[2023] KEHC 24336 (KLR)

Raini & another (Suing as the Administrators and/or Legal Representatives of the Estate of Ben Masankwa Raini-Deceased) v Oundu (Civil Appeal E066 of 2023) [2023] KEHC 24336 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24336 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E066 of 2023

KW Kiarie, J

October 24, 2023

Between

Purity Mokeira Raini

1st Appellant

Dennis Moruri

2nd Appellant

Suing as the Administrators and/or Legal Representatives of the Estate of Ben Masankwa Raini-Deceased

and

Salome Kemunto Oundu

Respondent

(From the Judgment and Decree in Kilifi Senior Principal Magistrate’s Court Civil Case No.E242 of 2021 by Hon. S.D Sitati- Senior Resident Magistrate)

Judgment

1. Purity Mokeira Raini and Dennis Moruri, the appellants herein, were the plaintiffs in Kilifi Senior Principal Magistrate’s Civil Case number E242 of 2021. This was a claim that arose from a road traffic accident that involved motor cycle registration number KMEP 356L on which the deceased was riding as a pillion passenger. The motorcycle veered off the road and hit the unidentified motor vehicle. The deceased was fatally injured. The learned trial magistrate delivered judgment dated 8th May, 2023. She made a finding that the appellants did not prove that the respondent was to blame for the accident. The claim was dismissed with costs.

2. The appellants were aggrieved by the said judgment and filed this appeal through the firm of Tsofwa Mweni Advocates. They raised the following grounds of appeal:a.That the learned trial magistrate grossly misdirected himself in treating the evidence and submissions on liability before him superficially and consequently coming to an erroneous conclusion on the same.b.That the learned trial magistrate misdirected himself in ignoring the principles applicable in awarding liabilities and the relevant authorities on liabilities cited in the written submissions presented and filed by the appellant.c.That the learned trial magistrate proceeded on wrong principles when assessing the liabilities to be awarded to the respondent and failed to apply precedents and tenets of law applicable.d.That the learned trial magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered on liabilities and thereby arrived at a decision unsustainable in law.

3. The respondent was represented by the firm of Kioko, Munyithya, Ngugi & Company Advocates. He opposed the appeal and contended that the appeal lacked merit.

4. This court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. The appeal is on liability.

6. According to the evidence of PC David Awuor Wafula (PW1) the motorcycle KMEP 356L was hit on its lane from the front by an unknown motor vehicle. The rider and the two pillion passengers died on the spot. During reexamination, he testified that the motorcyclist was also to blame. He however did not say why he was to blame.

7. The respondent did not call any evidence.

8. Sections 107 and 109 of the Evidence Act Cap 80 Laws of Kenya provide:107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.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 that fact shall lie on any particular person.

10. In the case of East Produce Kenya Limited v Christopher Astiado Osiro in Civil Appeal No. 43/01 the court held:“It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku v Kenya Cargo Hauling Services Ltd 1991 where it was held that“there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence."It is not enough to say that the motorcyclist was also to blame without adducing evidence of his blameworthiness.

11. In the instant case, I find that the appellants did not prove fault on the part of the motorcyclist. The learned trial magistrate, therefore, arrived at the correct conclusion on liability.

12. I accordingly find that the appeal lacks merit and the same is dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 24TH DAY OF OCTOBER 2023KIARIE WAWERU KIARIEJUDGE