[2023] KEHC 26525 (KLR)

Riara Group of Schools Limited v Africa Geothermal International (Kenya) Ltd (Civil Appeal E482 of 2021) [2023] KEHC 26525 (KLR) (Civ) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26525 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E482 of 2021

DAS Majanja, J

December 8, 2023

Between

Riara Group Of Schools Limited

Appellant

and

Africa Geothermal International (Kenya) Ltd

Respondent

(Being an appeal from the Judgment and Decree of Hon. J.P Omollo RM/Adjudicator dated 15th July 2021 at the Small Claims Court at Nairobi in SCCC/199 /2012 previously Milimani CMCC No. 5212 of 2019)

Judgment

1. This is a material damage claim that was filed by the appellant as a result of a road traffic accident that occurred on 21. 06. 2017. According to the plaint dated July 1, 2019, the appellant’s driver of its motor vehicle KCK 219F was lawfully driving along Airport road, when the said motor vehicle was hit from behind by Motor Vehicle KBL 300Y Toyota Prado (“the Prado”). That the Prado had been hit by the respondent’s lorry registration number KCG 283 S. The appellant claimed Kshs. 682,916. 00 being expenses incurred for repair of the vehicle. The trial court found that the claim for damages was supported by receipts and documentary evidence and assessed damages as pleaded and proved at Kshs. 682,916. 00 but was not persuaded that the appellant had proved that the respondent was liable for causing the accident on a balance of probabilities. The trial court dismissed the suit thus precipitating this appeal.

2. The appellant set out its five grounds of appeal in the memorandum of appeal dated August 5, 2021. The thrust of the appeal is that the trial court erred in law and if fact when it held that the appellant had failed to prove its case against the respondent on a balance of probabilities. The appeal was canvassed by way of written submissions which I have considered, together with the authorities attached.

3. This is an appeal from the Small Claims Court. Under section 38 of the Small Claims Court Act (“SCCA”), the jurisdiction of this court is limited to matters of law. This means that this court can only determine whether the evidence on records supports the findings of the adjudicator.

4. In the judgment, the adjudicator observed that it was not disputed that the respondent’s vehicle is not the one which hit the appellant’s vehicle. It was alleged that the respondent’s vehicle was hit by the Prado which then hit the appellant’s vehicle. Anthony Gachagwi (PW 1) testified that he did not see the respondent’s vehicle hit the Prado. The trial court thus observed that there was no eye witness who could link the respondent’s vehicle to the accident therefore the court could not make a finding based on presumptions. The court further observed that whereas the accident involved 3 vehicles, the motor vehicle KBL 300Y was not included in the police abstract.

5. PW 1 recalled that he was driving slowly along North Airport Road when he was hit by the Prado. That when he stopped to investigate the damage of the vehicle he was driving, he discovered that the Prado had been hit by another motor vehicle registration number KCG 283S. It is thus true that he did not see what transpired between motor vehicle KCG 283 S and motor vehicle KBL 300Y. In his testimony during the hearing of the case, he stated that a police officer came at the scene and instructed them to park their vehicles aside. His testimony was that it was also the officer who informed him that the Prado had been hit by motor vehicle KCG 283S. The name of the officer is not provided, there is no investigation report by the said officer and he/she was not called as a witness. Suffice it to note that there is no mention of a police officer in the written statement.

6. The accident was reported the following day on June 22, 2017 and the police abstract indicated that it was a hit and run whereby motor vehicle KCG 282 S was to blame. On the strength of the police abstract, the appellant submitted that the respondent ought to be held liable. A police abstract, it has been reiterated time and again, can only help in proving that an accident occurred, and cannot be used to impute liability. In Kennedy Nyangoya v Bash Hauliers [2016] eKLR the court observed that, “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.”

7. The question for the court is whether there was sufficient evidence to prove the case against the Respondent. Although under section 32 of the SCCA, the Small Claims Court is not bound wholly by the rules of evidence, the general principle is that the person who alleges must prove as expressed by the Court of Appeal in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR as follows:[S]ection 107 of the Evidence Act provides that “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 exists.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.

8. The case a claimant is required to prove is dependent on the cause of action. In an action negligence, such as the case at hand, causation is an important element of proof. Such proof will depend on the evidence available and the fact that there was no eye witness does not diminish the proof as the evidence of the event may be direct or circumstantial. As the Court of Appeal stated in Abbay Abubakar Haji v Marain Agencies Company &another [1984] 4 KCA 53, “There can be no doubt that it is the clear duty of a court to arrive at a finding on the facts, however difficult the circumstances may be, if that is at all possible. The court cannot, as Denning LJ said, wash its hands of the case and shrink from arriving at a conclusion simply because the evidence is deficient in some respects.” (see also Susan Kanini Mwangangi &another v Patrick Mbithi Kavita [2019]eKLR and EWO suing as the next friend of minor COW v Chairman Board of Governors Agoro Yombe Secondary School [2018] eKLR).

9. What then was the totality of the evidence? Apart from PW 1 who told the court that he did not see the accident, the Respondent’s witness (DW 1) denied ever being at the scene of the accident. He stated that on the material day when the accident was alleged to have occurred, motor vehicle KCG 283 S was parked at the respondent’s premises. Given that there was no direct impact between the appellant’s and respondent’s vehicles, the Appellant was required to establish the causal link. PW 1’s testimony was light on the position of the vehicles, where KCG 283S hit the Prado so as to establish the point of impact and the position on the road.

10. As long as the appellant could prove that the respondent was the cause of the damage, it was not necessary to join the owner/driver of motor vehicle KBL 300Y whose driver could have shed more light on how the accident occurred. From the totality of the evidence, I cannot say that the adjudicator came to a decision that was not supported by the evidence.

11. The appeal is dismissed. The appellant shall pay costs of Kshs. 20,000. 00.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. D. S. MAJANJAJUDGEMr Kisinga instructed by Mohamed Madhani and Company Advocates for the Appellant.Mr Kirui instructed by Muchoki Kang’ata, Njenga and Company Advocates for the Respondent.