wamalwa, Nakuru HCA No. 95 of 1995, Learned Judge Musinga Jrendered that in our adversarial system of litigation, cases are tried and determined on the basis of pleadings, issues of facts and the law framed by the parties or the court, and that the burden of proof lies with the plaintiff and the degree of proof is on a balance of probabilities.

This court is duty bound to evaluate the evidence adduced before the trial court as the only basis of determining liability.

See Philip Chemwolo & Mumias Sugar Co. Ltd -vs- Augustine Kubende (1982-88).

13. The Appellants relied heavily on the covering report that was produced by PW2. It was not indicated why the investigating officers could not attend court to produce the same and possibly shed light on their report. I have looked at the report. No objection was raised of its production and admission. It therefore forms part of the record.

Of importance is the summary of events and report on the scene of the accident. It is stated that:

“----The bicycle had a dent on the rear wheel, a clear sign that suggests that it was hit from behind--- the vehicle had its front windsscreen shattered on left and a dent on the front roof showing that the victim was hit on the left front side of the vehicle--- there were no skid marks or tyre marks either on the road or off the road --- that while interviewing the driver it was established that the vehicle was not at the final resting point as it had been alleged that the driver reversed after the accident --- that in the absence of an independent witness at the scene it was not easy to blame the said driver however it was left for the defendant. I do comment further investigations.”

In their findings, the investigating officers made observations that

“----Despite the fact that the police officers moved to the scene immediately it was an uphill task for the officers to get the clear picture of the scene after the vehicle which was a major factor was removed from the last resting point leaving the officers with probabilities --- as the scene was tampered with.”

14. The court is not necessarily bound to agree with an instigators report on opinion but each case must be taken and considered individually. See Antony Musita & Another -vs- Purity Gatakaa & 2 Others HC No. 2 of 2009 Meru.The Court in its discretion may accept or reject the opinion/report for various reasons pertaining to each individual case and circumstances.

In the present appeal before me, I am inclined to adopt the investigation report for the reasons that no eye witnesses were found at the scene as it was at night.

15. The driver of the vehicle the 2nd Respondent in his evidence found page 181-182 of the Record of Appeal testified that after hitting the cyclist, he reversed the vehicle before alighting to check on the cyclist.

That in itself was tampering with the scene. There were no skid or break marks found on the scene yet it was his evidence that he applied breaks that they failed to work. The first Respondent in his evidence in chief testified that the

“Point of impact was on the middle of the road. The centre part of the windscreen bore the impact. It did not shatter. The windscreen felled(sic) the cyclist. The bonnet was slightly damaged.”

------the windscreen was damaged on top of the motor vehicle there was a big dent where the body landed.”

16. From the police officers observations above, it is not clear how the accident occurred and who between the driver and the cyclist was to blame for the accident. No sufficient evidence was adduced by either party to persuade the court to come to clear findings as how and by whom. I am persuaded to accept the investigating officers observations contained in the report that was made immediately after the accident. If indeed the scene was tampered with, and there being no eye witness save the Respondent would not have been possible for the officers to make a finding on who was to blame for the accident. This too is my finding after a carefully evaluation of all the evidence adduced before the trial court. The trial court relied solely on the respondents evidence and failed to consider the investigation report thus arrived at the finding that the appellants failed to prove negligence on the part of the respondents.

17. It is trite that whenever an accident involving two vehicles occur, one or both must be held liable. Rarely do both escape liability – See Baker -vs- Market Halborough Industrial Co-operative Society Ltd (1953) IWLR 1472whereLord Denning(as he then was) observed:

“Everyday proof of collusion is held to be sufficient to call on the defendants for an answer. Never do they both escape liability. One or the other is held to blame and sometimes both.”

InFarah -vs- Lento Agencies and Multiple Hauliers Ltd -vs- Ralids Muthomi Kimani (2015) e KLR the Court of Appeal held that where there is no concrete evidence to determine who is to blame between two drivers, both should be held liable equally or proportionately to the degree of contributory negligence as based on circumstances the court may find appropriate.

See also Lakha Mishi -vs- Ag (1971) EA 118.

18. Upon careful consideration of all the evidence as by law required I find that the driver of the motor vehicle, faced with the oncoming cyclist failed to take any evasive action or act to try and avoid the accident. This was obvious even in his own admission in evidence in chief and cross examination that he tried to break but that did not work as the brakes failed and that no break marks were found at the scene of the accident. The investigating officers too cast doubts on the version of evidence and statements from the respondents and police officers who visited the scene soon after the accident. I agree that the investigation report alone cannot be conclusive evidence as to who is to blame for the accident.

Evidence tendered by all parties ought to be taken and considered together for a court to arrive at well balanced findings on facts.

See David Kajoji M'mugaa -vs- Francis Muthomi (2012) e KLR.

19. It is not the rule that whenever no concrete evidence is presented on how or by whom an accident is caused in a collision, that both drivers must be held equally to blame. Evidence and circumstances leading to the collusion must be considered for fair distribution of contributory negligence to be arrived at.

20. This court having considered the evidence and circumstance of the collision, I am persuaded to allow the appeal, set aside the trial courts judgment that no liability was established by the appellants against them, and substitute the same by a finding that both the deceased and the second respondent contributed to the occurrence of the accident.

Consequently, I apportion contributory negligence at 50% against the second respondent and 50% against the cyclist. The first respondent is by dint of being the employer of the second respondent and his authorised driver, a fact not in dispute, is held vicariously liable for the negligence of his driver at 50%.

21. Quantum of damages as assessed and awarded by the trial court is not challenged. It is upheld.

22. The order on costs that commend itself to me is that each party shall bear its own costs of the appeal.

Dated, Signed and Delivered this Day 2nd of February 2017

J.N. MULWA

JUDGE