[2024] KEHC 2434 (KLR)

Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased) v Mwangi (Civil Appeal 120 of 2021) [2024] KEHC 2434 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2434 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 120 of 2021

SM Mohochi, J

March 7, 2024

Between

Monica Wambui Kimani (Suing as the Administratrix of the Estate of Amos Kanina Kimani - Deceased)

Appellant

and

Obadiah Karanja Mwangi

Respondent

(Appeal from the judgement of the Chief Magistrate's Court at Nakuru delivered electronically by Hon J. B Kalo (CM) on 7th October, 2021, in NAKURU CMCC SUIT NO, 299 OF 2019)

Judgment

Introduction 1. The Appellant instituted a Civil Case at Nakuru, CMCC Suit No, 299 OF 2019 vide a plaint dated 19th March, 2019 whereby she sued on behalf of the deceased who was involved in a traffic accident that occurred on 3rd March 2017 involving motor vehicle registration number KBU 155H Station Wagon along Gilgil-Nakuru highway that was being driven by the Respondent and/ or his lawful agents, servants and/or authorized driver in which it was alleged that he negligently and/ carelessly drove, managed the said motor vehicle causing it to lose control, veer off road and knock down the deceased thereby inflicting on the deceased grave and fatal injuries and which he eventually succumbed to on the same day. The Appellant, claimed for general damages under the Fatal Accidents Act and the Law Reform Act, Cap 26 Laws of Kenya; special damages amounting to Kshs 99,750; cost of the suit and interest on all above at court rates.

2. The Respondent filed a statement of defence dated 4th November 2019, in which he denied ownership of the said motor vehicle, the occurrence of the accident, the allegations of negligence on its part and particulars thereof as particularized by the Appellant and instead pleaded that the same was caused by the sole and/or contributory negligence of the Appellant whose particulars he itemized.

3. The Respondentalso denied the particulars of injuries and damages and urged the court to dismiss the suit with costs.

4. The Appellant set the matter for hearing on 4th March 2021 where the Respondent failed to turn-up, call witnesses or tender evidence. Upon presentation and close of the Appellant’s Case, the Respondent’s case was equally closed.

5. By a judgment delivered on 7th October 2021 the learned trial Magistrate Honorable J.B. Kalo dismissed the suit.

The Appeal 6. Being aggrieved by judgment the Appellant preferred this Appeal on 1st November 2021, citing the following grounds in his memorandum of appeal:i.That, the Trial Magistrate erred in law and in fact, in disregarding the Appellant's evidence adduced, the submissions filed and the authorities in support hence arriving at an erroneous finding.ii.That, the trial magistrate erred in law and in fact, in finding the police abstract did not disclose the name of the deceased despite paragraph 9 thereof being self-explanatory hence arriving at an erroneous holding.iii.That, the learned magistrate erred in law and in fact, in finding that, the Appellant did not prove liability on the part of the Defendant and/ or his driver, servant and / or agent notwithstanding that the Appellant's evidence was uncontroverted hence arriving at an erroneous holding.iv.That, the trial magistrate erred in law and in fact, in failing to appreciate the peculiar circumstances of this case and the evolving nature of the law hence arriving at an erroneous finding.v.That, the trial magistrate erred in law and in fact, in totally disregarding the uncontroverted evidence of the police abstract notwithstanding that the Appellant having discharged her evidential burden under the provision of section 112 of the Evidence Act (CAP 80 Laws of Kenya).vi.That, the trial magistrate erred in law and in fact, in dismissing the suit for lack of an eye witness notwithstanding the uncontroverted police abstract produced.vii.That, the trial magistrate erred in law in fact, in misapplying the doctrine of res ipsa Loquitor and evidential burden discharged under section 112 of the Evidence Act hence arriving at an erroneous finding.viii.That, the trial magistrate erred in law and in fact in awarding a global sum of Kshs. 600,000 on quantum notwithstanding that the Appellant's evidence on multiplicand was uncontroverted.ix.That, the trial magistrate erred in law and in fact, in failing to adopt the statutory minimum wage for matatu touts for the year 2017 (Legal Notice No. 112) hence arriving at an inordinately low figure and/ or sum.x.That, the trial magistrate erred in law and in fact, in addressing himself on extraneous issues not borne of the pleadings and evidence hence arriving at an erroneous finding.xi.That, the trial magistrate erred in law and in fact, in referring to non-existent issues not borne of the pleadings and evidence hence arriving at an erroneous finding.

7. This Appeal was admitted on the 5th May 2023, parties were directed to file written submissions of which the Appellant complied on the 30th June 2023 while the Respondent complied on the 29th August 2023.

The Appellants Case 8. The Appellant submits that, when the matter took off to hearing before the trial court on 24th May 2018 it became evident and apparent that the 2nd Respondent had not served its list documents upon the Appellant's counsel. And that it is upon service of the 2nd Respondent's list of documents that it became apparent that the appellant disputed the signature appearing in the loan application form as his hence the need for conducting of forensic examination in an attempt to confirm whether the signature appearing on the loan application form was his signature.

9. The Appellant submits that, at the time of lodging a complaint at Molo Police Station, the DCIO wrote a letter dated 19th March 2015 produced as Pexh 4 in page 14 of the record of appeal to the 2nd Respondent that the said office sought to be furnished with amongst other documents the 2nd Respondent's loan application form or agreement together with all other claim supporting documents in respect to its transaction with the 1st Respondent, only for the 2nd Respondent to decline to furnish the office of the DCIO Molo Police Station with the said documents hence grinding investigations to a halt.

10. Further, the Appellant submits that, efforts by the Investigating officer Godwins Odhiambo to secure documents from the 2nd Respondent purportedly served by the Appellant as a guarantor through a court order in Molo Miscellaneous Criminal Application No 42 OF 2015 never bore any fruits.

11. The Appellant submits that, the question this court should grapple with is, would it not be in the wider interests of justice if the disputed documents are subjected to forensic examination to establish whether the signatures appearing therein belong to the appellant and a report filed in court?

12. The Appellant submits that, that justice must not only be done but must be seen to be done. That the 2nd Respondent has not demonstrated to court in what way it stands to suffer prejudice should the disputed documents be subjected to forensic examinationand a report tabled in court.

13. Reference is made to the case of Continental Butchery Limited Vs Nthiwa (1978) KLR where the court held that“A party to a civil litigation is not to be deprived of his right to have his case tried by a proper trial where, if necessary there has been discovery and oral evidence subject to cross- examination.”

14. The Appellant submits that, It is now not in dispute that he is entitled to a fair and proportionate disposal of suit pursuant to Sections 1A, 1B and 3A of Civil Procedure Act and Article 159(2) (d) of constitution promote tenets of substantive Justice and that continued efforts by the 2nd Respondent of not availing loan application forms allegedly signed by him at the time of police investigations and trial of this suit only goes a long way to demonstrate the signatures purported to belong to him are forgeries and fraudulent.

15. The Appellant submits that, the overriding objective of Section 1A of the Civil Procedure Act is to promote overriding objective of the Act and Rules there under to facilitate the just proportionate and affordable resolutions of disputes governed by the Act and Section 1A (2) of the said Act enjoins the court in the exercise of its powers under the Act or in the interpretation of any of its provisions to seek to give effect to the overriding objectives specified in subsection (i). Subsection 3 thereof declares that a party to civil proceedings or an advocate for such party is under a duty to assist the court to further the overriding objectives of the Act. Section 1B(I) of the Act obliges the court in the furtherance of overriding objectives specified in section 1A to handle all matters presented before it for purposes of attaining the following aims: -a.the just determination of proceedingsb.efficient disposal of the business of the courtc.efficient use of available judicial and administrative resources.

16. The Appellant submits that, it is now not in dispute that his application before the trial court was meant to assist court to further the overriding objectives in a quest to ascertain whether loan application forms sought to be relied on by 2nd Respondent bore the Appellant's signatures and that no prejudice will be occasioned on the 2nd Respondent should the court allow the plaintiff's application in the wider interests of justice and in furtherance of the overriding objectives.

17. The Appellant attacks the grounds of opposition to the application giving rise to the impugned ruling calling them inept, frivolous and without merit. The Appellant urges that his Appeal has merit and should be allowed in the wider interests of justice.

Respondents Case 18. The Respondent has framed a sole issue for determination whether the Appellant (plaintiff) proved her case to the required standard before the trial court and is there a basis for interfering with the judgment of the trial court?

19. The Respondent submits that, it is trite law that in civil cases the standard of proof is on a balance of probabilities which lies with the party who alleges. That the law under Sections 107,108 and 109 of the Evidence Act, Cap.80 Laws of Kenya places the burden of proof as to any particular fact on the person who wishes the court to believe in its existence, unless it is provided by the law that the proof shall be on a particular person.

20. That Section 107 of the Evidence Act sets a foundation upon which the foregoing is based. it categorically provides that,“whoever desires any court to give a judgement as to any legal right or liability depend on the existence of facts which he asserts must prove those facts,"

21. The Respondent place reliance on the case of Treadsetters Tyres Ltd Vs John Wekesa Wephukulu (2010) eklr and the case of Evans Nyakwana Vs Cleophas Bwana Ongaro (2015), where it was held that, “the onus was on the Appellant to prove the driver's negligence and further to prove a causal nexus between the driver's negligence and the accident that occurred. This was the position in Statpack Industries ys James Mbithi Munyao Nairobi HCCA No. 152 of 2003, where Justice Visram (as he then was) stated;“That a person making an allegation must prove a causal link between someone 's negligence and his injury. He stated that a Plaintiff must adduced evidence from which on a balance of probability a connection between the two may be drawn "

21. That, in light of the foregoing, the Respondent submit that, the Appellant failed to meet the threshold that could infer negligence on the Respondent. From the evidence adduced in court the Appellant case only relied on the evidence of PWI who did not witness the occurrence of the accident. PW1 stated that she learnt of the death of the deceased on the morning of 4th March 2017, whereby she was informed by her children that that the deceased was hit by a vehicle in Free Area.

22. That in this case there was no eye witness who witnessed the occurrence of the accident hence reliance on PWI's evidence on the circumstances of the accident without any corroboration would be admitting hearsay evidence.

23. That, it is trite law that an eye witness is a person who gives direct evidence on how an event took place and therefore his/her testimony would have more probative value compared to that of a corroborative witness who can only but provide circumstantial or indirect evidence of the events surrounding the accident.

24. That the investigating officer was not called to testify and give the court a clear picture of how the accident occurred and who was to blame for the accident. No police tie or sketch map was produced to explain to the court how the accident occurred. Clearly. the Appellant failed to prove her case on liability on a balance of probability as was held by the trial court.

25. Reliance is placed on the case of Alfred Kioko Muteti Vs Timothy Miheso & another (2015) eKLR, where the court dismissed the Plaintiff’s case as he did not prove his claim against any of the Defendants under circumstances almost similar to the present case.

26. That similarly in the case of Sally Kibii & another v Francis Ogaro 2012] eKLR the court in upholding the lower court's decision dismissing the appellant's case stated that:“In the Kenital case (above) I held that in all adversarial legal system like ours, a party undermines his case drastically by not calling or failing to call witnesses. The Plaintiff simply did not adduce any evidence before the trial court on liability. They could have called eye witnesses and/or the investigating Police Officer. Proof of negligence was material in this case and the burden of proof wvas upon the Plaintiff. She did not discharge the burden and the appellant's Counsel Submission before me that 'someone, has to explain how the accident took place, is telling. That 'someone' is the Plaintiff who alleges negligence on the part of the Defendant."

27. That, the Appellant in this case bore the burden of proving the case on a balance of probabilities, by explaining how the accident in question took place. She did not do so and for that reason, the case had to fail and, so too, must this appeal.

28. On the issue of quantum of damages, we place reliance on the case of Paul Kipsang Koech & another V Titus Osule Osore (supra) and Kiwanjani Hardware Ltd & another V Nicholas Mule Mutinda (supra) where it was stated that, an appellate court will only interfere with the award of the trial court if it is inordinately so high or low as to represent an entirely erroneous estimate or it is based on some wrong legal principle or on a misapprehension of the evidence.

29. The Respondent relies on the case of Loice Wanjiku Kagunda vs. Julius Gachau Mwangi CA142 of 2003 the Court of Appeal held:“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made u wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award, but whether the lower court acted on the wrong principles (see Maria Musila [1984] KLR 257)”.

30. That the same principle was restated in Gitobụ Imanyara & 2 Others vs. Attorney General (2016| eKLR, where the Court of Appeal held:“...it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan |1981] KLR 349 when it held as per Law, JA that:'An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low."

31. That in the instant case, the trial magistrate despite dismissing the case, proceeded as expected to assess damages he would have awarded to the Appellant had she been successful as follows:i.Pain and suffering Kshs. 50,000/=-ii.Loss of expectation of life Kshs. 100,000/=iii.Loss of dependency, a global sum of Kshs. 600,000/=

32. That, the Appellant has taken issue with the trial court's assessment of damages that the Respondent submits on under the various heads below:

Pain and suffering 33. The Respondent urges this Court to refer to the Appellant's own admission at page 42 of the Record of Appeal that the deceased died on the spot and uphold the sum of Kshs 50,000/= awarded by trial Court. The authority relied on by the appellant at paragraph 60 [P.43] alludes to evidence that the deceased died some 30minutes after the accident and hence the justification for awarding Kshs 100,000/= for pain and suffering.

Loss of Dependency 34. That, the trial court made a global award of Kshs. 600,000/= and the reason for that was because there was no evidence in support of the Appellant’s claim that the deceased was working as a matatu tout and no one from the SACCO came to testify in support of that assertion. Additionally, the deceased had no family of his own and hence even if the court were to adopt a multiplicand, it would be no more than 1/3 of his presumed earning. In the circumstances, the Respondent contends that, the global is Kshs. 600,000. 00/= is reasonable and it cannot be said to be so inordinately high or low to warrant interference by this Court as being an erroneous award.

35. Reliance is placed in the case of Moses Mairua Muchiri V. Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nxula Maina (deceased) I2016] eKLR, Justice Ngaah held thus:“It has been held elsewhere that, where it is not possible to ascertain the multiplicand accurately as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case”.

36. That the same reasoning was adopted in yet another earlier case of Mary Khayesi Awalo & Another V. Mwilu Malungu & another ELD HCC NO. 19 OF 1997 [1999] eKLR where Lady Justice R. Nambuye (as she then was) held:“As regards the income of the deceased there was no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures, In the court's opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence off proper accounting books."

37. The Respondent relies on the case of Eston Mwirigi Ndege & Another V. Patrick Gitonga Mbaya [2018] eKLR the Honourable Justice A. Mabeya dealt with the same issue and stated thus:[16].In the present case, it is not in dispute that the deceased was involved in some farming on family land. That she was rearing cows for dairy products. However, her earnings could not be ascertained. The trial court fixed the sum of Kshs, 9. 024/15 as her minimum wage per month. This was on the basis that it was the minimum wage for unskilled labour at the time under the Regulation of Wages (Agricultural Industry). 2013. (17)In this court's opinion, the process of assessment of damages should not be based on assumption and speculation. It should be based on concrete evidence that is predictable.There is no law that where the profession and/or earning of a deceased person is unknown, the minimum wage should be applied. It becomes speculative in that; different professions will attract different hazards. The multiplicand cannot be the same. lt is therefore in my view safe to adopt the approach of global lump sum award as in the case of Moses Mairua Muchiri (supra) and Mary Khayesi Awalo (supra) aforesaid."

37. The 2nd Respondent submits that, it is trite law that parties who plead must plead with specificity and seek specific prayers of what they want. Having blanket prayers leaves the court in a dilemma on whether to grant the prayers and if it were to grant. As it was held in the case of Kenya Airports Authority V Mitu Bell Welfare Society & 2 others [2016] eKLR while citing Malawi Railways Ltd, -S- Nyasulu [1998] MWSC 3:“As the parties are adversaries, it is let to each one of them to formulate his case in his own way, subject to the basic rules of pleadings...for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice...In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called 'Any Other Business" in the sense that points other than those specific may be raised without notice”.

38. The Respondent submits that, she wholly associates with the holding in the above cases and submit that, the global award approach adopted by the trial court must not be faulted. This is because PW1 merely asserted that the deceased used to work as matatu tout earning a monthly salary of Kshs. 15,000/= but without producing any documents in support. There was also no one from the SACCO to confirm that the deceased was indeed working as a matatu tout, let alone the fact that he was earning Kshs. 15,000/= as alleged and the upshot of the foregoing is that the Appellant's appeal is unmerited and the same should be dismissed with costs to the Respondent.

Quantum 39. This Court has refined the issues under consideration to be:i.Whether this appeal is merited?ii.Whether the Appellants are entitled to costs in this appeal?

40. This being a first Appeal, this Court is obligated to re-evaluate and re-appraise the evidence adduced in the trial court in order to arrive at its own independent conclusion considering the fact that, it did not have the advantage of seeing and hearing the witnesses as they testified. (Selle vs. Associated Motor Boat Company Ltd [1968] EA 123. )

41. The Main Borne of contention by the Appellant is that whether the deceased was identified in the police abstract and that sufficient proof was disregarded by the learned magistrate leading to the dismissal.

42. On this sole important issue, the law is clear that he who alleges must proof. The term burden of proof draws from the Latin Phrase Onus Probandi and when we talk of burden we sometimes talk of onus.

43. Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term ‘burden of proof’ has two distinct meanings:Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into one’s way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if the plaintiff they will not sustain a conviction or claim and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.

44. The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact, is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence.

45. Section 107 of Evidence Act defines Burden of Proof as– of essence the burden of proof is proving the matter in court. subsection (2) Refers to the legal burden of proof.

46. Section 109 of the Evidence Act exemplifies the Rule in Section 107 on proof of a particular fact. It is to the effect that, the burden of proof as to any particular fact, lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the court is the person said to bear the burden of proof. Thus, if one does not discharge the burden of proof then one will not succeed in as far as that fact is concerned.

47. In the case of Alice Wanjiru Ruhiu Vs Messaic Assembly of Yahweh [2021] eKLR the court had the opportunity to assert the principles by holding that;“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues."(16)The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence"

48. The question therefore is, whether the Appellant herein discharged the burden of proof that the Respondent was liable in negligence for the occurrence of the accident wherein the Deceased was allegedly fatally injured?

49. The Pleaded Particulars of negligence as per the Appellant’s plaint included;i.Failing to keep a proper lookout in a busy area of the highway with many pedestrians;ii.Driving the vehicle at an excessive speed in the circumstances in a busy and built up area of the highway with many pedestrians and motorists;iii.Driving without due care and attention to other road users' safety especially pedestrians particularly the deceased;iv.Failing brake, swerve, stop, to slow down, swerve or in any other way control the vehicle so as to avoid the accident thus putting other road users to peril especially the deceased;v.Failing to keep or maintain any or any effective control of the vehicle Permitting the said accident to occur;vi.Driving the said motor vehicle erratically and recklessly and especially on the footpath designated for pedestrians;vii.Overtaking other motorists without ascertaining that it was safe to do so thus putting other road users to peril especially the deceased;viii.Talking on a cell phone while driving the vehicle thus putting other road especially the deceased users to peril;ix.Permitting the vehicle to lose control, veer off the road fatally injuring the deceased;x.Failing to keep a safe distance between the vehicle and the deceasedxi.Driving the vehicle on the wrong side of the road and especially on the lawful side of the deceased;xii.Driving the vehicle while drunk;xiii.Suddenly and without warning pulling towards the side of the deceased without ascertaining it was safe to do so;xiv.Driving the vehicle without adequate braking system;xv.Exposing the deceased to a risk of damage and or injury of which he knew or ought to have known;xvi.Obstructing the path of the deceased;xvii.Failing to hoot or give any notice and indication to the deceased, warning or sign to the deceased; andxviii.Disregarding the provisions of the Highway Code and the Traffic Act Cap 403 Laws of Kenya.

50. In my re-evaluation and re-appraisals of the evidence adduced in the trial court this court notes that only PW1 Testified and she was not an eyewitness and her testimony did not in any way prove any of the eighteen (18) particulars of negligence as pleaded and I am thus convinced that the Appellant failed to discharge her burden of proof.

51. In Susan Kanini Mwangangi & Another versus Patrick Mbithi Kavita [2019] eKLR the Court, with reference to the East African Court of Appeal’s decision in Embu Public Road Services Ltd versus Riimi [1968] EA 22 stated thus: -“The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant…The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence on his part; or that the accident was due to the circumstances not within his control.”

52. Having failed to prove negligence the entire case thus collapsed for want of evidence.

53. The discrepancy in reference to the date on the police abstract was a typographic error to be remedied by review and not appeal.

54. The conditions that have to be met before an Appellate court can interfere with the trial court’s discretion in assessment of damages were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services & Another v Lubia & Another Civil Appeal No 21 of 1984 [1985] eKLR thus:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

55. This court is satisfied that the Appeal is thus without merit the same is dismissed with costs to the Respondents.

Orders accordingly.

SIGNED, DATED AND DELIVERED AT NAKURU ON THIS 7THDAY OF MARCH 2024MOHOCHI S. M.JUDGE