[2022] KEHC 2734 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCA NO. 16 OF 2020

MICHAEL KAMAUNTHENGE...................................APPELLANT

-VERSUS-

NELSON ONGALO.............................................1ST RESPONDENT

JOYCE MBULA KATHYOLI...........................2ND RESPONDENT

JUDGMENT

1. This appeal arises from a judgment delivered by the trial court on 3rd June 2020, in which the appellant’s case was dismissed with no orders as to costs.

2. The appellant (who was plaintiff in the trial court), has now come to this court on appeal through counsel M/s Kipngeno & associates on several grounds of appeal as follows –

1) That the learned magistrate erred in law and in fact by finding that the plaintiff’s evidence on causation of the accident contradicts in his evidence.

2) The learned magistrate erred in law and in fact by finding or purporting to find that when avoiding the accident it is usually a reaction to move off the road on the lane on and not into the opposite lane notwithstanding that the fact that the plaintiff had adduced sufficient evidence before her to the effect that the defendants’ motor vehicle encroached on his lane and violently hit him on his lane as he was trying to go the opposite lane in an attempt to avoid the accident.

3) The learned magistrate erred in law and fact by finding that the plaintiff causation of the accident was unsubstantiated.

4) The learned magistrate erred in law and fact by finding that accused evidence of contributory negligence is not corroborated.

5) The learned magistrate erred in law and in fact by finding that there is no evidence on contributory negligence by the defendants notwithstanding her earlier finding that the plaintiff pleaded contributory negligence and adduced evidence to prove contributory negligence.

6) The learned magistrate erred in law and fact by refusing to attribute blame to the defendants for causing the accident notwithstanding the fact that did not adduce any evidence in court to attribute any negligence on the part of the plaintiff.

7) The learned magistrate totally erred in law and fact by using the plaintiffs conviction and sentence in Makindu Traffic Case No. 558 of 2015 for the offence of careless driving and riding without insurance and driving licence as a basis for blame on the plaintiff for causing the accident.

8) The learned magistrate erred in law by failing to find that the fact that the plaintiff was charged with the offence of careless driving and riding without insurance and driving licence in Makindu traffic Case No. 558 of 2015 did not automatically translate to liability against him.

9) The learned magistrate erred in law and fact by finding that the plaintiff has not proved his case against the defendant on the balance of probabilities.

10) The learned magistrate erred in law and fact by failing to take into consideration the evidence adduced by the plaintiff and the plaintiff’s submissions.

11) The learned magistrate erred in law and fact by failing to properly analyse the evidence on record with a view to finding out which party was to blame for the accident and if both parties were negligent, to what extent was each party negligent.

3. The appeal was canvassed by way of filing written submissions. I have perused and considered the submissions filed by both the appellant’s counsel M/s Kipngeno & Associates and the counsel for the respondents Mwangangi & Associates.

4. The major issue in this appeal, in my view, is the issue of proof of negligence since the appellant’s case was dismissed by the magistrates’ court on failure to prove negligence on the part of the driver of the vehicle which hit him.

5. The burden of proof was on the appellant (who was plaintiff) to prove the respondent negligence, for the court to make a finding in his favour. Section 107, 108 and 109 of the Evidence Act are clear on this that he who alleges must prove for the court to find in his favour.

6. This being a civil case, the standard of proof is on the balance of probabilities. In the present case, the accident did actually occur, so causation was proved. However, what about blame worthiness. In the case of Karanja –vs- Malele (1983) eKLR the court stated as follows –

“ … there should be no distinction which can be drawn on attribution of negligence after seeing danger and negligence is not seeing it before hand, and lastly in assessing blame worthiness the distinction is that the driver had a lethal machine/car in her control. Apportionment of blame represents an exercise of discretion.”

7. In the present case, only the appellant tendered evidence on how the accident occurred. The respondent did not call any evidence is rebutted. In finding that the appellant did not prove negligence on the respondents the trial court stated as follows –

“First and foremost the PAR does not give the causation of the accident. Second, the plaintiff’s evidence on causation of the accident contradicts, in his statement and cross-examination he says the motor vehicle encroached on his lane but in his statement he says, the motor vehicle encroached on his lane and in order to avoid the accident he tried to go the opposite lane but in the process the motor vehicle violently hit him. When avoiding the accident it is usually a reaction to move off the road on the one on and not on the opposite (oncoming) lane.”

8. In my view, what the appellant did of moving the wrong direction might have contributed to the accident, but was not the sole cause of the accident. There was also no evidence that the appellant was hit on the right hand of the road. Additionally, what the trial court stated about moving further left is not fourded on the evidence on record. If the respondents wanted to come out clearly from negligence, they should have called at least one witness to refute what the appellant had said since he had blamed them for the accident, and claimed that their driver was negligent.

9. The magistrates’ court observed rightly that a conviction in a criminal case does not close the door for a claim in negligence or contributory negligence – See David Kinyanjui & e others –vs- Meshack Omari Munyoro – Civil Appeal No. 125 of 1993.

10. With the evidence tendered by the plaintiff before the trial court which is on record, I find that the plaintiff (applicant) proved negligence against the respondents, but the appellant was contributory negligent to the extent of 50%.

11. With regard to the assessment of damages, I find no basis for interfering with the trial magistrate’s awards, which will be subject to apportionment of 50%:50%. Thus the appellant is awarded 50% of the awards of the trial court and 50% costs of this appeal and the trial court proceedings. For the record, the trial court assessed Kshs.1,800,000/= as general damages for pain and suffering and loss of amenities, and Kshs.200,000/= for artificial leg. The trial court also assessed Kshs.100,000/=for loss of earning capacity, and Kshs.13,960/= as special damages, and the respondents will thus pay the appellant 50% of the above awards.

12. To conclude, the appellant is awarded 50% of the above awards of damages as well as 50% costs of appeal and 50% costs of the magistrate court proceedings as well as interest till payment in full by the respondents jointly and severally.

13. Thus the appeal is allowed in part to the above extent. It is so ordered.

DELIVERED, SIGNED & DATED THIS 3RD DAY OF FEBRUARY, 2022, IN OPEN COURT AT MAKUENI.

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George Dulu

Judge