[2023] KEHC 25307 (KLR)

Kumar t/a Kindo Laboratories Enterprises Ltd v Kaos & Omari (Suing as the Personal Representative of the Estate of Reuben Kemboi Namunya - Deceased) & another (Civil Appeal 23 of 2021) [2023] KEHC 25307 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25307 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal 23 of 2021

AC Mrima, J

November 16, 2023

Between

Vijay Kumar t/a Kindo Laboratories Enterprises Ltd

Appellant

and

Anita Chemtai Kaos And Wilson Namunyu Omari (Suing as the Personal Representative of the Estate of Reuben Kemboi Namunya - Deceased)

1st Respondent

Laxman D. Hiran t/a Tajsan Enterprises

2nd Respondent

(Being an Appeal on liability arising out of the judgment and decree of Hon. J. K. Ng’arng’ar (Chief Magistrate) in Kitale Chief Magistrate’s Court Civil Case No. 134 of 2015 delivered on 23/03/2021)

Judgment

Introduction: 1. The appeal subject of this judgment is on the aspect of liability. It majorly turns on the issue of production of documentary evidence at trial.

2. The trial Court’s proceedings were undertaken in Kitale CMCC No 134 of 2015 Anita Chemtai Kaos and Wilson Namunyu Omari (Suing as the personal representative of the Estate of Reuben Kemboi Namunya (Deceased) v Vijay Kumar T/a Kindo Laboratories Enterprises Ltd and Laxman D. Hiran T/a Tajsan Enterprises (hereinafter referred to as ‘the civil suit’).

3. In the Amended Plaint dated 19th September, 2016, the 1st Respondent herein, then the Plaintiff, averred that on 30th January, 2015, Reuben Kemboi Namunya, the deceased in this matter was lawfully riding his motor cycle registration number KMCK 652Z make TVS along Kitale – Eldoret road. In the course of travel, an accident occurred involving a motor vehicle registration number KBW 229M make Tata Lorry (hereinafter referred to as ‘the lorry’) and the deceased’s motor cycle.

4. As a result of the accident, the deceased sustained fatal injuries. The Plaintiff blamed the owner and driver of the lorry. The 1st and 2nd Defendants were sued in the capacity of being respective owners of the lorry. The Plaintiff sought damages under the Fatal Accident Act and the Law Reform Act.

5. After full hearing of the civil suit, the trial Court found the then Defendants jointly and severally liable in negligence at 90% and the deceased was found to be 10% liable. The trial Court then awarded general damages of Kshs 100,000/= under the Law Reform Act, Kshs 1,020,000/= under the Fatal Accidents Act and special damages of Kshs 500/=. The Plaintiff was also awarded costs of the suit and interest at court rates.

6. The Appellant was aggrieved by the decision and preferred an appeal.

The Appeal: 7. A Memorandum of Appeal dated 4th June, 2021 was filed. The Appellants preferred 10 grounds of appeal. The Appellant mainly faulted the trial Court in the manner it handled the issue of liability.

8. The parties canvassed the appeal by way of written submissions.

9. The Appellant’s submissions were dated 18th September, 2022. The Appellant submitted at length on Sections 8 and 9 of the Traffic Act and referred to several decisions in distinguishing between the registration of a motor vehicle and actual possession especially in instances where the registered owner sells the vehicle, but the changes are not effected with the Registrar of Motor Vehicles.

10. The Appellant faulted the trial Court for disregarding a Sale Agreement for the lorry between the Appellant and the 2nd Respondent herein, which, it vehemently submitted, accordingly wholly discharged the Appellant from liability.

11. The 1st Respondent filed their submissions dated 24th October, 2022. They argued that the trial Court arrived at proper findings on liability since the alleged Sale Agreement was not produced as an exhibit. Counsel referred to several decisions in buttressing the submission.

12. In view of the foregoing, the 1st Respondent urged this Court to dismiss the appeal with costs.

Analysis: 13. The role of the first appellate Court was discussed in Abdul Hammed Saif v Ali Mohamed Sholan (1955) 22 EACA 270. Even though the case was an appeal from the High Court to the Court of Appeal still the applicable legal principles are similar to appeals from the lower Courts to the High Court, hence, its relevance.

14. The Court of Appeal stated as follows: -…. An appeal to this court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally….

15. See also Selle & another v Associated Motor Boat Co. Ltd. & others (1968) EA 123.

16. This Court has carefully considered the Memorandum of Appeal and the parties’ rival submissions as well as the authorities relied upon. The Court has also considered the evidence relied on at trial by both parties.

17. The Court also takes note that the trial Court entered interlocutory judgment against the 2nd Respondent herein. As stated earlier, the appeal turns on the Sale Agreement.

18. The Sale Agreement in issue is dated 26th January 2015. It was entered between the Appellant herein and the 2nd Respondent herein. On execution of the Agreement, the 2nd Respondent parted with the possession of the lorry.

19. The Agreement was listed by both the Appellant and the 1st Respondent in their respective Lists of Documents in the civil suit. The 1st Respondent cited the Agreement vide the Further List of Documents dated 19th September, 2016. The Appellant also cited the same Agreement in its List of Documents dated 18th October, 2016. Both lists annexed copies of the Agreement.

20. The trial of the civil suit was by way of calling witnesses. The 1st Respondent (then Plaintiff) called 3 witnesses. They were Anita Chemtai Kaos, Martin Shikuku Situma (an eye-witness) and a Traffic Police officer No 74526 PC Vincent Nyakundi Nyamai who was attached at Kitale Police Station, Traffic Department. The 1st Respondent then closed its case after producing various documents as exhibits save the Agreement.

21. The Appellant, who was the 1st Defendant, closed its case without calling any witness. No exhibits were produced. As stated earlier, the 2nd Respondent (then 2nd Defendant) did not participate in the trial and an interlocutory judgment entered against him.

22. Be that as it may, the parties before the trial Court filed their respective written submissions. The Appellant’s submissions were mainly centered on the Agreement. It was argued that no liability could attach to the Appellant as a result of the lorry passing ownership to the 2nd Respondent herein. As a result of the then scenario, it was further submitted that the Appellant could not be held vicariously liable for the actions of the driver of the lorry who was not his employee, servant or agent.

23. It was those arguments that the trial Court declined to accept and eventually found the Appellant liable. Those arguments have now been placed before this Court for a re-consideration.

24. The manner in which civil claims are dealt with is guided by various laws. For instance, the Evidence Act applies to matters generally relating to evidence. The Evidence Act is clear on its application to civil claims and affidavits in Section 2 thereof. The provision provides as follows: -1. This Act shall apply to all judicial proceedings in or before any Court other than a Kadhi’s Court, but not to proceedings before an arbitrator.2. Subject to the provisions of any other Act or of any rules of Court, this Act shall apply to affidavits presented to any Court.

25. Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof. They state as follows:107(1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.and109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person

26. There is also the Civil Procedure Act and the Rules made thereunder among other statutes, and, of course, the Constitution, that guide the conduct of civil claims.

27. One of the key attributes of civil law litigation are the doctrines of burden of proof and standard of proof. The doctrine of burden of proof speaks to who bears the responsibility in proving a claim and the standard of proof is on the extent of evidence required to prove a claim.

28. Due the centrality of these doctrines in this discussion, this Court will, albeit so briefly, look at them.

29. The issue of the burden of proof has two facets. They are the legal burden of proof and the evidential burden of proof. The legal burden of proof is what the law provides for. For instance, the Evidence Act in Sections 107(1), (2) and 109 places the duty to prove a claim on the party seekinga Court to give judgment as to any legal right or liability dependent on the existence of some facts which he/she asserts. Such a person must prove that those facts exist. In other words, whoever alleges must prove.

30. That express requirement of the law never shifts from the party seeking judgment based on some set of facts. The burden rests on such a party throughout the case. That is the legal burden of proof.

31. There is also the evidential burden of proof. This legal principle was discussed in Bungoma High Court Election Petition No 2 of 2017 Suleiman Kasuti Murunga v IEBC & 2 others (2018) eKLR as under: -26. The Petitioner on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the Petition. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there. On the other hand, if evidence is adduced to the satisfaction of the Court that an election ought to be impugned, then it becomes the burden of the Respondent(s) to adduce evidence rebutting the allegations and to demonstrate that the law was complied with and/or that the irregularities did not affect the result of the election. At that point the burden is said to shift to the Respondents. That is the evidential burden of proof.27. The principle of ‘evidential burden of proof’ is hence anchored on the rebuttable presumption of validity of election results. That, until and unless a Petitioner discharges the evidential burden of proof an election is presumed valid. It is on that background that the Court in Singh v Mota Singh & another (2008) 1 KLR 1stated that an election is a matter of public importance not to be lightly set-aside and in the case of Jeet Mohinder Singh v Harminder Singh Jassi, AIR 2000 SC 258 the Supreme Court of India stated that ‘the success of a candidate who has won at an election should not be lightly interfered with…Any person seeking such interference must strictly conform to the requirements of the law….’.28. The Supreme Court in the 2017 majority judgment had the following to say on the evidential burden of proof in paragraphs 132 and 133 thereof as follows: -(132)Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.(133)It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behoves the respondent to adduce evidence to prove compliance with the law….

34. It, therefore, follows that whereas the legal burden of proof is static and rests on the party claiming judgment throughout the trial, the evidential burden of proof may shift to the other party depending on the nature and effect of evidence adduced by a Claimant.

35. Next is the standard of proof in civil cases. The Black’s Law Dictionary, (9th Edition, 2009) at page 1535 defines ‘the standard of proof’ as[t]he degree or level of proof demanded in a specific case in order for a party to succeed.

36. In many jurisdictions and decisions world over, three main categories of the standard of proof emerge. They are the criminal standard of proof of ‘beyond reasonable doubt’, the application of civil case standard of ‘balance of probabilities’ and the application of an intermediate standard of proof.

37. The Supreme Court in Presidential Petition No 1 of 2017 Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR discussed the applicable standards of proof and re-affirmed that the applicable standard of proof in civil claims remains proof on the balance of probabilities.

39. In this case, therefore, the 1st Respondent bore the legal burden of proof throughout the trial. It was only after adducing sufficient evidence, on a balance of probabilities, that the evidential legal burden of proof would shift to the Appellant herein.

40. This Court will now apply the above two doctrines in light of how the trial of the case was conducted before the magistracy.

41. As stated earlier, the Agreement, which is now the pillar on which the Appellant’s submissions rests, was not produced as an exhibit in the civil suit. Whereas the Appellant and 1st Respondent herein listed the Agreement as one the documents in their respective Lists of Documents, that was it; it ended just there. There was no attempt or at all by any party in producing the Agreement as an exhibit.

42. The Agreement, therefore, remained in the Court record, but just as such; one of the documents intended to be used in the matter. Since the Agreement was not formally produced as an exhibit, then it did not form the evidential record of the Court. Simply put, the Agreement was not an exhibit.

43. As correctly submitted by the 1st Respondent, the issue of production of documents in a civil claim was dealt with by the Court of Appeal in Kenneth Nyaga Mwige v Austin Kiguta & 2 others (2015) eKLR as under: -16. The fundamental issue for our determination is the evidential effect of a document marked for identification that is neither formally produced in evidence nor marked as an exhibit. Is a document marked for identification part of evidence? What weight should be placed on a document not marked as an exhibit?17. The respondents’ contention is that he appellant by failing to object to the three documents marked as “MFI 1”, “MFI 2” and MFI 3” must be taken to have accepted their admissibility; that at no time did the appellant contest the documents or allege that they were forgeries.18. The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not became part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents- this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the court would look not at the document alone but it would take into consideration all facts and evidence on record.The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of the document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.20. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation or it authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the documents produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would be hearsay, untested and unauthenticated account.21. In Des Raj Sharma –vs- Reginam (1953) 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa –vs- The state (1994) 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.22. Guided by the decision cited above, a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness. In not objecting to the marking of a document for identification, a party cannot be said to be accepting admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production o the document as an exhibit and not at the point of marking it for identification. Until a document marked for identification is formally produced, it is of very little, if any, evidential value.23. In the instant case, we are of the view that the failure or omission by the respondent to formally produce the documents marked for identification being MFI 1, MFI 2 and MFI 3 is fatal to the respondent’s case. The documents did not become exhibits before the trial court; they has simply been marked for identification and they have no evidential weight. The record shows that the trial court relied on the document “MFI 2” that was marked for identification in its analysis of the evidence and determination of the dispute before the court. We are persuaded by the dicta in the Nigerian case of Michael Hausa v The state (1994) 7-8-SCNJ 144 that a document marked for identification is not part of the evidence that a trial court can use in making its decision.24. In our view, the trial judge erred in evaluating the evidence on record and basing his decision on ‘MFI 2’ which was a document not formally produced as an exhibit. It was a fatal error on the part of the respondents not to call any witness to produce the documents marked for identification…….’ (emphasis added).

44. The Appellate Court said it all and in the clearest of all terms.

45. Applying the foregoing to this case, it goes beyond any peradventure that the Agreement, having not been formally produced as an exhibit, did not become part of the evidential record of the Court. In the words of the Appellate Court ‘……It was a fatal error on the part of the respondents not to call any witness to produce the documents marked for identification…’ The position in our case is even worse: the Agreement was not even marked for identification. It was only filed in the Court file and that was it.

46. The above discussion aptly settles the issue of the Agreement. The trial Court correctly declined to be guided by the contents of the Agreement for the simple reason that it was not produced in evidence as an exhibit.

47. That is the same position which this Court will adopt. Therefore, all the Appellant’s arguments based on the Agreement do not have legal leg to stand on and are for rejection.

48. Having found as such, this Court will now address the manner in which the trial Court dealt with the issue of liability among the parties.

49. As stated earlier, the 1st Respondent called three witnesses in proof of the case. They all tendered evidence on the case. PW2 was an eye-witness and PW3 was the Police officer. The scene was visited, investigations carried out and the driver of the lorry was eventually charged in a traffic case.

50. The evidence by the 1st Respondent was, hence, sufficient enough to shift the evidential burden to the Appellant. The Appellant was then under a legal duty to adduce evidence that he was in no way associated with the lorry at the time the accident occurred. That was the essence of the Agreement.

51. The Appellant in turn did not call any witness and closed his case. Effectively, the evidence of the Agreement was shut out of the Court’s purview. In such a case, the Appellant failed to discharge the evidential burden on his part and was correctly found liable.

52. The Court considered the manner the accident occurred on the basis of the available evidence and went ahead to even apportion liability on the deceased. Going by the record, the trial Court was led by the then available evidence and cannot be faulted.

53. The upshot is, therefore, that none of the grounds of appeal tendered by the Appellant is successful.

Disposition: 54. As this Court comes to the end of this judgment, it must profusely apologize to the parties for the delay in delivering this judgment. The delay was caused by the initial state of the typed proceedings which proceedings had to be re-done.

55. With the foregoing analysis, this Court hereby makes the following final orders: -a.The appeal is hereby dismissed.b.The Appellant shall bear the costs of the appeal.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Mr. Atudo, Counsel for the Appellant.M. Gemenet, Counsel for the 1st Respondent.No appearance for the 2nd Respondent.Chemosop/Duke – Court Assistants.