[2017] KEHC 2496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 50 OF 2010

MICHAEL KIMOTHO ………………………….….APPELLANT

VERSUS

EVANSON WANYOIKE KARIUKI……......…….RESPONDENT

(Appeal from the Judgment and Decree of the Senior Principal Magistrate’s Court at Kandara before Hon. E. Boke R.M delivered on the 4th day of February 2010 in Kandara SPMCC No. 118 of 2008).

JUDGMENT

The Respondent was the Plaintiff in the Lower Court and in his Plaint dated 6th August, 2008 he claimed that on or about 31/05/2008 , he was in the course of his lawful duties as a driver on the instructions of the Defendant, when the Defendant provided him with a defective motor vehicle Registration Number KBB 729B Toyota Corolla that burst a tyre and lost control along Thika - Nairobi road, at Blue post hitting a wall as a result of which he sustained serious injuries. He averred that the said accident was caused by negligence on the part of the Defendant. The particulars of negligence and injuries are particularized in the Plaint.

The claim was denied by the Appellant via a Defence dated 2nd September 2008 who stated that if any accident occurred, the same was wholly or substantially caused by the negligence on the part of the Plaintiff.

The matter was heard and a judgment was delivered on 4th February, 2010 in favour of the Respondent for the total sum of Kshs. 223,100/= less 50% contribution plus costs and interest.

The Appellant being aggrieved by the judgment of the lower Court filed this Appeal on the grounds that:-,

i.The Learned Magistrate erred in law and in fact in finding that the Respondent had proved his case on a balance of probabilities when he was the negligent party.

ii.The Learned Magistrate erred in law and in fact by holding the Appellant was liable for the acts and or omissions of the Respondent.

iii. The Learned Magistrate erred in law and in fact in failing to dismiss the Respondent’s suit when he failed to prove negligence on the part of the Appellant on a balance of probability.

iv.The Learned Magistrate erred in law and in fact by entering judgment for the Respondent and apportioning liability at 50:50.

At the hearing of the Appeal, parties agreed to proceed by way of written submissions which they duly filed.

I have considered the grounds of appeal, the written submissions as well as the authorities cited. An appellate court is tasked with re-evaluating the evidence before the lower Court in order to make a judgment and in so doing it will not interfere with the exercise of discretion by a lower court unless the exercise of that discretion was erroneous in law. This is well captured in Mbogo & Another -v- Shah (1968) EA 93 at 96, where it was stated that

an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which the court should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

The issue for determination by this Court will be whether the Respondent tendered enough evidence in the lower Court to prove, on a balance of probability, that there was negligence on part of the Appellant.

The Respondent (PW1) testified before the lower Court and stated that he heard a tyre burst, the vehicle hit a wall following which he suffered injuries on jaw, left hand, chest and the upper part of the left ear was chopped off. It was his evidence that the tyre burst because it was not in good condition. In cross examination, PW1 further testified that he had borrowed the subject motor vehicle from the Appellant on a friendly basis. That he checked the motor vehicle and confirmed that it was fit for the journey. He further added that he cheked the tyres which he found to be okay but he added pressure on way, to balance the tyres.

The Appellant herein (DW1) testified that the Respondent was not his driver but had given him the vehicle as a friend to go to Nyeri to attend a funeral. That he had imported the car in February the same year and it was in perfect mechanical condition that morning. He had tested the car before handing it to the Respondent.

The Appellant submitted that the burden of proving negligence was on the Respondent and the Learned Magistrate erred in shifting the burden to the Appellant. In his judgment, the trial magistrate stated that the Appellant did not produce any document to show that the vehicle was imported from Japan in February and new tyres were fitted the same month. It was submitted that the Respondent did not adduce any evidence to show that the tyre burst that allegedly occasioned the accident was caused by the alleged defective tyres.

It is trite law that in civil cases, the burden of proof rests with the Plaintiff to prove his allegations on a balance of probability. In this case, it was expected of the Respondent to prove that it was due to the Appellant’s negligence that the accident occurred. In his submissions, the Appellant relied on the case of South Nyanza Sugar Co. Ltd vs. Daniel Ode Matoka where the Court referred to the case of Starpack Industries Limited vs. James Mbithi Munyao where it was held that,

“it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which on a balance of probability, a connection between the two may be drawn…”

Negligence must be strictly proven. From the evidence adduced before the lower court, the Respondent did not show how the tyre burst was as a result of the Appellant’s negligence. In deed, he inspected the car before he took possession and found the tyres to be fit. The allegation that the tyre burst because it was not in proper condition was not substantiated. The Respondent failed to substantiate at what point the tyres became unroadworthy as he had inspected them before the journey and they were fit.

In the case of John Kamoche vs. Hezron Kiranga Njaga (2009) eKLR, the Court held that,

“the Appellant was under a responsibility to prove his case on a balance of probability... There was however no evidence produced to substantiate the Appellant’s allegation that the tyres were worn out, or that the accident was caused by a rear tyre burst… By agreeing to drive a motor vehicle which to his knowledge had worn out tyres, the appellant was not only in breach of the law but also exposed himself and his passengers to foreseeable danger.”

The same position was clearly stated in the case of Kirugi & Another-vs-Kabiya & 3 Others [1987] KLR 347 wherein the Court of Appeal stated that

the burden was always on the plaintiff to prove his case on a balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof.

My re-evaluation of the evidence on record reveals that the Respondent who was the Plaintiff in the trial Court did not adduce any evidence to prove his allegations that the tyre burst was as a result of the bad condition of the tyre. And therefore failed to proof negligence against the Appellant. The Respondent was driving the vehicle at the material time and he was under duty to drive it carefully. In my view if the Respondent was driving the vehicle at a reasonable speed, he could have been in a position to control the same even after the tyre bust. It was probable that he was driving at a high speed and hence, his inability to control the vehicle after the tyre bust.

The upshot of the above is that I overturn the judgment of the trial Magistrate delivered on 4th February, 2010 and replace it with an order dismissing the plaintiff’s claim. The Appeal herein is allowed with costs to the Appellant.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rd Day of November, 2017.

………….......

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent