[2023] KEHC 24948 (KLR)

Oyoko v Hussein & another (Civil Appeal E59 of 2022) [2023] KEHC 24948 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24948 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E59 of 2022

SM Githinji, J

November 7, 2023

Between

Eunice Akinyi Oyoko

Appellant

and

Nuru Hussein

1st Respondent

David Mate Kiama

2nd Respondent

(Being an appeal from the decision of Honourable Stepehen Ngii delivered on 18. 05. 2022 in Senior Magistrate’s Court case No. 304 of 2019, Eunice Akinyi Oyoko vs Nuru Hussein & Anor)

Judgment

1. Before the trial court was a claim commenced by a plaint filed on October 26, 2020, in which the appellant herein (the plaintiff in the trial court) sued the respondents herein seeking general damages, special damages together with costs of the suit and interest thereon for a road traffic accident that occurred on December 8, 2017 where the plaintiff was a fare paying passenger in the 1st defendant’s motor vehicle registration No. xxxx along Mombasa-Nairobi Road at Bonje Area.

The Appeal 2. The appeal before this court is against the case in the lower court having found the 1st defendant 100% liable for the accident and the suit against the 2nd defendant dismissed. The judgment was delivered on May, 18, 2022. Aggrieved by the judgment, the appellant filed a memorandum of appeal on the 15th day of June, 2022. The grounds of appeal are: -1. That the Learned Trial Magistrate erred on both points of law and fact by misapprehension of evidence and failing to find that the 2nd Respondent was liable for the accident which occurred on 08. 12. 2017. 2.That the Learned Magistrate erred on both point of law and facts by failing to consider the principle of causation vis a vis the accident which occurred on 08. 12. 2017. 3.That the Learned Trial Magistrate erred in both law and fact by failing to appreciate that the Respondents did not tender any primary evidence.4. That the Learned Magistrate erred in both law and fact by failing to consider, analyse and appreciate the Appellant’s written submissions.5. That the Learned Magistrate erred in both law and fact in considering extraneous matters which had not been pleaded by the Respondent.6. That the Learned Magistrate erred in both law and fact in being biased against the appellant in exercise of his discretion by granting costs to the 2nd Respondent and ordering that the same be borne by the appellant.

3. The appellant sought to have the appeal allowed and the Judgment of the lower court against the 2nd Respondent on liability be set aside and substituted with judgment apportioning liability and awarding costs of the primary suit and the appeal to the appellant.

Summary of the Evidence 4. PW1 Eunice Akinyi Oyoko told the court that she recorded a statement dated 27. 9.2019 which was adopted as her evidence in chief. She further stated that on 8th December, 2017 she was travelling as a fare paying passenger in the 1st Defendant’s motor vehicle registration no. xxxx along Mombasa-Nairobi road at Bonje when the 1st defendant or his authorized driver, agent, servant and/or employee so negligently and carelessly over lapped in the middle pavement between the two roads; and the 2nd defendant or his authorized driver, agent and/or employee so negligently and carelessly controlled motor vehicle registration no. xxxx permitting it to hit the said motor vehicle on the left side as a result of which she sustained serious injuries, loss and damage.

5. It was her additional evidence that she blamed the driver of the motor vehicle she was travelling in as he was driving without regard of the safety of the passengers and other road users. According to her, he was overlapping on the middle trench separating the dual carriage way and that the other motor vehicle was coming from the opposite direction. She also told the court that had their motor vehicle stuck to its lane of travel, the accident would not have occurred.

6. On Cross examination by Mr. Okello, she informed the court she was in motor vehicle registration no. xxxx owned by Nuru Hussein and that the accident could have been avoided if their driver wasn’t over speeding. Finally, that she largely blamed the driver of motor vehicle xxxx.

7. This marked the close of the plaintiff’s case. On the 25th day of March, 2022, the 2nd defendant closed it case without calling any witnesses.

8. The appeal was heard by way of written submissions with the appellant filing her submissions on the 11th day of April, 2023 and the 2nd Respondent filing his on the 17th day of April, 2023.

Analysis and Determination 9. I have carefully considered the appeal herein, it’s grounds and the parties’ submissions. The court is alive to the fact that it did not hear the witnesses testify nor did it observe their demeanor and therefore should give due allowance for that. This court is also alive to the fact that an appeal is in a way a retrial and the court must therefore reconsider the evidence, evaluate it and draw its own independent conclusion. In Peter M. Kariuki v Attorney General (2014) eKLR the court held inter alia as follows:“We have also, as we are duty bound to do as a first appellate court to reconsider the evidence adduced before trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence.”

10. In my view, the main issue for determination is whether the trial court should have apportioned liability between the 1st and 2nd Respondents.

11. In this appeal, it is clear that the determination of the appeal revolves around the question of liability. The burden of proof was on the appellant to prove her case to the required standard in law. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

12. This is called the legal burden of proof. There is however evidential burden of proof which is captured in Sections 109 and 112 of the said Act as follows:“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”

13. In the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi &another (2005)1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

14. I have reviewed the record and particularly the evidence of PW1 who told the court that on the day of the accident she was travelling as a fare paying passenger in the 1st Defendant’s motor vehicle registration no. xxxx along Mombasa-Nairobi Road at Bonje when the 1st defendant or his authorized driver, agent, servant and/or employee so negligently and carelessly over lapped in the middle pavement between the two roads. What follows thereafter is a narration that the 2nd defendant carelessly controlled motor vehicle registration no. xxxx permitting it to hit the said motor vehicle on the left side as a result of which she sustained serious injuries, loss and damage.

15. Her further testimony was that the motor vehicle being driven by the 2nd defendant was coming from the opposite direction and upon cross examination by counsel for the 2nd defendant, she confirmed that the motor vehicle she was travelling in was indeed overlapping and that the accident could have been avoided if their driver wasn’t over speeding. Finally, that she largely blamed the driver of motor vehicle xxxx which is the motor vehicle owned by the 1st defendant, the motor vehicle she was travelling in. In my view, it is not clear from both the pleadings and the testimony of PW1 how the 2nd defendant caused the accident. I find it hard to blame the 2nd defendant who was coming from the opposite direction and was probably keeping to his rightful lane, and ignore the fact the 1st defendant’s driver was wrongly overlapping on the middle pavement separating the two section of the dual carriage, and probably encroached on the road meant for oncoming motor vehicles.

16. Among the grounds of appeal that the appellant has alluded to was that the trial magistrate erred by failing to appreciate that the Respondents did not tender any primary evidence. I am of the finding that the fact that the 2nd defendant did not call evidence does not automatically infer that they were negligent and ought to be blamed for the accident. I am guided by the Court of Appeal’s position in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi &another (2014) eKLR which espouses the correct legal position that:“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”

17. For the above reasons, I find and hold that the 1st respondent’s driver was wholly liable for the accident and therefore the trial magistrate did not err in so finding. The plaintiff proved that the bodily injuries suffered and the consequential losses were a direct consequence of the 1st defendant’s negligent actions. I uphold that finding and consequently dismiss the appeal with costs to the Respondents.

JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 7TH DAY OF NOVEMBER, 2023. ...................................S.M.GITHINJIJUDGEIn the Presence of; -1. Miss Osino for the Appellant2. Firm of Okello Kinyanjui are for the Respondent