[2016] KEHC 2616 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL, COMMERCIAL AND ADMIRALITY DIVISION

CIVIL APPEAL NO. 8 OF 2015

(Appeal from the Judgment of Hon. J. Kituku, PM, dated 15th January, 2015, in Mombasa Chief Magistrate’s Court Civil Case No. 115 of 2014,)

KENNEDY NYANGOYA …………………………………………..APPELLANT

VERSUS

BASH HAULIERS ……………………………………….……..RESPONDENT

JUDGMENT

1. The appellant being dissatisfied with the Judgment in Mombasa PMCC No. 115 of 2014 delivered on 15th January, 2015 filed a memorandum of appeal on 5th February, 2015 raising thirteen (13) grounds of appeal as outlined below:-

(i) That the learned Magistrate erred in law in not appreciating that once a road has been gazetted as a one way (sic) or inaccessible to trucks and lorries, there is no requirement for prove (sic) of this fact, because it becomes part of the law. Everybody is presumed to know the law. Thus he totally fell into error;

(ii) That the learned Principal Magistrate erred in law by purporting to shift the burden of proof to the Appellant with a law passed and enforced by requiring the Appellant to prove it, which is wrong and not provided by law. Hence he fell into error;

(iii) That the learned Principal Magistrate erred in law in blatantly ignoring clear provisions of the law arriving at a wrong decision and was totally biased against the Appellant, he fell into error;

(iv) That the learned Principal Magistrate erred in law and fact by arriving at a decision that was not supported by the evidence in Court, and as such fell into error;

(v) That the learned Principal Magistrate erred in law and fact in his evaluation of the evidence, specifically on the evidence of the Respondent's Driver running away from the scene of the accident and the fact that he went to the police station two days after the accident to purport to report, hence he fell into error;

(vi) That the learned Principal Magistrate erred in law and fact in his evaluation of the evidence of police abstract and its value in civil cases, hence he fell into error;

(vii) That the learned Principal Magistrate erred in law in disregarding the evidence of the police officer and the Appellant, hence he fell into error or totally ignored their evidence;

(viii) That the learned Principal Magistrate erred in law and fact in his evaluation of value of the evidence of the police, investigating officer and statement recorded;

(ix) That the learned Principal Magistrate erred in law and fact by purporting to imply that a traffic conviction is a must, for a litigant in a civil case to succeed, hence he fell into error;

(x) That the learned Principal Magistrate erred in law and fact, by his action of trying to explain away the shortcoming of the Respondent Driver against the weight of evidence, hence he fell into error and also the shortcoming of the Defendants (sic) evidence in the trial Court;

(xi) That the Magistrate was totally wrong in his analysis and evaluation of the evidence and the conclusions he made, hence he totally fell into error;

(xii) That the learned Magistrate erred in fact and in law by his assumption that all civil cases have to be proved by eye witness (sic) which is not the case hence he fell into error; and

(xiii) That the learned Magistrate was totally wrong in his evaluation and conclusions on the documents produced by the Appellant, hence he fell into error or the requirements of stamp duty and its place in a civil dispute.

The record of appeal was filed on 31st July, 2015 and the appeal admitted for hearing on 16th February, 2016. The appeal proceeded by way of written submissions with Counsel being given an opportunity to highlight the same.

THE APPELLANT’S SUBMISSIONS

2. Mr. Ambwere, Learned Counsel for the Appellant argued ground Nos. 1, 2, 3, 4 together. He submitted that when a law is gazetted it is presumed that everyone knows that law and that the road along which the accident happened had been gazetted. He added that ignorance of the law is no defence. With regard to the said gazettement, trucks were not supposed to use Airport road where the accident happened. He submitted that the learned trial magistrate was wrong in requiring him to produce a copy of the Gazette Notice barring the driving of trucks along the said road.

3. It was submitted that the Driver of motor vehicle registration No. KBL 921V, Trailer ZD 949G, reported the accident two days after it occurred whereas it is trite law that once an accident happens it is incumbent on the Driver to report within 24 hours. Counsel pointed out that the learned trial magistrate explained that the foregoing was due to incidents of mob justice which are common. The Court was however informed that Changamwe Police station is 400 meters away from the scene of accident.

4. On ground No. 6, it was submitted for the Appellant that the learned magistrate dismissed the police abstract produced in Court and held that it was not evidence of liability. On this ground, Mr. Ambwere cited the case of Joseph Kiprono Kikwai vs Christopher Alando Osio, Civil Appeal No. 79 of 2011. He submitted that in the instant case the police had discharged their duty.

5. With regard to ground Nos. 7, 8, 9 and 11, it was submitted that the issue of the conviction of the Respondent's Driver should not have been taken into consideration by the learned trial magistrate as conviction in a traffic case is not a must for a civil suit to succeed. Mr. Ambwere submitted that the learned trial magistrate did not make a finding for the Appellant as he did not witness the accident, yet he did not state that he disbelieved the evidence of the Appellant. He added that the learned Magistrate was wrong in discarding the evidence of the Appellant and his witness without analyzing it. To support the foregoing assertion, he cited the case of George Ndiritu Kariamburi vs Joseph Kiprono Ropkoi & Another, Civil Appeal No. 345 of 2000. It was submitted that in the instant case, the police went to the scene and blamed the Respondent's Driver. Counsel urged this court to re-evaluate the evidence and make a finding that the learned magistrate was wrong in dismissing the case.

6. On ground No. 13 of the memorandum of appeal, it was submitted that the Appellant produced receipts for purchase of motor vehicle spare parts and repair costs yet the learned magistrate held that the Appellant produced invoices.

7. It was submitted that the learned trial magistrate failed to assess liability and award damages. Mr. Ambwere urged this Court to assess and re-evaluate the evidence adduced and allow the appeal.

RESPONDENT’S SUBMISSIONS

8. Ms Gichira, Learned Counsel for the Respondent opposed the appeal and urged the Court to uphold the findings of the trial court. On ground Nos. 1, 2, 3 and 4 of the memorandum of appeal, she referred the Court to section 68 of the Interpretation and General Provisions Act and section 85 of the Evidence Act to show that the Gazette Notice in issue should have been produced in Court to prove its existence. She submitted that what was availed to the Court were letters that were attached to the Appellant’s submissions and the same could not have been regarded as evidence.

9. With regard to ground Nos. 5 and 10, it was submitted that Respondent's Driver, DW1, explained the reason for reporting the accident after two days, in that there were matatu touts present at the scene of accident who would have beaten him up.

10. Ms. Gichira cited the case of Tayab vs Kinanu [1983] eKLR 114 where the Court of appeal held that it will not interfere with a Judge’s findings based on the assessment of the credibility and demeanour of witnesses who gave evidence before him unless it was wrong in principle. Counsel for the respondent also cited the case of Simon Taveta vs Mercy Mutitu Njeru [2004] eKLR and Jabane vs Olenja [1986] KLR 661 to buttress the above point.

11. On ground Nos. 6, 7, and 8, it was submitted that the learned trial magistrate was correct in disregarding the evidence of the Police officer, PW1, who was not the Investigating Officer as he knew nothing about the police abstract he produced. Ms Gichira cited the provisions of section 35(1), (2) and (3) of the Evidence Act on production of documents in submitting that PW1 had no personal knowledge of the police abstract he produced.

12. It was submitted that a conviction in a traffic case is mandatory for a case of liability to succeed but the Respondent's Driver was not charged with a traffic offence. The Investigating Officer did not attend court to explain why the said Driver was not charged. She submitted that the Appellant cannot solely rely on the police abstract and place liability on the Respondent. She cited the provisions of section 47(a) of the Evidence Act and the case of John Wainaina Kagwe vs Hussein Dairy Ltd [2013] eKLR to support that submission.

13. In respect to ground No. 12, it was submitted that direct evidence was not adduced by witnesses who saw the accident happen. The evidence of PW1 was thus hearsay as he was not at the accident scene when the accident occurred.

14. On ground No. 13, it was submitted that no stamp duty was affixed to the receipts produced in Court as per the requirements of section 86 and 19(1) of the Stamp Duty Act. Counsel for the Respondent observed that the document produced from Mount Kelvin Auto parts is not a receipt but an invoice, thus not admissible in evidence.

APPELLANT'S REJOINDER

15. Mr. Ambwere submitted that Counsel for the Respondent had not denied that the accident happened along a one way road and that the argument that the Gazette Notice he referred to was not produced, was without basis. He informed the court that he cross examined DW1 on his failure to report the accident on the day it occurred.

16. In regard to section 47(a) of the Evidence Act, it was submitted that the requirements in criminal proceedings are different from those in civil proceedings and a criminal conviction is not the same as a civil liability.

17. Mr. Ambwere wound up his submissions by stating that the plaintiff went to the scene of the accident after it had occurred, as such, his evidence was based on what he found at the scene. He submitted that the learned trial magistrate erred in referring to the receipts produced by the Appellant as invoices.

ANALYSIS OF THE EVIDENCE

18. The duty of the first appellate court is to re-evaluate and analyze the evidence adduced before the trial court and reach its own independent decision. This was enunciated in the case of Peters vs Sunday Post Ltd. (1958) EA 424, where Sir Kenneth O’connor, P, held thus at page 429:-

“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the Judge who tried the case, and who has had the advantage of seeing and hearing the witness. But the jurisdiction (to review the evidence) should be exercised with caution. It is not enough that the appellate Court might itself have come to a different conclusion. Accordingly, only when the finding of fact challenged on appeal is based on no evidence, or on a misapprehension of the evidence, or the Judge is shown demonstrably to have acted on wrong principles in reaching the finding he did, will this court interfere with it.”

This Court will analyze and re-evaluate the evidence adduced before the lower court and reach its own decision.

THE PLAINTIFF’S CASE

19. PW1, No. 66461 PC Pius Njimu stationed at Changamwe Police Station Traffic department produced a police abstract as exhibit 1, that was issued to PW2 at the said Police Station. It was in respect to an accident that occurred at noon on 7th July, 2013, along Airport, Mombasa involving motor vehicle registration No. KAW 635E, (hereinafter referred to as the ‘matatu’) and motor vehicle registration No. KBL 921V, Trailer ZD 949G (hereinafter referred to as the "truck"). PW1 testified that the Driver of the truck, Kariuki Mithamo, was to blame for failing to give way to the matatu.

20. PW2, Kennedy Nyagona, the owner of the matatu and the Appellant herein, was told by his Driver that his matatu was involved in an accident along Airport road. On reaching the scene, he saw that his matatu was involved in an accident with a truck that was being driven from Changamwe towards Airport road. He testified that there was a Gazette Notice prohibiting trucks from using that road. His vehicle had been hit on the front left side. He produced 3 photographs of the damaged vehicle as exhibits 3a-c1. The vehicle was towed to Changamwe Police Station. A report was made at the said Police Station and PW2 was issued with a police abstract, exhibit 1. He testified that his Driver was not charged with a traffic offence. He was issued with a vehicle inspection report dated 7th July, 2013, which he produced as exhibit 4. He produced exhibit 5(a), a receipt for towing charges for the sum of Kshs. Kshs.6,900/-.

21. PW2 further testified that he incurred Kshs.80,400/- to purchase spare parts when he took his motor vehicle for repairs and produced a receipt for the same as exhibit 5(c). He paid Kshs.65,000/- for panel beating as per exhibit 5(b). He also produced an insurance sticker from Invesco Insurance company for an insurance cover commencing on 10th June, 2013 to 9th July, 2013 as exhibit 6. He stated that he used to make Kshs.3,600/- per day as shown in his daily cash flow records. His vehicle was off the road for 30 days which led to a loss of Kshs 180,000/-, he produced an extract of his cash flow as exhibit 7. PW2 testified that he paid Kshs.500/- for a police abstract. PW2 further stated that his Advocate wrote a demand letter to the defendant. He blamed the Respondent's Driver for the accident.

22. On cross examination, PW2 informed the court that he did not witness the accident but was told of how it happened by his Driver. That his matatu was being driven from Magongo to Mombasa town and the truck was turning to a yard when the trailer hit his matatu. He added that the truck Driver was not charged.

THE DEFENDANT'S CASE

23. DW1, John Kariuki Mithamo (erroneously recorded as PW3 in the lower court record) adduced evidence that he was a Driver of the Defendant’s motor vehicle and that he had 5 years driving experience as at time of the accident on 7th July, 2013. He testified that he was driving the truck from Nairobi to Mombasa. He entered the main land port and as he was entering their yard at Kyaani, he turned the indicator on and when he had partly entered the said yard, the rear part of the trailer was hit. He added that his truck used the Kyaani road. He testified that the matatu sustained damage as a result of the accident. He stated that people confronted him and he drove into their yard. Police officers went to the yard but he was not charged with any traffic offence. He blamed the matatu Driver for hitting the trailer.

24. On cross examination, DW1 stated that matatu touts wanted to attack him as they stay idle in that area. He indicated that he used to follow that road from the port. He informed the court that he recorded a statement with the police after 2 days as he was shocked after the accident. He stated that the police abstract showed that he was to blame.

25. On re-examination, DW1 informed the court that their yard is along Airport road (this is discernible from the original handwritten proceedings. The typed record indicates Port road).

THE DECISION BY THE LOWER COURT

26. The learned trial Magistrate considered the evidence adduced before him and the written submissions of both counsel and held that failure by the Appellant to call the Driver (of his motor vehicle) and the Investigating Officer and failure to explain their absence was fatal to the Appellant's case. He also noted that the DW1 was not charged with a traffic offence thus the greater need for the Investigating Officer to have testified. Further, no sketch plans, legends and measurements were taken at the scene to assist the court. The trial magistrate dismissed the case, with costs and interest to the defendant.

DETERMINATION

The issue that calls for determination is if the Appellant proved his case on a balance of probability.

In reaching a determination herein, I have considered the lower court proceedings, the grounds of appeal filed by the appellant, the submissions made by both counsel before this Court as well as statute and case law relied upon by parties to this appeal.

27. Justice M. Kasango in the case of D.T. Dobie & Co. Ltd vs Wanyonyi Wafula Chebukati[2014] eKLR cited with approval the case of Miller vs Minister of Pensions (1947) 2 ALL ER 372, where Denning J had this to say:-

“The degree is well settled. It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say; we think that it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case where a tribunal cannot decide one way or the other which evidence to accept, where both parties explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

28. In this matter, a police abstract was produced by PW1 to show that DW1 was to blame for the accident. DW1 was however not charged with a traffic offence. PW1 in his evidence informed the court that he was not the Investigating Officer. In my considered view, his evidence did not assist in any way to build the plaintiff’s case. PW1 did not visit the scene of the accident or take any sketch plan or map of the area where the accident happened for production in court. Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it. Another shortcoming in the appellant's case was the unexplained failure to call the Driver who was driving the matatu at the time of the accident. The said Driver could have shed light on how the accident happened, thus assist the Court in determining who was liable for the said accident.

29. The appellant went to the scene of accident after his Driver informed him of the same. He stated in court that his Driver narrated to him how the accident happened. His evidence in court with regard to what he was told by his Driver was therefore hearsay and inadmissible in evidence.

30. PW1 adduced evidence that trucks were supposed to use the Magongo road and not Airport road. In a matter such as this where the appellant alleged that DW1 used a road that trucks were prohibited from using, it was incumbent upon the Appellant to call direct evidence to prove that DW1 occasioned the said accident as a result of defiance of traffic directives be they by way of a Gazette Notice or a Government Circular. DW1 denied having caused the accident and stated that it was the Appellant's Driver who hit the trailer of the truck that he was driving.

31. The Court of Appeal encapsulated the principle of ‘whoever asserts must prove’ in the case of Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi[2013] eKLR in the following words:-

“-----------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.”

32. After analyzing the evidence adduced before the lower Court it is my considered finding that the learned magistrate was correct in holding that the appellant did not prove his case on a balance of probability. I uphold the said finding. It is clear that the Appellant failed to call crucial evidence to support his case and thereby jeopardized his opportunity of having a judgment entered in his favour. Since he is the one that bore the burden of proof, he lost fairly and squarely. It is my finding that the learned trial magistrate did not misdirect himself in reaching his final decision. This being the case, this court will not delve into the issue of whether the documents produced in court by the Appellant were receipts or invoices or whether they bore stamp duty. Such an exercise will be of no value addition to the outcome of this appeal.

The end result is that the appeal is dismissed. Costs to the respondent.

DELIVERED, DATED and SIGNED in open Court at Mombasa this 18th day of August, 2016.

NJOKI MWANGI

JUDGE

In the presence of

Mr. Ambwere for the Appellant

Ms Gichira for the Respondent

Rose Echor Court Assistant