[2022] KEHC 1691 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

CIVIL APPEAL NO. 33 OF 2019

LUCY WAMBUI MBURU...........................................................................1st APPELLANT

PATRICK NJOROGE NGUGI.................................................................2ND APPELLANT

(Being the legal representatives of the Estate of Moses Ngugi Njoroge [Deceased])

VERSUS

KAMAU NJUGUNA JOHN............................................................................RESPONDENT

(Being an appeal from the judgment and decree of Hon. Daffline Nyaboke Sure, (SRM)

in Engineer SPMCC 84 of 2018 delivered on 24th July, 2019).

JUDGMENT

Background

1. The appeal is from a judgment of Engineer Senior Principle Magistrate Hon. Daffline Nyaboke Sure delivered on 24th July, 2019 in Engineer Civil Suit No.84 of 2018. The Appellants were the Plaintiffs whereas the Respondent was the Defendant in the said suit.

2. The claim arose from a Plaint filed on 25th July, 2018 seeking damages both under the Law Reform Act and Fatal Accidents Act where the Plaintiffs were suing as the legal representatives of the Estate of Moses Ngugi Njoroge aged 76 who met his demise through a road traffic accident at Engineer-Njabini Road, at Miti Mugwanja area occasioned by the Respondent. The deceased left one dependant, the 1st Appellant (his wife). Together with general damages, the Plaintiffs also prayed for special damages amounting to KShs. 102,400/-, costs of the suit and interests on the three prayers.

3. The Respondent denied being the owner of the motor vehicle registration No. KAV 008J and alleged that the injuries sustained by the deceased were caused solely by the Respondent. The Respondent denied liability for any damages claimed as well as receiving any demand and/or notice of intention to sue as alleged in the Plaint.

4. In her judgment, the learned trial magistrate found that the Appellants did not prove their case against the Respondent and she dismissed the suit with costs.

5. The Appellants appealed the trial court’s decision citing six (6) grounds of appeal as contained in the Memorandum of Appeal dated 26th July, 2019 which can be summarized as follows:

a) That the trial magistrate erred in law and fact by finding that the Applicants did not prove their case on liability against the Respondent.

b) That the trial court erred in law and fact in failing to uphold the evidence of the Appellant’s eyewitnesses John Thuo Kagechu and John Kihara Ngumba and by finding that the Appellants did not establish Negligence and the involvement of the Respondent in the accident.

c) That the trial court erred in law and in fact by relying on the inspection report that did not indicate that the subject motor vehicle had pre-accident defects while some witnesses for both parties were categorical that the motor vehicle had dent on the front number plate with scratch marks on the left side and bonnet.

d) That the court erred in failing to take judicial notice that the impact of vehicle with a pedestrian would not be so obvious as would be with impact with another vehicle as the human body cannot render damages as a car would.

e) That the trial court failed to consider and uphold the submissions made on behalf of the Appellants.

f) That the trial court erred in law and fact in failing to take cognizance that all the Respondent’s eyewitnesses were his relatives, being his wife, his daughter and a mason and treat their evidence with caution.

Summary of evidence

6. Four witnesses testified for the Plaintiffs’ case, with the 1st witness being the 1st Appellant.

7. PW1, Lucy Wambui Mburu was the deceased’s wife. She stated that on 16/07/2017 she was walking as a pedestrian when motor vehicle registration number KAV 008J veered off the road and hit him sustaining fatal injuries. She stated that she spent over Kshs. 100,000/ on mortuary fees and attendant funeral expenses. She conducted a search on the vehicle and found out that the Respondent was the registered owner of the car, paying Kshs.550/- for the Certificate of Search. She further stated that she petitioned court for letters of grant ad litem for which she paid Kshs. 1,650/-. She further stated that the deceased made over Kshs. 30,000/- per month which sustained his large family.

8. She prayed for general damages, costs of the suit and interests thereon.

9. In cross examination, she stated that she was told that her husband was hit by a vehicle and she made it to the scene of the accident. She stated that the body was beside the road with the head facing the road. She stated that the deceased was walking on the left side of the road. She narrated that the road had lined trees and a ditch. She further informed court that she stayed with her grandchildren. She maintained that she was a farmer with the deceased on leased land and they made Kshs 30,000/- per month.

10. PW2, Patrick Njoroge Ngugi the 2nd Appellant was the deceased’s son and informed the court that on 26/07/2017 he received a phone call informing him that the deceased was involved in a road accident with motor vehicle registration number KAV 008J owned by Kamau Njoroge Njuguna. He testified that the impact of the accident caused the death of the deceased. That the deceased was 76 years old and would earn Kshs. 30,000/-. That the deceased supported him and his siblings financially.

11. In cross examination, the 2nd Appellant stated that he was a business man selling vegetables and further that when the deceased was alive he did not rely on him. He stated that he did not witness the accident himself but was informed about it.

12. PW3, John Thuo Kagechu testified that on 16/07/2017 he was cycling on motor cycle registration number KMCH 112A towards Ol-Kalou when he noticed motor vehicle KAV 008J coming from the opposite direction. He then saw the car take a U-turn toward the Engineer direction when it hit the deceased. He testified that the vehicle attempted to speed away, prompting him to give chase. He overtook it and stopped on the road so as to stop it. He added that a pedestrian shouted at the escaping motor vehicle and asked the driver and its occupants to report the accident at Kinangop Police Station.

13. In cross examination, PW3 stated that he was about 50-100 metres away from where he saw the accident occur. That at that time, he had stopped to pick a pillion passenger. He then saw a vehicle coming towards them. That at 50 metres, the vehicle made a U-turn to the right and people on the right side screamed. When he reached the scene he noted that a man had been hit.

14. PW3 went on to state that people implicated motor vehicle KAV 008J as having hit the deceased. He stated that he went to the police station the next day and found the subject vehicle there. He noted that the number plate was slightly twisted, windscreen intact and the left door had a dent. He added that the driver was stopped by other people. He confirmed where the body lay on the left side of the road facing Njabini. He stated that he never recorded a statement with the police.

15. PW4, John Kihara Ngumba testified that he was a pillion passenger on 16/07/2017 astride motor cycle KMCH 112A being ridden by PW3. He noted that he saw an oncoming motor vehicle KAV 008J suddenly take a U-turn. In the process, it lost control and hit a pedestrian. He stated that he advised the driver of the motor vehicle to report the incident at Kinangop Police Station.

16. In cross examination, he stated that the subject vehicle made a U-turn while on the right side of the road. He further stated that he was 40-50 metres away and that he never recorded a statement at the police station. He stated that he only saw the subject vehicle make a U-turn and not the actual collision but that other pedestrians implicated the vehicle. Further, that they followed the subject vehicle which had been stopped. He stated that the number plate of the vehicle was cracked and broken.

17. The defence also called four witnesses.DW1, Police Constable George Odhiambowas the investigating officer. He was notified of the accident by his colleague. He testified that he reported to the police station where he found motor vehicle KAV 008J and was informed by his colleague that the vehicle had knocked down a person. He proceeded to the scene and found a dead body on the left side of the road with blood on the road on the tarmac. He testified that at the scene he checked for rubble, vehicle particles which yielded nothing. The road had no skid marks or braking impressions.

18. DW1 further stated that he issued a police abstract to PW1. He noted that the subject vehicle had a scratch mark on the left side of the door and bonnet. He noted that an inspection of the vehicle revealed no damages. He further stated that he did not charge anyone as the scene had been tampered with.

19. In cross-examination, DW1 stated that the vehicle exhibited no possible damages aside from the scratches of the left door and bonnet. He stated that he interrogated bystanders but still did not find a clear picture of how the accident occurred.

20. DW2, John Njuguna Kamau, (herein the Respondent)testified that whilst driving motor vehicle KAV 008J along the Engineer-Njabini Road, he saw a body lying on the road and slowed down. He then stopped a few metres from the body. He noted an oncoming slowing down vehicle. The driver of the vehicle advised him to report to the police station and on this advice, he made a U-turn. He enquired from a couple of bodaboda (motor cycle) rider where the police station was where he reported that he saw a body lying beside the road. Police told him to leave his vehicle at the station for inspection and after the inspection it was released to him. He was issued with a Police Abstract and was informed that even if he did not hit the deceased it was mandatory that they write particulars in the abstract. He stated that the investigating officer indicated in the Abstract that he did not hit the deceased but only found the body on the road.

21. DW2testified that he was surprised to be sued. He testified that on the material day he was with his wife, daughter and a carpenter friend of his. He stated that the number plate had changed positions due to the vagaries of driving. He added that he was driving at a speed of 50 kilometers per hour.

22. In cross examination, DW2 stated that he stopped having been disturbed by the presence of a body on the road which was the most human thing to do.

23. DW3, Anastacia Amagove Kamau, the wife to DW2 testified that she was seated on the co-driver’s seat in KAV 008 J. She entirely corroborated the evidence of DW2.

24. In cross-examination, she stated that she is the one who alerted her husband of the presence of a body on the road. She stated that the only vehicle on the road other than theirs was an oncoming vehicle whose driver advised them to report the matter to the police.

25. DW4, John Ngaruiya Muchendutoo was a passenger aboard KAV 008J on 16/07/2017 being driven by DW2. He was seated behind the driver. He equally corroborated the evidence of DW2 and DW3. He added that he accompanied DW2 and DW3 to the police station leading to the detention of the vehicle for purposes of inspection.

26. The trial court found that the Plaintiffs had not proven their case on liability and thus dismissed the suit with costs.

27. In arriving at this finding, the trial court considered the testimony of the PW1 who visited the scene while it was still fresh and saw the body of the deceased. It further considered the evidence of PW2 who reiterated her evidence. The court considered the evidence of John Kagechu, a bodaboda rider who said he saw the subject vehicle make a U-turn and hit the deceased. The court took into account the Defence witnesses’ evidence including the police officer, the Respondent car’s occupants who from their perspective gave evidence that the Respondent did not cause the accident.

28. In evaluating the entire evidence adduced before it, it arrived at a finding that indeed the Respondent did not cause the accident and was therefore not liable to pay any damages to the Plaintiffs. It dismissed the suit with costs.

Submissions

Appellant’s submissions

29. The Appellants relied on submissions dated 31st May, 2021. They submitted on each of the grounds of appeal.

30. On ground one of appeal that; the trial magistrate erred in law and fact by finding that the Applicants did not prove their case on liability against the Respondent, the Appellants referenced to the evidence of the eyewitnesses. With respect to PW2, John Thuo Kagechu and PW3, John Kihara Ngumba it was submitted their testimonies were in tandem with their written statements. It was submitted that the U-turn swerve that the Respondent made caused the fatal accident. Hence, the Plaintiffs had proved negligence on the part of the Respondent.

31. On the ground that; the trial court erred in law and fact in failing to uphold the evidence of the Appellant’s eyewitnesses John Thuo Kagechu and John Kihara Ngumba and by finding that the Appellants did not establish negligence and the involvement of the Respondent in the accident,the Appellants submitted that the two eyewitnesses’ evidence was not controverted by the Respondent. Thus, the trial court erred in holding in the contrary.

32. On the ground that; the trial court erred in law and in fact by relying on the inspection report that did not indicate that the subject motor vehicle had pre-accident defects while some witnesses for both parties were categorical that the motor vehicle had dent on the front number plate with scratch marks on the left side and bonnet,the Appellants submitted that the trial court failed to take into account that the eye witnesses’ testimonies that the number plate was dented and had changed direction.. They submitted that the reliance by the trial court on the inspection report was misleading as both sides of the case agreed that the motor vehicle had a dent and scratches.

33. As regards the ground that; the court erred in failing to take judicial notice that the impact of a vehicle with a pedestrian would not be so obvious as would be with impact with another vehicle as the human body cannot render damages as a car would, the Appellants submitted that the ground was merited because an impact of a vehicle with a human body could not necessarily cause a big impact on a vehicle.

34. As regards that; the trial court failed to consider and uphold the submissions made on behalf of the Appellants, the Appellants submitted that the totality of the evidence considered, the trial court arrived at a wrong finding that liability had not been established. It was submitted that the eye witnesses were honest with no ulterior motive in accounting what they saw.

35. On ground that; the trial court erred in law and fact in failing to take cognizance that all the Respondent’s eyewitnesses were his relatives, being his wife, his daughter and a mason and treat their evidence with caution, it was the submission of the Appellant that the evidence adduced was unlikely to be free from bias.

Respondent’s submissions

36. The Respondent filed his written submissions on 21/09/2021. On liability, it was submitted that the same was not established pursuant to Section 34 of the Evidence Act. That is to say that the Plaintiffs’ witnesses gave contradictory evidence based on the same facts and issues. The Respondent submitted that although PW3, John Thuo Kagechu testified that the Respondent’s motor vehicle took a U-turn and hit the deceased, he would later controvert it in cross examination when he said that he did not see the vehicle run over the deceased. The same submission was made as regards PW4, John Kihara Ngumba who was a passenger of PW3. That according to the two witnesses, it was on-looking members of the public who implicated the Respondent but were not called to testify. This therefore left the Plaintiffs’ pleadings uncorroborated by the evidence adduced.

37. The Respondent mooted that in calling four witnesses who gave corroborative evidence was a testament that his case rebutted that of the Plaintiffs. Furthermore, it was submitted that, the investigating officer who visited the scene exonerated him. That he was also exonerated by the motor vehicle inspector as his vehicle was found not to have caused the accident.

38. It was the submission of the Respondent that the evidentiary burden of proof as set out in Section 109 of the Evidence Act was not discharged by the Appellants and urged the court to dismiss the appeal. The Respondent relied on the case of Martin vs Shamash Brothers Limited [1995-1998] 1 EA 179 at 180 where the court held that there was no liability without fault in the Kenyan legal system and a Plaintiff basing his or her claim on negligence had to prove some negligence on a balance of probability.

39. The Respondent submitted that the Appellants were converting written submissions into evidence. The Respondent contends that written submissions cannot substitute evidence. That it was clear that the Appellants’ witnesses had failed to support the Appellants case in which case the court had no alternative but to dismiss the appeal.

40. Further reliance was placed on the case of Eldoret Civil Appeal 92 of 2009Daniel Kimani Njoroge vs James K. Kihara & another [2011] eKLRwhose facts of the case were, inter alia, that there was no eyewitness called to confirm the speed of the vehicle or whether the defendant’s driver was speeding or whether or not the deceased was the one to blame for the accident, consequent which the case was dismissed.

Analysis and determination

41. The duty of the first appellate court to reconsider the evidence of the trial court, re-evaluate it and make its own conclusions cannot be overemphasised. It must however be born in mind that the court did not have an opportunity of hearing the witnesses and observing their demeanour and so due regard for that should be given. Again, an appellate will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on misapprehension of the evidence or the trial court acted on wrong principles in arriving at its findings.

42. The Court of Appeal in the case of Civil Appeal No. 161 of 1999 Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLRstated that: -

“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

43. I have accordingly considered the evidence adduced before the trial court as well as the respective submissions after which I deduce that there is only one issue for determination namely whether the Respondent was to blame for the accident and if so, whether he was liable to pay damages.

Was liability established?

44. Under this head, the learned trial magistrate held that the Appellants had not proved negligence on the part of the Respondent to the required standard and consequently, dismissed the suit with costs. In so holding, she observed that the investigating officer, DW1, had no answers as to how the accident occurred even after visiting the scene. He observed that the scene presented blood but no debris, rubbles, skid marks or braking impressions indicative of a road accident. The learned magistrate further relied on the post mortem which yielded that the injuries sustained by the deceased could only be occasioned from a high impact accident. The perplexity is taken a notch higher as the suit vehicle did not present damages from what the post mortem indicated would occasion the injuries sustained by the deceased.

45. As to the two Appellants’ eye witnesses John Thuo Kagechu and John Kihara Ngumba, the following is noted from their evidence:

John Thuo Kagechu: ‘‘...was riding motor cycle No. KMCH 112A and saw the vehicle make a U-turn and hit the deceased. The vehicle tried to flee but he gave chase and managed to compel it to stop by overtaking and stopping in the middle of the road. There was another pedestrian who advised the tensed driver and occupants to report at Kinangop Police Station...’’ (Emphasis added)

41. In cross-examination he stated:

‘‘…I noted a man had been hit. He was on the left side of the road. People implicated the U-turn vehicle whose registration I had noted…I gave chase…’’ (Emphasis mine).

42. From the foregoing, it is unclear whether the said witness did see the suit vehicle hit the deceased. In examination in chief, he said that he saw the Respondent hit the deceased after which he gave a chase. In reneging on that statement in cross examination, he stated that he saw that a man had been hit and was lying on the left side of the road. That it was at the scene that members of the public implicated the U-turn vehicle. These two statements were a total self-conflicting piece of evidence, rendering doubt as to whether the witness saw the accident happen or it is those members of the public he found at the scene who saw the Respondent hit the deceased.

43. It is noteworthy at this point that the investigating officer, DW4 who interviewed people at the scene not only failed to secure the people who are said to have implicated the Respondent as witnesses but also that it is hearsay evidence they adduced as revealed in cross-examination of the first eyewitness. He was himself at the scene and he testified based on raw investigations. My view is that the two eyewitnesses did not witness the Respondent hit the deceased. The Motor cycle chase after the Respondent must have been an impulse response after a pedestrian was seen lying on the road after an accident. I totally discredit the evidence of both PW3 and PW4.

44. PW4, John Kihara Ngumba stated:

‘‘...was a pillion passenger in Kagechu’s motor cycle. At Miti Mugwanja he saw the vehicle take a U-turn lose control and hit a pedestrian. The vehicle did not stop and Kagechu gave chase and forced it to stop. With the assistance of another pedestrian they advised the driver to report to the police...’’

45. In cross-examination, he said:

‘‘I witnessed the accident…I never recorded statement at police station...I only saw the vehicle do a U-turn. I did not see the actual collision but other people implicated the vehicle…’’

46. Again, PW4 failed to salvage the case for the Appellants. He too was categorical in cross examination that he never saw the collision, which again renders his testimony in each that he had seen the accident worthless.

47. From the above excerpts, it is doubtful that the two witnesses actually saw the accident occur. Clearly, they confirmed in the cross-examination that they had heard from other members of the public that the Respondent hit the deceased. Their evidence cannot be taken as gospel truth. They merely came to court to support a party who had sued another party.

48. Furthermore, quite apart from the investigating officer who conclusively testifying that the subject motor vehicle was not involved in an accident, the vehicle was taken for inspection and a similar conclusion was made by the motor vehicle inspector. A motor vehicle inspection report was adduced in evidence in this respect.

49. Consequently, I find no fault in the learned trial magistrate finding that the Respondent was not liable for the accident. The burden of proof in a civil matter is on a balance of probabilities whose threshold was ably espoused in the High Court Civil Appeal 7 of 2014Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR where it was held that:

“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

50. In view of the testimonies of the Appellants’ witnesses, it is clear that the Appellants were unable to discharge the burden of proof. They totally failed to show that the Respondent hit the deceased as a consequence which he was liable to pay damages. What this means is that the learned trial magistrate did not err in dismissing the Appellants’ claim. Equally, I find this appeal unmeritorious. The court having found that the Respondent was not liable for the accident means that it cannot delve into the issue of damages payable.

51. It has been argued by the Appellants that the tort of negligence was proven by the doctrine of res ipsa loquitor.I find the same inadequate in the instant case as the set of the circumstances do not build up this doctrine. In Margaret Waithera Maina v Michael K. Kimaru [2017] eKLR it was held as follows with regards to the doctrine of Res Ipsa Loquitor:

“…the doctrine applies only in situations where an accident occurs and no other explanation can be attributed to it other than inference of negligence on the part of the defendant. This was not the situation in the above accident and the same was not pleaded. The doctrine is normally used to establish a tort of negligence in the absence of a proper explanation on how the accident occurred. The doctrine applies in situations where surrounding circumstances may permit an inference of a presumption of negligence on the part of the defendant if that defendant cannot offer an explanation in rebuttal...”

52. I am inclined to agree with the sentiments of Hobhouse L.J. in the case of Ratcliffe v. Plymouth & Tobay HA 1998 PIQR 170that:

“...the expression Res ipsa loquiturshould be dropped from the litigator's vocabulary and replaced by the phrase 'a prima facie case'. Res ipsa loquitur is not a principle of law: it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case has been made out.”

53. Nevertheless, in Mombasa Court of Appeal Civil Appeal 91 of 1987 Nandwa v Kenya Kazi Limited [1988] eKLR, cited with approval a portion of Barkway v South Wales Transport Company Limited [1956] 1 ALLER 392,393 Bon the nature and application of the doctrine of res ipsa loquitorthat:

“The application of the doctrine of res ipsa loquitor, which was no more than a rule of evidence affecting onus of proofof 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.”

54. The eyewitnesses are the fulcrum on which everything turns in, in this appeal and the court below. Having contradicted themselves in their evidence as enunciated herein above, I am inclined to hold that they neither witnessed the accident nor proved in any other way that the Respondent caused the demise of the deceased. Again, the fact that the Respondent stopped at the accident scene did not render him culpable. He testified, and that has not been rebutted, that he was an onlooker just like other people who stopped at the scene.

55. Further, by PW3 and PW4 not recording statements at the police station and by the further evidence adduced by the investigating officer, it leaves the balance of probabilities tilting in favour of the Respondent’s position that he never caused the accident.

56. In the result, this appeal is hereby dismissed with costs to the Respondent.

57. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 10TH DAY OF FEBRUARY, 2022.

G. W. NGENYE-MACHARIA

JUDGE

1. MS. CHELANG’AT FOR THE APPELLANTS.

2. MS. KIBERENGE FOR THE RESPONDENT.