[2023] KEHC 25380 (KLR)

Karanja & another (Suing as the Administrators of the Estate of Eliud Gakera Karanja - Deceased) v Gikomba Upendo Fish Traders Limited (Civil Appeal E300 of 2022) [2023] KEHC 25380 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25380 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E300 of 2022

DAS Majanja, J

November 17, 2023

Between

Irene Wairimu Karanja

1st Appellant

Regina Wanjiku Karanja

2nd Appellant

Suing as the Administrators of the Estate of Eliud Gakera Karanja - Deceased

and

Gikomba Upendo Fish Traders Limited

Respondent

(Being an appeal from the Judgment and Decree of Hon. G. Sogomo, PM dated 14th April 2022 at the Nairobi Magistrates Court, Milimani in Civil Case No. E9397 of 2021)

Judgment

1. This is an appeal against the judgment of the Subordinate Court dismissing the Appellants’ suit against Respondent seeking damages for the Deceased’s death following a road traffic accident that took place on 20. 12. 2019. The trial court held that the Appellants had failed to prove their case on the balance of probabilities.

2. According to the Plaint dated 30. 06. 2023, the Deceased was travelling in the Respondent’s motor vehicle registration number KCH 136B on the material day when, as a result of the Respondent’s driver’s negligence, the Deceased lost his life in an accident that took place along Outer Ring Road, Nairobi. As a result, the Appellants claims damages under the Law Reform Act (Chapter 26 of the Laws of Kenya) and the Fatal Accidents Act (Chapter 32 of the Laws of Kenya) for pain and suffering, loss of expectation of life, loss of dependency and funeral and other expenses incurred.

3. The Respondent denied the Appellants’ claim and urged the court to dismiss the case.

4. At the hearing of the suit, the Deceased’s younger sister, Irene Wairimu Karanja (PW 1) and PC Faridah Masinde (PW 2) testified on the Appellants’ behalf. The Respondent did not call any witnesses.

5. In the Judgment, the trial magistrate held that the Appellants had failed to prove their case on the balance of probabilities. The court held that, “No eye witness was ever lined up by the Plaintiffs to ventilate as to how the subject accident occurred thus leaving the issue to conjecture and hearsay.” As a result, the trial court dismissed the claim leading to this appeal.

6. The Appellants’ appeal against the Judgment is based on the grounds set out in the Memorandum of Appeal dated 09. 05. 2022. Although they raise seven grounds of appeal, the thrust of the appeal is whether the trial court erred in law and in fact in dismissing the Appellants’ case on the ground that they failed to prove their case on the balance of probabilities. Both sides have filed written submissions in support of their respective positions.

7. Whether the Appellants proved their case or otherwise is a question of fact hence this court, as the first appellate court, has the duty to examine all the evidence presented before the Subordinate Court and come to an independent determination whether the trial court’s judgment should be upheld always making an allowance for the fact that it neither saw nor heard the witnesses testify (Selle v Associated Motor Boat Co. Ltd (1968) EA 123).

8. In their submissions, the Appellants contend that the testimony of PW 2 was sufficient and admissible to draw an inference of liability. PW 2 recalled that after the accident took place on the material date, Corporal Mwamba visited the accident scene, took details of the accident and booked the report in the Occurrence Book. That Corporal Oluoch conducted investigations and in his report noted the deceased was a passenger in the Respondent’s motor vehicle and when he was alighting he was ran over by another vehicle and rushed to hospital where he was pronounced dead. PW 2 produced the police abstract. When cross-examined, PW 2 admitted that she did not visit the scene of the accident but according to the report, the driver was released on cash bail and the matter taken to the Director of Public Prosecutions for advice.

9. I agree with the Appellant that not every case must be dismissed because the plaintiff did not call an eye witness to the accident. The court must consider all the evidence and make an inference from which liability may be established. In Abbay Abubakar Haji v Marain Agencies Company & Another [1984] 4 KCA 53 where the Court of Appeal observed that, “There can be no doubt that it is the clear duty of a court to arrive at a finding on the facts, however difficult the circumstances may be, if that is at all possible. The court cannot, as Denning LJ said, wash its hands of the case and shrink from arriving at a conclusion simply because the evidence is deficient in some respects.” (see also Susan Kanini Mwangangi & Another v Patrick Mbithi Kavita [2019]eKLR and EWO suing as the next friend of minor COW v Chairman Board of Governos Agoro Yombe Secondary School [2018] eKLR).

10. The common thread in the authorities cited by the Appellants is that there must be admissible evidence demonstrating the facts upon which the court may infer negligence. In this case the only testimony was that of PW 2, a police officer, who did not visit the scene of the accident and testified based on a report which she did not produce and only produced a police abstract. I am constrained to hold that PW 2’s testimony, in so far as the circumstance of the accident were involved was inadmissible hearsay.

11. If I may elaborate, section 62 of the Evidence Act (Chapter 80 of the Laws of Kenya) provides that all facts, except the contents of documents, may be proved by oral evidence. Section 62 goes on provide that oral evidence must be direct evidence which means:a.with reference to a fact which could be seen, the evidence of a witness who says he saw it;b.with reference to a fact which could be heard, the evidence of a witness of a witness who say he heard it;c.with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner;d.with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case may be, hold it on those grounds:

12. Section 62 of the Evidence Act encapsulates the rule against hearsay which in this case applies to the testimony of PW 2. PW 2 did not witness the accident and could not testify as to what transpired based on reports he received from persons who were not called as witnesses. The only document produced was the police abstract which adds nothing to the Appellants’ case. As the court stated in Florence Mutheu Musembi & Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR, “A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence. The Police Abstract Report which was produced before the trial court did not contain any other information apart from the date, of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the vehicle, the victim and the name of the investigating officer. There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the Respondents.”

13. The Appellant relies on the doctrine of res ipsa liquitor to make the case that the Respondent was liable for the accident. In Nandwa v Kenya Kazi Limited [1988] eKLR, Court of Appeal (Gachuhi JA) cited, with approval, a portion Barkway v South Wales Transport Company Limited [1956] 1 ALLER 392, 393 B on the nature and application of the doctrine of res ipsa loquitur as follows:The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was itself evidence of negligence, depended on the absence of explanation of an accident, but, although it was the duty of the Respondents to give an adequate explanation, if the facts were sufficiently known, the question reached would be one where facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be confirmed.

14. As the Court of Appeal explained, once the plaintiff establishes a prima facie case, the defendant must discharge the burden by showing that it was not negligent or that the accident was fortuitous and occurred without any negligence on the it part. A prima facie case can only be established by admissible facts. As I have stated, there are no facts which could call upon the Respondent to respond. In the absence of basic facts, the doctrine of res ipsa loquitur does not apply.

15. From the totality of the evidence on record, the Appellants failed to prove that the accident occurred as a result of the Respondent’s negligence.

16. The appeal is dismissed. The Appellants shall pay costs of the appeal assessed at Kshs. 40,000. 00.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2023. D. S. MAJANJAJUDGEMr Kimanzi instructed by Elmer and Company Advocates for the Appellant.instructed by Kimondo Gachoka and Company Advocates for the Respondent.