[2022] KEHC 15093 (KLR)

Mutyota v Philip & 2 others (Civil Appeal 62 of 2019) [2022] KEHC 15093 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15093 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 62 of 2019

GMA Dulu, J

November 3, 2022

Between

Samuel Musyoka Mutyota

Appellant

and

Francis Mutinda Philip

1st Respondent

Steve Mutuku Peter

2nd Respondent

Jackson Wambua Muthoka

3rd Respondent

(Being an Appeal from the judgment and decree of Hon. E. Muiru (SRM) in Kilungu Principal Magistrate’s Court Civil Case No.124 of 2018, delivered on 25th July 2019)

Judgment

1. In a judgment delivered on July 25, 2019, the trial magistrate at Kilungu dismissed the plaintiff’s suit with costs, as in the opinion of the magistrate; the plaintiff did not prove his case on the balance of probabilities.

2. Aggrieved by the decision of the trial court, the appellant (who was the plaintiff in the trial court) has come to this court on appeal through counsel Waiganjo Wachira & company on the following grounds –1. That the learned magistrate erred in law and fact in dismissing the appellant’s case.2. That the learned trial magistrate erred in fact and in law in finding that the respondents were not liable.3. That the learned trial magistrate erred in law and in fact by applying the wrong principles and misapprehending the evidence as a result arrived at the wrong decision.4. That the learned trial magistrate erred in law and fact in failing to appreciate the particulars of negligence proved by the appellant and thereby arriving at a wrong and erroneous conclusion of dismissing the appellant’s case with costs.5. That the learned trial magistrate erred in law and in fact in failing to award general damages for the injuries occasioned to the appellant without any legal and or evidential justification.6. That the trial magistrate erred in law and in fact by not considering the written facts, evidence, submissions and case law filed by the appellant.7. That the learned trial magistrate erred in law and in fact in granting orders that she did.8. That the learned trial magistrate erred in law and in fact in failing to consider and have due regard to the appellant’s case and to the facts and evidence presented in support thereof.

3. Relying on the above grounds, the appellant now asks this court to allow his appeal with costs, set aside the judgment in Kilungu PMCC No. 124 of 2018 and or vary the judgment in such terms as the court may deem fit and just.

4. The appeal was canvassed through written submissions. I have perused and considered the submissions filed by Waiganjo Wachira & company for the appellant and the submissions filed by Kimondo Gachoka & company for the respondents. Both counsel relied on decided case authorities.

5. This being a first appeal, I am bound to be guided by the principles stated in the case of Selle –vs- Associated Motor Boat Co. Ltd (1968) E.A 123 in which the Court of Appeal for East Africa, stated inter alia as follows –“An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles on which 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”.

6. In determining this appeal also I have to bear in mind that the burden of the appellant herein (plaintiff at the trial court) was to prove his claim on negligence on the balance of probabilities. It is trite that even where the case proceeds through formal proof, such burden of proof is the same see Karugi &another –vs- Kabiya [1983] e KLR.

7. With regard to what constitutes proof on the balance of probabilities, I take guidance from the English case of Miller –vs- Minister of Pensions[1947] 2ALL ER 372 wherein Denning J. stated as follows –“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in criminal cases. If the evidence is such that the tribunal can say, we think it more probable than not, the burden is discharged, but if the probability is equal it is not”.

8. In the present case, the appellant called one witness Pw1 Samuel Musyoka Mutyota whose evidence was that on 28/03/2018 he was travelling as a passenger in a motor vehicle of the respondent when an accident occurred and he was injured near Matiliku. That he went to hospital for treatment and was so treated and fully recovered from the injury sustained on the left hand, left side of the chest, and left side of the stomach. It was his evidence that he reported the incident to the police, was issued with P3 form after 3 days, but that he did not take the P3 form to the police. He relied on a number of documents, but not the P3 form.

9. On their part, the respondent also called one witness Dw1 Dr. Natasha of Matiliku hospital. He produced hospital documents from the hospital filled by Dr. Stephen Musembi. According to the doctor’s evidence, the outpatient treatment records at the hospital did not show that the appellant was treated there during the period in question. According to the doctor outpatient card 5778/18 relied upon by the appellant was for Naomi Katumbi and was issued on 29/3/2018. The doctor produced a letter from the hospital dated 23/7/2018 to confirm that Samuel Musyoka was not treated at the medical facility.

10. Having reconsidered the evidence on record, I come to the same conclusion with the trial court that the appellant did not prove on the balance of probabilities that he was a passenger in the vehicle, nor that he was so injured.

11. The first reason is that the P3 form, said to have been issued by the police to him, was not produced in court nor even relied upon by the appellant. In my view, the fact that a police abstract is relied upon is not proof of occurrence of an accident, as a police abstract is merely extracted from a report entered in the Occurrence Book, irrespective of whether the reportee was stating the truth. In a case. Where there is a contest as to whether the incident did occur, then additional supporting evidence such as evidence from a police officer from the respective police station, has to be tendered in court, which was not done in the present case.

12. The second reason is that the appellant said that he was injured, and that he went for treatment at Matiliku hospital. The hospital record however, shows that he was not so treated at the said hospital. The outpatient card number he relied upon also was for another person called Naomi Katumbi. In effect, the appellant was not stating the truth regarding medical treatment at the hospital due to injuries suffered in the alleged accident.

13. Thirdly, the P3 form which would have indicated the nature of injuries suffered and degree of harm inflicted, which he said was issued to him by the police, was neither produced, nor relied upon in the case. Thus the appellant did not prove on the balance of probabilities that he was involved in a road traffic accident, or that, if he was so involved, he suffered any harm or injuries.

14. I thus find no merits in the appeal. I dismiss the appeal with costs to the respondents.

DELIVERED, SIGNED & DATED THIS 3RD DAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI.………………………………George DuluJudge