[2004] KEHC 733 (KLR)
The court found that the respondent's case was fatally undermined by material contradictions regarding the date of the alleged accident and inconsistencies between his testimony and the medical evidence. The respondent pleaded that the accident occurred on 25/11/00 but testified that it occurred on 25/11/02, and the...
Source-derived case information.
- Citation
- [2004] KEHC 733 (KLR)
- Parties
- Appellant: Kipkebe Limited; Respondent: Kenry Obuya Omote
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 200 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; lower court judgment set aside; respondent's suit dismissed with costs to appellant
- Legal Topics
- Personal Injury, Pleadings Contradictions, Burden of Proof, Appeals on Merit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipkebe Limited
Appellant
Kenry Obuya Omote
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent proved his case on a balance of probabilities.
- 2 Whether material contradictions in the respondent's pleadings and evidence were fatal to his claim.
- 3 Whether the trial magistrate erred in entering judgment for the respondent despite discrepancies.
Ratio Decidendi
The court found that the respondent's case was fatally undermined by material contradictions regarding the date of the alleged accident and inconsistencies between his testimony and the medical evidence. The respondent pleaded that the accident occurred on 25/11/00 but testified that it occurred on 25/11/02, and the medical evidence did not support his claim. Furthermore, the suit was filed before the date the accident was alleged to have occurred according to the evidence. These discrepancies rendered the respondent's case unproven. The trial magistrate erred in entering judgment for the respondent in the face of these contradictions. The appeal was allowed, the lower court's judgment...
Court Disposition
appeal allowed; lower court judgment set aside; respondent's suit dismissed with costs to appellant
Orders
- The judgment delivered on 8/10/02 is set aside.
- The respondent's case in the lower court is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII CIVIL APPEAL NO.200 OF 2003
KIPKEBE LIMITED …..……………………………………………. APPELLANT
VERSUS
KENRY OBUYA OMOTE ……………………………………………. RESPONDENT
JUDGMENT
This is an appeal against the Judgment and decree of Resident Magistrate Keroka delivered on 8/10/03.
Respondent did not appear either in person or by counsel on the hearing day. Appeal proceeded for hearing ex parte.
Appellant had listed six grounds of appeal which were argued simultaneously. It was submitted that the magistrate erred in entering judgment on liability and quantum against the appellant who was the defendant though the Respondent had failed to prove his case. There were contradictions on the date the accident occurred.
I have considered the submissions. It is clear that there was material contradiction as to when the accident occurred if it ever did. In his plaint the respondent had pleaded that the accident occurred on 25th November 2000. However when he was giving evidence he categorically said the accident occurred on 25. 11. 02. This was not a slip of the tongue as on cross-examination he again confirmed that the accident occurred on 25. 11. 02. This is contrary to his pleading that the accident occurred on 25/11/00. This is a material contradiction especially in the light of denial by the appellant in their defence that the Respondent was never injured.
The Respondent said in evidence that he was examined by a DR. AJUOGA in Kericho. He said that he never went to Awendo. However DR. AJUOGA who was called as PW2 said that his clinic is in Awendo and not Kericho. If indeed Respondent never went to Awendo it means that he is not the person Dr. Ajuoga examined on 1. 4.2003 and the medical report produced as exhibit 2 is not in relationship to any injuries suffered by him.
I find the above discrepancies were fatal. In fact in the judgment the magistrate stated that the accident occurred on 25/11/02 yet the case was filed on 27/9/02 almost two months before the date the accident is alleged to have occurred. In the light of the discrepancies the magistrate erred to find that indeed the Respondent was injured on 25/11/02.
In the circumstances the appeal is allowed. The judgment delivered on 8/10/02 is hereby set aside and substituted with an order dismissing the Respondent’s case in the lower court. Respondent will pay costs both in this appeal and in the lower court.
Dated this 10th day of November 2004.
KABURU BAUNI.
JUDGE
10/11/04.
Mr. Kerosi for Mr. Ogutu for Applicant.
KABURU BAUNI
JUDGE.