https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8028

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NUMBER **E303** OF 2023 MUNYOKI KILONZO……………………………………...........APPELLANT VERSUS SCHOLASTICA ATIENO OYWER…………………...…........RESPONDENT ***(Being an appeal from judgment and decree in the Chief Magistrate’s Court at Mavoko (Hon. E.K. Suter PM) civil case E246 of 2023 dated 2-11-2023)*** **JUDGMENT** The appellant sued the respondent in Mavoko Chief Magistrate’s court vide civil suit number E246 of 2023 claiming compensation for injuries he claimed to have sustained in an accident that occurred on 5-11-2022 involving motor vehicles registration numbers KDE 225V (hereinafter referred to as ‘KDE’) and KCJ 255U (hereinafter referred to as ‘KCJ’) along Nairobi - Mombasa road. The appellant pleaded that he was a lawful passenger in motor vehicle registration number KDE when the same collided with KCJ and blamed the latter for the accident. In her judgment dated 2-11-2022, the trial court found that after observing the demeanour of the witnesses, the appellant did not strike her as honest person. She consequently held that the appellant was not a passenger in KDE but the driver and that the evidence produced before her pointed to the appellant being the cause of the accident. She dismissed the suit with costs to the respondent. The appellant was aggrieved by the trial court’s findings and preferred this appeal pleading the following grounds; 1. The learned trial Magistrate grossly misdirected herself by finding that the appellant was the driver of the motor vehicle involved in the impugned accident thus liable for the accident. 2. The learned trial Magistrate misdirected herself in finding that it was upon the appellant herein to provide details of the driver of the motor vehicle that he was travelling in to absolve him from liability. 3. The learned trial Magistrate misdirected herself in finding that the appellant had dot discharged the burden of proof to warrant liability being assessed at 100 per cent in his favour. 4. That the trial court erred in its finding on liability, yet the appellant had adduced sufficient evidence to support his case. 5. That the trial court erred in law and fact by dismissing the appellant’s case with costs, yet he had tendered overwhelming evidence to support his case. This being a first appeal, this court is under an obligation of re-evaluating and re-analysing the evidence produced in the lower court afresh as if it were conducting a re-hearing and come to its own independent conclusion. I should however bear in mind that I did not hear the witnesses nor did I have the opportunity to observe their demeanour and therefore give due allowance to that position. This is the established legal principle which has been restated in many cases including ***Njuguna v Gakere & another [2026] KEELC 3199 (KLR)*** where it was held that; *‘The above-mentioned authorities establish a consistent thread. A first appellate court is enjoined to undertake a fresh and independent evaluation of the evidence on record, draw its own conclusions therefrom, and only interfere with the findings of the trial court where it is apparent that such findings are not supported by the evidence, are based on a misapprehension of the material, or are otherwise plainly wrong. At the same time, the Court must remain within the confines of the record and exercise due caution, particularly in matters where the trial court had the advantage of observing the witnesses.’* In order to re-evaluate the evidence, I will reproduce an abridged version of the testimonies of the witnesses as recorded in the proceedings. The reproduced evidence is limited to the issue of liability since that is the only issue in this appeal. ***The appellant’s case*** The appellant called two witnesses, himself and one Mike Too, a police officer attached to Athi River police station. Mike told the court that he was in court to produce a police abstract in respect of the accident in question. He told the court that the accident occurred between the two vehicles near total petrol station and one passenger was injured. He confirmed that the injured person was a passenger and that the result of the investigations was that KCJ was blamed. He testified in cross-examination that he only had the police abstract and admitted that he was not the investigating officer. He also admitted that no sketch map for the scene was produced and that a stationary vehicle can cause an accident. He could not tell where the vehicle was or the circumstances of the accident. The appellant testified by adopting his witness statement in which he had stated that on 5-11-2022, he was travelling as a lawful passenger in KDE when at total petrol station KCJ was so negligently and carelessly driven that it lost control and collided into KDE. He blamed the driver of KCJ for failing to keep proper look out, speeding, lacking control and failing to avoid the accident. In cross-examination, the appellant stated that they were travelling from Mulolongo to Athi River and that KCJ came from behind, tried to overtake and threw them outside. He claimed that he had been given a lift in KDE and that he did not know the name of the driver. He averred that their vehicle was not going at high speed but the other one was speeding. He concluded by saying that their vehicle was hit on the side and fell into a ditch and he lost consciousness. ***Respondent’s case*** DW1 was one Benson Wafula who testified by adopting his statement recorded on 2-06-2023 in which he stated that on 4-11-2022, he was in charge of KCJ which had been contracted to supply cut building stones to a construction site bear Sabaki. He arrived with the stones at 9 pm but could not deliver because the site was closed and therefore parked the vehicle at a lawful slot off the road after exit of Sabaki total petrol station and behind other parked vehicles for overnight stay. The following day at 6.30 am, he went where he had parked and found that KDE had hit his vehicle. The accident had just happened and the appellant who had been injured was being removed from KDE by members of the public. He claimed that the appellant admitted that he was the one driving the KDE and was unable to control it. The police went to the scene and while there, the regular driver of KDE came and it was established that the person who was driving it was not its regular driver. The witness added that his vehicle was stationary and denied that the appellant was a passenger in KDE. He added that after investigations, the police blamed KDE and he was issued with a police abstract dated 7-11-2022 to that effect which he proceeded to produce as an exhibit. He explained that if the accident occurred as explained by the appellant, his vehicle would have been damaged at the front. He produced some photographs of KCJ which was opposed on account of lack of a certificate but the court allowed the production stating that the issue for consideration was the weight of the evidence. In cross-examination, Benson stated that KCJ belonged to Scholastica and admitted that the police abstract produced by the appellant showed that he was a passenger but insisted that, he was the driver and not a passenger. He claimed to know the regular driver of KDE. DW2, one Vincent Makokha told the court that on 5-11-2022 at around 6 am, he was fueling his motor cycle at total petrol station at Sabaki when the accident occurred. He added that KCJ was parked at the parking bay near the station while KDE was entering the slip road. He explained that the driver of KDE attempted to enter the slip road from Mulolongo at a very high speed and lost control and rammed to the rear of KCJ damaging its rear door and beam while the whole cabin of KDE was damaged. The witness added that they removed only one person from KDE. A few minutes later, the real driver of KCJ who he recognized came to the scene. He claimed to recognize the regular driver because he used to service the vehicle. In cross-examination, the witness stated that the person they removed from KDE was injured and that the police came 30 minutes later and found him at the scene. He claimed to have told the police what happened although his name was not in the police abstract. ***Analysis and determination*** I have read through the testimonies of the witnesses, documents produced as exhibits and the submissions of the parties dated 27th June 2025 and 10th December 2024. In order to arrive at a decision on who was to blame for the accident, the court must evaluate the circumstances and make logical conclusions based on the ordinary course of things. The appellant claimed to have been given a lift by the driver of KDE who he did not know. The police abstract he produced showed him as a passenger. The vehicles were taken to the police station after the accident and obviously the drivers of the vehicles must have recorded statements. The appellant did not produce a sketch mao or the extract of the occurrence book where the report on the circumstances of the accident were recorded. The police investigations file in respect of the accident was also not availed. The police officer who testified on behalf of the appellant was neither the investigating officer nor did he have the records of the accident. The court was provided with two police abstracts with different information on who was to blame for the accident. The appellant’s abstract blamed KCJ while the one produced by the respondent blamed KDE. The appellant’s abstract does not indicate the name of the driver of KDE while the one produced by the respondent showed one Alfred Mutuvi. This Alfred must have recorded a statement or was at least reachable yet the appellant did not see it fit to have him to support his case. There were no allegations or claim that any of the abstract did not originate from the police. They bear the same OB number and the same rubber stamp but issued a day apart and in different handwritings. In the circumstances, the court was faced with two competing positions from the police record and could therefore not rely on either in priority to the other. I do believe that it is scenarios as in this matter that justifies the court’s pronouncements that a police abstract is merely proof that an accident was reported. Where the occurrence and liability are seriously contested, the party seeking to rely on the abstract in question must go a step further and prove that the accident actually occurred and the person they are pursuing was to blame for the same. The circumstances of this case are similar to that in ***Kennedy Nyangoya v Bash Hauliers [2016] KEHC 2616 (KLR)*** where Honourable Lady Justice Njoki Mwangi held as follows, a position I agree with; *‘In this matter, a police abstract was produced by PW1 to show that DW1 was to blame for the accident. DW1 was however not charged with a traffic offence. PW1 in his evidence informed the court that he was not the Investigating Officer. In my considered view, his evidence did not assist in any way to build the plaintiff’s case. PW1 did not visit the scene of the accident or take any sketch plan or map of the area where the accident happened for production in court. Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it. Another shortcoming in the appellant's case was the unexplained failure to call the Driver who was driving the matatu at the time of the accident. The said Driver could have shed light on how the accident happened, thus assist the Court in determining who was liable for the said accident.’* The appellant bore the burden of proof as he stood to lose if no evidence was offered at all. It was his case and he was the one who wanted the court to believe that he was a passenger in KDE and was injured. Having gone through the evidence and the judgment of the trial court, I am convinced that the court did not err in finding that the respondent was not liable. With such competing positions, the appellant should have either called the investigating officer or the alleged driver of KDE or produced more evidence of how the accident was reported beyond the police abstract. The trial court heard and observed the demeanour of the witnesses. In fact, she commended in her judgment that after observing the demeanour of the witnesses, she believed that the respondent’s witnesses especially DW2 were consistent on how the accident occurred. The demeanour of witnesses is a crucial component of the testimonies and evidence of the parties. That is why appellate courts are required to give an allowance to the fact that it did not observe the demeanour of the witnesses. The appellant has faulted the trial court for admitting the photographs produced by the respondent in evidence despite there being no certificate to verify their authenticity. In admitting the photographs, the court held that, what mattered was the weight of the evidence and not production of the photographs. I do agree to the extent that, the fact that an exhibit has been admitted in evidence does not mean that the court must take it into consideration the truth of the facts. The probative value of the exhibit is what is important. In ***Mwagandi v Lewa [2025] KECA 1036 (KLR),*** the Court of Appeal ventured into distinction between admissibility of a document and its proof by holding as follows; *‘This Court also distinguished between the admissibility of a document and its probative value in the decision in the case of Parkar & another v NQ & 2 others, [2023] KECA 908 [KLR], and while noting that a document may be admissible but still not carry any conviction and weight or probative value, and that the mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents, held as follows:* *“In a picturesque speech, the Supreme Court of India in Arjun Panditrao Khotkar v Kailash Kushanrao, [2020] 3 SCC 216 observed as under:* *'2. Documentary evidence, in contrast to oral evidence, is required to pass through certain check posts, such as-* *[i]Admissibility;* *[ii]Relevancy and* *[iii]Proof, before it is allowed entry into the sanctum. Many times, it is difficult to identify which of these check posts is required to be passed first, which to be passed next and which to be passed later. Sometimes, at least in practice, the sequence in which evidence has to go through these three check posts, changes. Generally, and theoretically, admissibility depends on relevancy. Under Section136 of the*[*Evidence Act*](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1036/aknkeact196346)*, relevancy must be established before admissibility can be dealt with.'* *Admissibility of a document is tested first. This position was clarified by the Supreme Court of India in Anvar PV v PK Basheer,AIR 2015 SC 180: [2014]10 SCC 473, it is held as under [sic]: 'Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility’* The appellant’s counsel did not cross-examine the respondent’s witnesses on the photographs. Although in my view the production of the photographs did not meet the threshold and criteria for production, I note from my reading of the judgment that, the trial court did not rely or even make reference to the photographs. In that case, the trial court did not get influenced by them in arriving at its decision. The judgment of the trial court cannot therefore be disturbed on the basis of the photographs. Having said the above, I must conclude that this appeal lacks merits. I proceed to dismiss it with costs to the respondent. Dated signed and delivered at Nairobi this **5th** day of **June** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of Miss Maina for the appellant and Miss Onyango for the respondent.