[2024] KEHC 8529 (KLR)

Kamau & 4 others v Kamau & 3 others (Civil Appeal E107 of 2017) [2024] KEHC 8529 (KLR) (Civ) (8 July 2024) (Judgment)

Neutral citation: [2024] KEHC 8529 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E107 of 2017

DKN Magare, J

July 8, 2024

Between

Mwenda Zakaria Kamau

1st Appellant

Ngendo Engineers Limited

2nd Appellant

Dalmar Express Limited

3rd Appellant

Mbeta Hamisi Hatiba

4th Appellant

Jihan Freighters Limited

5th Appellant

and

Daniel Muia Kamau

1st Respondent

Veronicah Ndulu Kieti

2nd Respondent

Justina Kanini

3rd Respondent

Samuel Nyamasio Muli

4th Respondent

Judgment

1. This is an Appeal from the Judgment and Decree of Hon. D.O. Mbeja, Senior Resident Magistrate dated 15/2/2017 arising from Milimani CMCC No. 3737 of 2012. The Appeal is only on liability.

2. The Appellant pleaded that the trial court erred and misapprehended evidence in arriving at the finding on liability where he apportioned 100% in favour of the Plaintiff jointly and severally as against the Defendants.

3. The plaint dated 22/6/2012 and amended on 30/8/2012 claimed damages for an accident that occurred on 14/6/2011 involving motor vehicle registration number KAN 429H and Motor vehicle registration number KBN 017A. The 1st and 4th Defendants were the drivers of motor vehicle registration number KAN 429H and motor vehicle registration number KBN 017A respectively and the 2nd and 3rd and 5th Defendants were respectively sued as owners under vicarious liability.

4. It was pleaded that the Plaintiff was a passenger in motor vehicle registration No. KAN 429H along Enterprise Road when the 1st Defendant and the 4th Defendant respectively drove motor vehicle registration No. KAN 429H and motor vehicle registration number KBN 017A so negligently causing the two motor vehicles to collide causing the Plaintiff severe personal injuries.

5. The Plaintiff set forth particulars of negligence for the 1st and 4th Defendants inter alia as follows:a.Driving without due care and attentionb.Causing the accidentc.Failing to maintain a proper look outd.Failing to have due regard to the passengerse.Driving at excessive speedf.Failing to apply brakesg.Failing to stoph.Failing to observe traffic rulesi.Driving a defective motor vehicle

6. The 1st and 4th defendants, now appellants challenged these proceedings. They entered appearance and filed Defence on 20/7/2012 denying liability. The 2nd, 3rd and 5th defendants on the other hand did not enter appearance and as such default judgement was entered against them.

7. On 20/11/2015, the Plaintiff applied for consolidation of the CMCC No. 3737/2012 with CMCC No. 3738/2012, CMCC No. 3732/2012 and CMCC No. 3736 of 2012 and consolidation was allowed on 18/12/2015.

8. The trial court heard the parties and proceeded to render judgement on 15/2/2017. In the Judgement, the court found liability at 100% against the Defendants. I will not venture into the findings on quantum as they are not in issue in this Appeal.

9. Aggrieved by the finding of the trial court, the Appellants lodged a Memorandum of Appeal hence this Appeal.

Evidence 10. The Plaintiffs called PW1, Dr. Cyprian Okere, medical doctor. He confirmed the injuries suffered by the Plaintiffs in all the consolidated cases based on their respective medical reports produced in evidence.

11. PW2, was PC Joyce Obiri. She testified that the Plaintiffs were issued withy P3 forms and Police Abstracts and that no one was taken to court about the accident. On cross examination, it was her stated case that motor vehicle registration No. KAN 429H was to blame for the accident.

12. PW3 was Daniel Muia Makau the Plaintiff. He relied on his witness statement and bundle of documents dated 30/8/2012 which he produced in evidence.

13. It was his case that he was a passenger in motor vehicle registration No. KAN 429H which was coming from Mombasa Road to join enterprise road and that motor vehicle registration No. KBN 017A was coming from Likoni Road to join Enterprise Road. On cross examination, he testified that he saw both motor vehicle registration No. KAN 429H and motor vehicle registration No. KBN 017A were approaching the roundabout very fast and did not slow.

14. PW4, was Veronicah Nduku Kieti. She relied on her witness statement and bundle of documents dated 30/8/2012 and testified that she saw a vehicle ahead of them at the junction and suddenly the accident occurred. That KBN 017A was a canter. That KBN 017A was hit on the side of the conductor. On cross examination, it was her case that 429H went to knock motor vehicle registration No. KBN 017A. That KBN had already joined the roundabout.

15. PW5 was Justina Kanini Mutiso. She relied on her witness statement and bundle of documents dated 30/8/2012. It was her case that KAN 429H was overspeeding and did not give way. It rammed into KBN 017A on the conductor’s side. On cross examination, she reiterated her testimony that the driver of KAN 429H did not give way to KBN 017A.

16. PW6 was Samuel Nyamasio Muli. He relied on his witness statement and bundle of documents dated 30/8/2012. It was his testimony that KBN 017A had already joined the round about. That the driver of KAN 429H who was driving very fast hit KBN 017A on the left side, the side of the conductor. On cross-examination he also reiterated his testimony in chief that KAN 429H ought to have given way to KBN 017A which had already entered the junction.

17. On their part, the Appellants did not call any witness.

Submissions 18. The Appellants filed submissions dated 15/3/2024. It was submitted that the lower court erred in its finding on liability at 100% as against all defendants when the appellants were not to blame for the accident as per the evidence produced in court.

19. They relied on the case of Ahmed Mohammed Noor v Abdi Aziz Osman (2019) eKLR to submit that the evidentiary burden keeps shifting and the learned magistrate was wrong in finding the appellants equally liable at 100%. On this, it was further submitted that lower court was not correct in its reasoning that the appellants did not call the driver of KBN 017A to testify and rebut the evidence of the plaintiffs.

20. On their part, the Respondents on the other hand submitted that the trial court’s finding on liability should not be interfered with except in exceptional circumstances.

21. They submitted that the lower court correctly found the legal burden to proof the defendants 100% liable for the accident.

Analysis 22. The court has considered the record of appeal and the submissions and authorities relied on by the parties in support and opposition to their respective cases.

23. The issue is whether the learned magistrate erred in his finding on liability.

24. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

25. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

26. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."

Liability 27. The Appellants urged me to find that the trial court erred in finding all the defendants 100% liable for the accident because it was motor vehicle registration No. KAN 429H that was to wholly blame and not KBN 017A. They propose that the Judgement of the trial court on liability be set aside and the case against the Appellants be dismissed.

28. On the other hand, the Respondents’ case is that the judgement of the lower court was correct on liability and should not be disturbed.

29. My role is thus to reevaluate the evidence and arrive at my independent finding on liability. In Ephantus Mwangi and Another vs. Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 the Court of Appeal held that:“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

30. I have perused the record of appeal filed in court and the written submissions and authorities cited in support and opposition to the Appeal. What is clear is that the Plaintiffs had to lead evidence that would rule out contributory negligence. The Appellants’ appeal is that the Appellants were not negligent at all. These are matters of evidence and the Plaintiffs had the legal burden of proof that motor vehicle registration No. KAN 429H and both motor vehicle registration Nos. KAN 429H and KBN 017AH were fully to blame. On this subject, 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 dependent on the existence of facts which he asserts must prove that those facts exist.

31. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”.

32. Whereas the lower court found that the appellants having not called the driver of motor vehicle registration No. KBN 017A had not rebutted the evidence of the Plaintiffs on liability, it is also the case that the burden lies on the person who would fail if no evidence at all was produced in relation to either sides. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

33. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- 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.”

34. Similarly, Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;“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 even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation 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…..”

35. Furthermore in 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 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 loose because the requisite standard will not have been attained.”

36. In my reevaluation, I note that the police officer who testified on the occurrence of the accident only blamed motor vehicle registration KAN 429H for the accident. The testimonies of all the Plaintiffs were also categorical that Motor vehicle Registration KAN 0429H did not give way to KBN 017A. That KBN 017A had already entered the roundabout when motor vehicle registration KAN 429H hit motor vehicle registration KBN 017A on the left side of the conductor. However, in the case of Netah Njoki Kamau & another v Eliud Mburu Mwaniki [2021] eKLR, Justice Mary Kasango, stated as doth: -“18. The appellants faulted the trial court for dismissing their claim in the light of the respondent not calling any evidence. What the appellant did in laying the failure of their case on the trial court was that they failed to appreciate that they bore the burden of proof to prove the allegations in their pleadings. The Court of Appeal in the case Charterhouse Bank Limited (Under Statutory Management Vs. Frank N. Kamau (2016) Eklr had occasion to consider the burden of proof of the plaintiff where the defendant failed to adduce evidence. The court stated in that case:-

“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgment merely because the defendant has not testified.”

37. The court notes that accident also occurred at a roundabout and the learned magistrate opined that while approaching the roundabout, both drivers of the two impugned motor vehicles were duty bound to slow down and stop where necessary. It was clear that the reason of the collision was that both or either of the two motor vehicles failed to slow down or stop. This was a matter of evidence that none of the defendants deemed it fit to present to the court as their proper care. In Hay or Bourhill V Young [1942] 2 ALL ER 396 the Court had this to say on proper care that; -“Proper care connotes avoidance of excessive speed, keeping a good look-out, observing traffic rules and signals and so on. Then to whom is the duty owed? Again, I quote and accept the words of Lord Jamieson:“……to persons so placed that they may reasonably be expected to be injured by the omission to take such care”“The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others and the duty is owed to those whom injury may reasonably and probably be anticipated if the duty is not observed.”

38. Therefore, the Appellants did not call any witnesses, their Defence was mere statement. The plaintiff on the other hand adduced credible evidence that the accident occurred at a roundabout when KAN 429H collided with KBN 017A. In Embu Road Services V Riimi (1968) EA22 and Mzuri Muhhidin V Nazzar Bin Seif (1961) EA 201 the court held inter alia; -“Where the circumstances of the accident give rise to the inference of negligence, the defendant, in order to escape liability, has to show that there was a probable cause of the accident, which does not create negligence or that the explanation for the accident was consistent only with absence of negligence. The essential point in this case, therefore is a question of fact, that is whether the explanation given by the Respondent shows that the probable cause of the accident was not due to his negligence or that it was consistent only with absence of negligence”. See also Odunga’s Digest on Civil case law and Procedure 3rd Edition Vol 7 page 5789 at paragraph (D).

39. I am also fortified by the reasoning of the court in Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, where it was held that:“Negligence is not actionable per se but is only actionable where it has caused damage and in that regard the primary task of the court in a trial of a negligence suit is to consider whether the act or acts of negligence caused the damage was caused by the negligent acts of different persons to assess the degree of their respective responsibility and blame-worthiness, and apportion liability between or among them accordingly... There is no act or omission that has static blameworthiness and therefore each case must be assessed on its own circumstances and the apportionment ought to be a result of comparing the negligent conduct of the tortfeasor, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct.”

40. Further, in Masembe vs. Sugar Corporation (supra) the court found that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his court at any time to avoid anything he sees after he has seen it.... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object ..... Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently.... There may be occasions when criminal or traffic offences are committed without giving rise to civil liability.”

41. The same reasoning was in Tart vs. Chitty and Co. (1931) ALL ER Pages 828 – 829 where Rowlat, J had this to say:“It seems to me that if a man drives a motor car along the road he is bound to anticipate that there may be in things and people and animals in the way at any moment and he is bound to go not faster than will permit his stopping or deflecting his course at any time to avoid any thing he sees after he has seen it.”

42. Therefore, having considered the pleadings and evidence in the lower court, I am unable to fault the learned magistrate that both motor vehicles were to blame 100%. The evidence produced by the Plaintiffs in the lower court were clear and uncontroverted that motor vehicle registration KAN 429H collided with motor vehicle registration KBN 017A. The finding on liability was thus correct. In Khambi & Another vs. 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

43. I also find that the only person who would have challenged the Plaintiffs’ case on the manner in which the accident had occurred was the driver of KBN 017A but who the reason known to the Appellants was not called to testify. As was held in Patrick Wambua Matia v Nathan Kivava & another [2021] eKLR50. Based on the evidence on record, I find that there was a misdirection on the part of the learned trial magistrate as regards the findings on liability. In my view, based on the evidence adduced, the Respondents were wholly liable for the accident and ought to have been found 100% liable since the only witness who could have positively challenged the Appellant’s evidence on the manner in which the accident occurred, the turn-boy, was, for some reason, not called to testify by the defence.

44. Therefore, in the absence of evidence by the Appellants, it was probable that both the driver of motor vehicle registration KBN 017A and motor vehicle registration KAN 429H failed to exercise due care. As was held in Mukai Mwanza V Joseph Matheka & 4 Others [1982] eKLR:It was probable that the driver of the bus had taken no action at all to avoid the collision and he must have seen the other vehicle long enough to rule out his being put in a situation of having to make a decision in the agony of the moment.

45. Therefore, in the circumstances of this case, the Appeal is not merited.

Determination 46. In the upshot, I make the following orders: -a.The Appeal is dismissed.b.The Respondents shall have costs of the Appeal which I assess at Kshs. 105,000/-.

DELIVERED, DATED AND SIGNED AT NYERI ON THIS 8TH DAY OF JULY, 2024. Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Mr. Mwangi for the AppellantsNo appearance for the RespondentsCourt Assistant – Jedidah