[2022] KEHC 15001 (KLR)

Macharia v Macharia (Civil Appeal E730 of 2021) [2022] KEHC 15001 (KLR) (Civ) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15001 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E730 of 2021

DO Chepkwony, J

October 14, 2022

Between

Stephen Gakere Macharia

Appellant

and

Alfred Ndung’u Macharia

Respondent

(Being an Appeal from the Judgment and decree of Hon. Kyene O. Gweno (RM) delivered on 3rd November, 2021 at the Chief Magistrate’s Court at Milimani Small Claims Court in Nairobi Civil Case No. E263 of 2020)

Judgment

Background 1. The background of this appeal is that vide a statement of claim dated August 4, 2021, the appellant sought the following reliefs against the respondent;a.Judgment in the sum of Kshs 26,902/= as special damages.b.Damages for pain and suffering

2. The facts leading to the filing of the suit are that on or about August 9, 2020, the respondent violently knocked at the appellant’s gate to the appellant’s home at Thome Estate, Safari Park area in Kasarani and when the appellant went to open, he found the respondent who was holding a metal bar and he threatened to kill him while demanding for his father’s property. The appellant reminded him that the case was still pending in court, but the respondent knocked the appellant with his head and the he fell to the ground.

3. That the respondent went on to hit the appellant on the leg with an iron bar and then fled the scene. As a result, the appellant lost Kshs 2,000/= in the process and cracked the screen of his Phathom 6 whose costs is Kshs 21,000/=.

4. The respondent filed a response to the statement of claim in which he denied the allegations of assault.

Evidence 5. The matter proceeded for hearing before the trial court on October 8, 2021, whereby the appellant called two witnesses, namely, PW1 - himself and PW2, Muchoki Mwangi. The respondent on the other hand called 3 witnesses who testified and they were DW1- himself, DW2, Grace Wangui Macharia and DW3, Josephine Makena Mugambi.

6. The appellant who testified as PW1, adopted his statement and testified that he heard someone banging on his door. On opening the door, he found it was his younger brother and a lady. They said the appellant had refused them to sell the house, which belonged to his deceased father. That the younger brother banged his head and hit him with a crow bar that he got injured on the upper left ankle. Muchoki assisted and took him to Neema Hospital. He broke his phone on the process, which he had purchased at Kshs 21,000/=.

7. PW2, Muchoki Mwango adopted his statement dated August 4, 2021 and proceeded to testify that on August 9, 2021, he had visited Stephen Macharia (PW1 herein) at his home at Thome. They then heard the gate being banged loudly and Macharia (PW1)went to open the gate as he (PW2) was at the veranda. He then heard Macharia screaming. PW2 went to find out what was happening and he saw Macharia on the ground. He was told that he had been hit on the head and left leg. He asked PW1 who had hit him and when he lifted up his head he saw two people, a man and a woman. PW2 said that he was told by Macharia that his young brother had assaulted him. He, PW2 had not seen PW1’s younger brother before this incident. By then, the two people were running away.

8. On cross examination, PW2 stated that he found Macharia on the ground and he told him that he had been hit by his young brother but he did not witness the incident. He said that he only saw the two people from the back running.

9. DW1, Alfred Ndung’u Macharia the respondent by adopting his witness statement, called other two witnesses namely, Grace Wangui Macharia and Josephine Makena Mugambi who gave evidence that corroborated his testimony.

10. After a full trial, the trial magistrate found that the claimants testimony was uncorroborated as to the identity of the person who attacked him. He proceeded to find that the claimant had not adduced sufficient evidence in support of the charge of battery and assault. He then dismissed the claimants suit with costs to the respondent.

11. The appellant set out following grounds that:a.The honourable magistrate erred in law in finding that the appellant had not proved his case on a balance of probability despite the respondent having conceded that he assaulted the claimant and/or there was scuffle as between the appellant and the respondent where the appellant had sustained minor injuries.b.The honourable magistrate erred in law in finding that the appellant’s witness did not identify the respondent despite the respondent being well known to the claimant and by so doing further ignored his evidence that the claimant was assaulted by a person known to him in his house, he sustained injuries and that his witness took him to hospital where he was treated and the matter thereafter reported to the police.c.The honourable magistrate erred in law by making a finding contrary to the facts and evidence tendered by ignoring that the respondent conceded to a scuffle between him and the appellant which he had hoped be put to rest.d.The honourable magistrate erred in law by determining the appellant’s case on a burden beyond reasonable doubt as opposed to balance of probability and by so doing placed a burden too high contrary to that required in civil cases.e.The honourable magistrate erred in law in assuming facts not in evidence by assuming that the claimant was out to frame the respondent for battery which occurred in a scuffle the respondent admitted occurred but only disputed where and in which manner it occurred.It is proposed to ask the court for orders that: -i.The appeal be allowed and this court does enter judgment in favour of the appellant as prayed in the claim.ii.In the result the judgment delivered by the learned magistrate on November 3, 2021 be set aside and be substituted with an order allowing the appellant’s case as prayed.iii.The costs of this appeal and the lower court be granted to the appellant against the respondent.

12. Stephen Gakere Macharia (the appellant herein), being dissatisfied with the decision of Hon Kyene O Gweno (RM) delivered on November 3, 2021 in Nairobi Civil Case No E263 of 2021, preferred an appeal to this Court vide a memorandum of appeal dated November 8, 2021.

Analysis and Determination 13. I have carefully considered the memorandum of appeal and the record of appeal before court. I find that the following issue relevant for determination by this honourable court, which is:-“Whether the appellant has made out a case to warrant interference of Judgment and decree delivered by the trial court”

14. It is important to mention that parties did not file submissions despite directions having been issued by this court on February 28, 2022, for them to do so. The court record indicates that the appellant confirmed having filed written submissions but the same are not on the file nor the online e-filing portal.

15. In determining this appeal, it is paramount to point out that, this being a first appeal, this court has a duty to evaluate the evidence that was submitted before the trial court afresh before drawing its own inference while keeping in mind that it did not have the opportunity to hear and observe the witnesses testify before the lower court.

16. This was the position taken in the case of Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court held as follows:-“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 the 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.”

17. The same position was confirmed by the Court of Appeal in the case of Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KARwhere it held that:“An appellate court will not disturb an award for general 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...”

18. This court has the opportunity to look in detail the factual issues in the evidence that was adduced during the trial and evaluate it afresh so as to arrive at an independent conclusion in determining the issue at hand.

19. In its judgment, the trial court stated that the appellant failed to prove his case on a balance of probability and further, proceeded to state that had the appellant proved his case, the court would have awarded him Kshs 150,000/= as general damages for pain and suffering and Kshs 3,902/= as special damages.

20. In the case of William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526, the court stated that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

21. Having perused the record and evaluated the evidence that was adduced during the trial, I agree with the trial court that indeed the appellant failed to prove his case on a balance of probabilities as his evidence was uncorroborated by any other evidence. PW2, who was the main witness in the trial did not witness the incident happen and therefore has account of the events thereof was hearsay from the appellant, hence mere assumptions with no probative value to the appellant’s case.

22. On the issue of quantum, I have considered the authorities that were relied on by both counsel and I am persuaded that the trial court’s assessment was commensurate with the injuries sustained by the respondent and uphold the same.

23. From the foregoing, I find no reason to interfere with the judgment and decree that was issued by the trial court. In the circumstances, this appeal has no merit and is hereby dismissed. However, there are no orders as to costs.It is so ordered.

DELIVERED DATED AND SIGNED IN NAIROBI THIS…14TH DAY OF OCTOBER, 2022. D O CHEPKWONYJUDGEIn the presence of:Mr Agwel for Mr Makumi counsel for appellantNo appearance for and by respondentCourt Assistant - Simon