[2022] KEHC 2446 (KLR)

REPUBLIC OF KENYA

IN TH HIGH COURT OF KENYA AT KITUI

HIGH COURT CIVIL APPEAL 21 OF 2020

MERCY BEN...........................................................................................1ST APPELLANT

PATRICK KOMU SUING ON BEHALF OF BEN MAILU..............2ND APPELLANT

VERSUS

MT. KENYA DISTRIBUTORS..........................................................1ST RESPONDENT

KARUE INVESTMENTS COMPANY LTD....................................2ND RESPONDENT

Being an Appeal that arose from the decision of Hon. I.G. Ruhu –RM in (Mwingi PM’s Court Civil Case No. 154 of 2017

J U D G E M E N T

1. This is an appeal that arose from the decision of Hon. I.G. Ruhu R.M in Mwingi PM’s Court Civil Case No. 154 of 2017. The case itself was brought by the appellants herein suing on behalf of the estate of Ben Mailu (deceased) as a result of a fatal road accident involving deceased’s motorcycle Registration No. KMDD 522R and Respondents motor vehicle Registration No. KBF 532N. The accident occurred along Mwingi garissa Road on 11th November 2015 and it was the appellant’s case that the Respondent were liable due to the negligence of their driver a claim that the respondents denied.

2. Briefly the facts or the evidence presented to the trial court indicate that the deceased was riding his motorcycle towards Thika General direction from Mwingi. The Respondent’s lorry was also headed the same direction and as the lorry was in the process of overtaking the motorcycle the accident occurred. The Respondent’s driver blamed the deceased that he hit it on the side. There was no eye witness who was called to testify.

3. The appellants case against the Respondents on liability rested on the evidence tendered by PC Karanja (PW3) who testified that the lorry driver was to blame but when pressed during cross-examination, he conceded that he was not the investigator and that investigations regarding the accident were still underway. He therefore, had no basis to blame the lorry driver.

4. The Respondent’s driver testified and informed the court that the accident occurred near Mwingi Power Substation. According to him he was in the process of overtaking the deceased who was riding a motorcycle when the accident occurred. He further testified that the deceased had no helmet or reflective jacket though he did not attribute the same to the cause of the accident. His evidence did not clearly explain how the accident really occurred. His evidence was that he was alone and was shocked to realize that the deceased had died on the spot on impact.

5. The trial court grappled with scanty evidence on how the accident occurred and who was to blame and concluded that the appellants bore the burden of proof and found that the burden had not been discharged and dismissed the appellants suit.

6. The appellants felt aggrieved and preferred this appeal raising the following grounds which this court for purposes of clarity has paraphrased as follows: -

a) Failing to properly scrutinize and evaluate the pleadings, evidence and submissions tendered therein by the Appellant and correctly relating the same to the evidence therein thereby failing to arrive at a fair reasonable decision

b) Concluding that the Appellants’ evidence did not prove a prima facie case

c) Concluding that the Appellants did not prove their case on a balance of probability

d) Failing to consider that the accident was fatal and the deceased could not testify so as to establish apportionment

e) Failing to appreciate the evidence of a police officer who testified in court and stated that the Respondents were to blame for the accident

f) Failing to find out that the Respondents’ evidence did not challenge the appellants’ evidence

g) By considering extraneous mattes not before the court

h) Failing to take into consideration that the Appellants’ evidence on the occurrence of the accident was not challenged by the Respondent

i) Failing to properly take into account the evidence tendered in support of the Appellants’ claim therefore making a wrong decision

j) Concluding that the Appellants did not prove a claim when the Respondent failed to prove that he was not to blame as to the cause of the accident

k) Failing to take into account the Appellants’ submissions, arguments evidence and rely on the Respondent’s averments

l) Not giving reasons in his judgment.

m) Failing to find out that the Respondents were liable to the cause of accident.

7. In the submissions through Mulinga Mbaluka and Co. Advocates the appellants fault the trial court for failing to give proper consideration to the evidence tendered during trial. According to them, the police officer testified and blamed the lorry driver.

8. They have further faulted the trial court for considering extraneous matter. They have however not pinpointed what that extraneous matter was. They claim that the evidence tendered by the appellant was not challenged. They fault the trial magistrate for misdirecting himself on the liability of the respondents’ driver and that it was wrong to lay blame on the deceased without giving reasons.

9. On quantum, the appellants submit that loss of dependency should be pegged at Kshs. 30,000 with a multiplier of 39 arguing that the deceased was a boda boda rider earning approximately 1,000 per day. In summary, the quantum prayed for is as follows; -

a) Loss of dependency Kshs. 30,000 x 12 x 39 x 1/3 - Kshs. 4,680,000

b) Pain and suffering Kshs. 80,000

c) Special damages Kshs. 135,000

Total Kshs. 4,955,270

10. The Respondents have opposed this appeal. They submit tha the trial court was correct in its finding that the appellants had failed to prove negligence against them.

11. They have cited various authorities to support their contention. The authorities cited are:-

Peter Kanithi Kimunya v Aden Guyo Haro 2014 (eKLR) , Sally Kibili & Anor vs Francis Ogaro (2012) eKLR, Ndeto Nzioka Isavi (suing as legal representatives of the Estate of Kyuma Ndeto Singi (deceased) v Abednego Muiwa Juma & Anor (2019) eKLR, Ishamael Nyasimi & Anor v David Onchangu Orioki suing as personal representatives of Antony Nyabado Onchango (deceased) 2018 eKLRand Benter Atieno Obonyo v Anne Nga’ng’a & Another (2021) eKLR

The authorities cited are in respect to the burden of proof and the circumstances when the doctrine of res ipsa logituoapplies.

12. The Respondents submit that the appellants did not adduce any evidence or provide a first-hand account as to how the accident occurred.

13. They have further responded that the police officer who testified did not shed light as to how the accident occurred so as to lay blame on the Respondents and that the only eye witness to the accident was DW1. According to them, the evidence of DW1 was uncontroverted in respect to how the accident occurred.

14. This court has considered this appeal and the response made. This is a first appeal and therefore the duty of this court is to satisfy itself whether the decisions of the trial court was well founded. In Selle & Another versus Associated Motor Boat & Co. Ltd. & Others (1968) EX 123, this principle was well explained in the following observation made;

"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."

15. Going by the above, duty imposed on this court, the issue for determination revolves around whether the trial court misdirected itself on the question of liability. Did the appellant discharge their burden of proving that on a balance of probability the respondents’ driver was to blame for the accident?

16. It is trite that the burden of proof is on the person alleging. Sections 106 and 107 of the Evidence Act is clear.

Section 106 provides:-

‘‘106. Wills Nothing in this Part shall affect the law relating to the interpretation and construction of wills or other testamentary dispositions.’’

Section 107provides: -

‘‘(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.’’

17. It is not disputed that an accident occurred 11th November 2015 along Mwingi Garissa Road at around 3pm and that the accident involved Respondents, Motor vehicle Registration No. KBF 532N and deceased motorcycle Registration No. KMDD 582R. It is also undisputed fact that Ben Mailu (deceased) died as a result of that accident. The postmortem report (P Ex 3) and death certificate (P Ex 4) tendered by PW1 established that fact to the required standard in civil law.

18. The Respondents’ witness (DW1) who was the driver of the subject lorry testified and conceded that the deceased met his death on the spot after the accident.

19. The big question before the trial court was who was to blame for the accident. There is no dispute that there was no eye witness present at the scene of the accident save for DW1 who was the driver of the lorry. There was no eye witness and the appellants case on liability rested on the testimony of the police officer (PW3) who unfortunately was of no much help on the question of liability because though he testified in Chief that the lorry driver was to blame, he on cross examination defused the blame by stating that he was not the investigating officer and had no police file from which he would support his claims. The trial court was left to ‘‘ponder’’ on whether the Appellants had proved that the Respondents were to blame for the accident.

20. The trial court found that the appellant had not discharged the burden of proof. The question paused in this appeal is whether the trial court was correct to arrive at that conclusion based on the evidence tendered.

21. While it is true that none of the appellant’s witnesses gave a first-hand account of how the accident occurred, the testimony of DW1 in my view gave enough indications for the trial court to draw some inferences. The reason why I take this position is that accidents do happen and can be witnessed but at times it can happen where there are no eye witnesses like it occurred in this instance. The only eye witness is the lorry driver who stood blamed for the accident.

In such instances, a court should treat the evidence tendered with some caution since the evidence of such a person could be tilted with a view to absolving himself from blame.

22. The evidence tendered by DW1 does not sufficiently explain how the accident occurred. He stated that he was in the process of overtaking the deceased when the accident occurred. He stated that he saw him clearly as he overtook him. According to him the deceased made a U-turn and hit his lorry which begs the question how would he make a U-turn when the lorry was in the process of overtaking. If he had stated that the deceased was ahead and suddenly made a U-turn it could have made sense but here is a situation where the driver states he clearly saw the deceased riding a motor cycle ahead of him and that as he was overtaking, the accident happened.

23. In such situations, though it is trite that in action for negligence, the burden of proof rests upon the plaintiff alleging it to establish the element of tort, negligence can be inferred in the absence of any either plausible explanation on how the accident occurred. This the rationale behind the doctrine of re ipsa loquitor. In the case of Sally Kibiii and Another versus Francis Ogaro [2012] eKLR, the court was faced with such a scenario and noted the following: -

‘‘The Plaintiff in the trial only produced two witnesses who admitted that they did not witness the accident and could not tell how it happened. The police abstract showed that the accident was caused by collusion of two vehicles and investigation were underway. The failure of the police to determine from the scene of the accident which motor vehicle was to blame and the absence of an eye witness diminishes the appellant’s chance to prove a case of negligence against the defendant….to successfully apply this doctrine (res ipsa loquitor) there must be proof of facts that are consistent with negligence on the part of the defendant as against any other cause…….can safely presume that the mere fact that two cars being KAK 746J and KAG 331K collided, negligence was on the part of the defendant’s cause and not the other. The plaintiff must prove fact which give rise to what may be called res-ipsa loquitor situation.’’

24. In this matter there is denying fact that the person who could have been in a better position to explain what happened during the incident, perished in the accident and the police officer summoned to testify unfortunately took no part in the investigation of the accident and turned up in court without the police file ostensibly to testify and produce the Police Abstract because he had been paid Kshs. 5,000 by the Plaintiff’s Counsel to testify. His evidence was of little assistance to the trial court in determining how the accident occurred and who was to blame.

25. This court has also noted from the appellant’s pleadings that they did not plead the doctrines of res ipsa loquitor but as held in Margaret Waithera Maina versus Michael K. Kimaru [2017] eKLRit is not necessary that a plaintiff must plead res ipsa loquitor for the doctrine to apply. It is sufficient to prove facts which show that the doctrine applies.

26. I have considered the circumstances of the accident. It is clear that the accident occurred in broad day light (at about 3pm).

The respondents’ driver says he saw the deceased riding a motor bike ahead of him without a helmet or reflective jacket. That in my view could not have contributed to the occurrence of the accident. The only thing that may have contributed to the fatality of the accident is perhaps the fact that he did not have a helmet and perhaps that is why he suffered multiple skull fractures as noted from the post mortem report. (P Ex3).

However, what cannot be disregarded is that the accident occurred in the process of DW1 overtaking the deceased. It is not clear whether the lorry brushed or pushed him off the road or the deceased hit the side of the lorry as it overtook. The court of Appeal in Fred Ben Okoth versus Equator Bottlers Ltd [2015]held in the relevant part as follows:-

‘‘Proof of causation is crucial to the success of most of the action in tort, except in instances where the doctrine of ‘‘res ipsa’’ is applicable.’’

I have considered the decision cited by the respondent in Benter Atieno obonyo versus Anne Nganga & Another

[2021 ]eKLR where the court regretted having to dismiss some two cases because the plaintiff failed to prove their case to the required standard. In that case, plaintiff was unable to prove that the defendant caused the accident because she did not witness the accident and the police officer called to testify was not the investigating officer and there was no credible evidence on which negligence could be inferred.

27. However, in this instance, this court has found that the evidence tendered by the respondents’ own driver shows that negligence to some degree can be inferred against him. There is no way the deceased could have made a U-turn when the respondent’s lorry was overtaking. There is also no chance that the driver could have fathom that the deceased was trying to make a U-turn because he had already passed him. Had he knocked him from the front of his lorry, his explanation would have held some water. This court cannot disregard the undeniable fact that access to justice to victim who cannot speak for themselves like in this instance would be a tall order unless courts considers keenly circumstances obtaining with a view to dispensing substantial justice. In my view the absence of an eye witness in itself should not be an impediment to justice particularly where the doctrine of res ipsa loquitor applies.

28. Taking everything into consideration, this court finds that the trial court fell into error when it found that the appellants had not proved their case beyond reasonable doubt. It is not clear who carried the larger degree of blame given the circumstances of the case. In such situations, it is fair that blame be apportioned equally between the deceased and the defendant. I will therefore set aside the finding of the trial court on liability and in its place hold the respondent 50% liable for the accident. It is a fact that had the deceased put on his helmet, perhaps the serious injuries the head suffered could not have been that fatal.

29. On the quantum, I have considered the award which the trial court found that it could have awarded had it found that the case was well founded. On loss of expectation of life, it was apparent that though the deceased was said to be a boda boda rider, there was no proof of income. In such cases, a global award of an amount deemed reasonable is the only way to go. I have no reason to disturb the award of Kshs. 500,000 made by the trial court in the circumstances.

In sum the appellants are given judgements as follows: -

(i) Loss of expectations of life (fatal accident) Kshs. 500,000

(ii) Pain and Suffering Kshs. 50,000

(iii) Loss of life Kshs. 100,000

(iv) Special damages Kshs. 159,970

Sub-total Kshs. 809,970

Less 50% contributory negligence Kshs.404,985

Total Kshs 404,895

Plus, half cost and interests from the date of judgement in the trial court. For avoidance of doubt, the appellant will also have half cost in this appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 8TH DAY OF FEBRUARY, 2022.

HON. JUSTICE R. K. LIMO

JUDGE