[2017] KEHC 1380 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 171 OF 2012

PETER CHEGE MWANGI..........................................................................APPELLANT

-V E R S U S –

KAMWELI MWANGANGI T/A KAMWELI GENERAL STORES ........ RESPONDENT

(Being an appeal from the judgement of Hon. Mr. A. K. Ndungu (SPM) in Civil Suit Number CMCC 5084 OF 2007 dated 1st March 2012

JUDGEMENT

1. This judgement is the result of the appeal filed against the judgment and decree issued on 1st March 2012 by Hon. Ndungu, learned Senior Principal Magistrate. The appellant filed a suit before the Chief Magistrate’s Court, Nairobi against Kamweli Mwangangi T/A Kamweli General Stores, the respondent herein, claiming for ksh.159,748/= as special damages as a result of a road traffic accident involving motor vehicle registration no. KVT 143 owned by the respondent and KAT 671M owned by the appellant. The learned Senior Principal Magistrate heard the suit and eventually had the same dismissed. Being dissatisfied the appellant preferred this appeal.

2. On appeal, the appellant put forward the following grounds in his memorandum:

1. The learned magistrate erred in fact in failing to find that the plaintiff had proved his case against the defendant on a balance of probability and dismissing the plaintiff’s case having regard to the evidence on record.

2. The Learned magistrate erred in law and fact in failing to take into account and or appraising and or properly appraising the evidence before him and thus ruling against the weight of evidence and hence arrived at a bad decision.

4. The learned magistrate erred in fact in holding that the plaintiff’s driver was liable for the cause of the accident and failing to properly analyse the damage to the plaintiff’s vehicle and the point of impact vis-a-vis the defendant’s version of how the accident happened and thus finding against the weight of evidence before the court.

4. The learned magistrate erred in law and fact in failing to consider whether or not the defence witness 2 (DW2) purported conductor of the defendant at the material time was a truthful witness or not before relying on his evidence and finding it to collaborate the evidence of the defendant’s driver despite the witness’s contradictions and evasive evidence on record and the plaintiff’s submissions that the witness was unlikely to have been at the scene of accident at the material time.

3. When the appeal came up for hearing, learned counsels recorded a consent order to have the appeal disposed of by written submissions.

4. I have re-evaluated the case that was before the trial court. I have further considered the rival written submission. The appellant in his testimony told the trial magistrate that he was the owner of motor vehicle registration no. KAT 617M which was involved in a road traffic accident along Outer ring – Nairobi with motor vehicle registration KVT 143 owned by the respondent. The appellant also told the trial court that his motor vehicle was damaged as a result of which he incurred the losses specified in the plaint. The appellant also summoned the evidence of P. C. Ndambuki from Embakasi Police Station who produced the police abstract form showing that the accident took place and that the driver of motor vehicle registration no. KVT 143 was said to blame for the accident. John Irungu (PW3), the appellant’s then driver was also summoned to testify. It is the evidence of PW3, that he was slowing down to stop and then enter a bus stage when the vehicle was hit from the rear by the respondent’s motor vehicle registration KVT 143 thus damaging the appellant’s vehicle at the edge of the rear side. Moses Mwangi (PW4) a motor vehicle loss assessor was also summoned to present his report.

5. The respondent summoned two witnesses to testify in support of its defence. Isaac Kitheka Muoki (DW1) the respondent’s driver of motor vehicle registration no. KVT 143 told the trial court that he was overtaken by motor vehicle registration no. KAT 617M and suddenly returned to the appellant’s path, parked, leaving the rear side of the vehicle on the road. DW1 stated that he tried to swerve to evade hitting the motor vehicle but there were other oncoming vehicles forcing it to hit on the right side of the matatu at the corner. The evidence of DW2 were similar to that of DW1. When faced with the above competing evidence, the learned Senior Principal Magistrate formed the opinion that the evidence of DW1 and DW2 were more believable that that of the appellant’s witnesses i.e PW1 – PW4.

6. Though the appellant put forward a total of four grounds of appeal, those grounds are so interrelated that they can only be determined together. The question is whether or not the appellant had established his case on a balance of probabilities and whether or not the trial Senior Principal Magistrate properly exercised his discretion in dismissing the suit. PW3, the driver of motor vehicle registration no. KAT 617M told the trial court that he slowed down to stop since a passenger was alighting at the stage and before entering the stage someone hit his motor vehicle from the rear on the right side. On the other hand DW1 stated that it was around 7. 30pm, it was drizzling, dark and lights were on when motor vehicle registration no. KAT 617M overtook him and cut ahead of him into the stage. DW1 further stated that KAT 617M did not fully get to the stage as part of its rear was left on the road. DW1 stated that he braked forcing his motor vehicle to skid since it was wet. He also said that since there were oncoming vehicles, he could not swerve so much hence he hit the rear of KAT 617M. John Malombe (DW2) stated that a motor vehicle overtook them and then suddenly returned on their path leaving part of its rear on the road thus causing the accident. I have on my part re-evaluated the evidence and I am convinced that the learned Senior Principal Magistrate properly analysed the evidence and came to the correct conclusion that the evidence presented by the respondent were consistent and credible. I am too, satisfied that the respondent presented evidence which appeared more credible than that presented by the appellant. The suit was therefore properly dismissed.

7. In the end, I find no merit in the appeal, it is dismissed in its entirety with costs to the respondent.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

................................................ for the Respondent