https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8734

Kameto v Mattan Constactors Ltd (Civil Appeal E013 of 2024) [2026] KEHC 8734 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8734 (KLR) Republic of Kenya In the High Court at Kabarnet Civil Appeal E013 of 2024 TM Matheka, J June 12, 2026 Between Samuel Chepchieng Kameto Appellant and Mattan Constactors Ltd Respondent (An appeal from the original conviction and sentencing of HCCC. No.10 of 2020 by Hon. C.R.T. Ateya – Principal Magistrate – Kabarnet) Judgment 1.By a plaint dated 17/8/2020. The plaintiff/Applicant Samuel Chepchieng Kameto sued Mattan Constructors LTD Defendant/Respondent for. General damages Special damages of Ksh.436,500/=. Costs of the suit, and any other relief the court may think just and expedient. 2.According to the plaint, the defendant was the lawful beneficial owner of Motor Vehicle registration number KBS 323T and that on 6/5/2019 the plaintiff was a lawful passenger in the said Motor vehicle which was driven by the defendant’s (driver, agent, servant) carelessly and negligently. 3.That the Motor vehicle lost control, veered off the road, as a result of which the plaintiff sustained severe injuries, suffered loss and damage for which he sought both general and special damages plus costs and interest. 4.The plaintiff blamed the defendant for the accidents and set down the particulars of negligence on the part of the defendant; the plaintiff averred that the doctrine of res ipsa loquitur applied to the accident. 5.The plaintiff also set out the particulars of injuries – to wit:-i.Compound fracture of the lower 1/3 of the right tibia and fibulaii.Blunt injury to the anterior chest wall leading to soft tissue injuriesiii.Soft tissue injuries of the lumbar- sacral region of the backiv.Blunt injury to both shoulder joints leading to soft tissue injuriesv.Sublaxed left middle finger at inter phalangeal joint 6.The defendant filed its defence date 31/1/2022, denied all the allegations in the plaint and put the plaintiff to strict proof thereof. 7.The defendant, without prejudice contended that if any accident occurred then the plaintiff was to blame. The defendant set out its views of the plaintiff’s negligence, and denied that the doctrine of res ipsa loquitor was applicable in this case. The defendant sought that the suit be dismissed. 8.In the judgement delivered on the 13/11/2024 by the Hon. C.R.T ATEYA. The plaintiff’s suit was dismissed with no orders as to costs. 9.Aggrieved the Plaintiff filed this appeal vide memorandum of appeal dated 6/12/2024 on the grounds;1.That the learned trial Magistrate erred in law and fact in failing to award the appellant general and special damages despite overwhelming evidence at the trial of the suit.2.That the learned trial Magistrate erred in law and fact in failing or ignoring to consider the submissions of the appellant on liability and quantum.3.That the learned trial Magistrate erred in law and fact in failing to appreciate the respondent's injuries thereby failing to award general damages.4.That the learned trial Magistrate erred in law in failing to consider the appellant had established liability against the respondent for the accident.5.That the learned trial Magistrate erred in law and fact in applying wrong principles while assessing liability. 10.The record shows that the respondent had filed a Preliminary Objection in the appeal – but on 20/4/2026 the same was withdrawn. 11.Parties through counsel Kipkulei for respondent -Kairu for appellant told the court they had filed written statements on the appeal. This was pursuant to directions given on 9/10/2025 for the appeal to proceed by way of written submissions. Counsel for the appellant told the court that they would rely on the submissions they had filed with respect to the Preliminary Objection and the appeal. I have perused the entire records, I have checked on CTS, I have only seen the appellant’s submissions to the Preliminary Objection. The trial before the subordinate court: 12.PW1 was Doctor Obed Omuyoma, he produced the medical report for the plaintiff dated 11/8/2020. 13.PW2 Arthur Kihara Clinical Assistant at A.I.C Cure international Hospital, in charge medical records-he produced the discharge summary for the plaintiff dated 6/1/2020. And 23/11/2023. He also produced the receipts for Ksh 233, 950 and an invoice.On that he said the invoice is prepared before a patient is discharged as an estimate of what is to be paid. 14.PW3 Number 51599 Senior Sergeant Amisi Mdoe was the officer in-charge Kabartonjo Police Station as at 6/5/2019. He testified that he received a report of the Road Traffic Accident at 11am. It was booked on the OB 3/6/5/2019 then he proceeded to the scene with another officer. He told the court that he found motor vehicle registration number KBS 323T Tipper which had overturned. He said that it was carrying murram for construction. He said the driver‘s name was one Joseph, that there was a passenger by name Samuel Chepchieng. That both of them had been rushed to Baringo referral hospital with injuries. He said they followed them there and found Samuel Chepchieng who had fractured left leg. He said it was self-involving accident. They issued Chepchieng with Police Abstract and P3. He produced the abstract, P3, and OB entry. 15.On cross-examination he said that Road Traffic Accident was out of human error. He said he was not aware what job the plaintiff did at the Defendants Company. That he was a casual, however he did not have any document to support his employment. He said the motor vehicle had an extensively damaged cabin which was evidence that it had been driven at high speed. He said that he visited the plaintiff in hospital and that his medical records would prove injury. He said he was told the plaintiff worked at the company. 16.PW4 Dominic Kiprotich from Baringo County Referral hospital – Medical Records Officer – testified that records showed that plaintiff was attended to on 6/5/2019 – discharged on 19/10/2019. He said left leg had fracture – x-ray was done, he was discharged when he was fairly okay. He stated that the records showed entry that on 6/5/2019 the plaintiff was attended to. 17.PW5 was the plaintiff, Samuel Chepchieng Kameto. He adopted his witness statements dated 17/08/2020. Produced copy of NTSA Search, Receipt and urged the court to allow his claim. On cross examination he told the court that he was at the time employed by the defendant as a Trip Checker, had worked for three months, that when he was discharged the company had shutdown. He said he worked for the defendant with many people but did not call any of them as his witnesses. He said the driver was one Jose from Kabartonjo. He said he had not brought him as his witness. He said he was in hospital, was discharged on 10/10/2019. He did not know when the company had shut down. He said he was paid cash. He said he left the records in the motor vehicle. He said at the time of the Road Traffic Accident he sat at the front of the motor vehicle. He said he had not healed from the injuries. He said he was paid weekly, that there was a book he used to sign and it was in the motor vehicle. That the driver was over speeding. He denied that he was seated on the rear side. The plaintiff closed his case. The Defence: 18.DW1 Najib Rashid Director Mattan Constructors told the court he engaged a lawyer when auctioneers sent him a letter. He denied that the plaintiff was an employee of his company. He said he was not aware of any accident as alleged by the plaintiff and no one visited his office -/company. He said there was a road construction in that area in 2019. The contract ended in 2020, the motor vehicle KBS 323T belonged to the company. He said he did not have the records for driver and turn boy for 6/5/2019. He said he was not aware of any accident, he said he had not alleged any fraud. Defence case was closed. 19.Parties filed written submissions on quantum and liability. On liability – plaintiff urged the court to find the defendant 100% liable on res ipsa loquitor. 20.On quantum- plaintiff sought the sum Ksh.3,000,000/= General Damages and Special Damages of Ksh.436,500/=. On the part of the defendant, it was submitted that he did not prove that he was employed by the Defendant. That the injuries were doubtful and that witnesses were compromised. It was submitted that the special damages were exaggerated. The defendant urged the court to find contributory negligence. 21.In the judgement of the trial court, the trial court found that the plaintiff had not established that he was an employee of the defendant, or that he was involved in the alleged Accident involving the defendant’s motor vehicle and the Court dismissed the suit. Issues For Determination On Appeal. 22.I have carefully set down what transpired in the lower court because the duty of this court as an appellate court is to analyse the evidence before the trial court and draw my own conclusions alive to the fact that I never heard/saw the witnesses testifying. 23.I have also considered the submissions by parties on the appeal. 24.For the appellant I only have the submissions by filed with respect to Preliminary Objection. 25.For the respondent, here are submissions on the appeal. Submissions 26.For the appellant the submissions were on the Preliminary Objection that was withdrawn. I went through them to see whether they had any relevance to the appeal. This is because counsel had told the court that they would be relying on the submissions on the P.O and the appeal. 27.I noted that the P.O was on the issue whether or not the appellant was an employee of the defendant. The appellant’s counsel argued that that issue as to whether the appellant was an employee of the defendant was a fact that would require investigation of the court because the plaintiff averred, the defendant contended and the court would be required to determine the issue. 28.For the respondent, it was submitted that the appellant had not proved negligence on the part of the defendant. He had not proved was an employee of the defendant. In addition, that the evidence he produced on medical evidence gave different injuries, presented to the two separate facilities he allegedly went for treatment. 29.It was submitted that the Investigating Officer had failed to place the defendants motor vehicle at the scene of accident, produced no sketch plan or any evidence that indeed the said motor vehicle was involved in a Road Traffic Accident. 30.On the issue of res ipsa loquitor the respondent argued that it was not applicable and cited Sally Kibii and Another Vs Francis Ogare [2012] eKLR on the rendition of Ibrahim J. (as he then was) as follows:“To my understanding, "res ipsa loquitor" would apply where the subject matter is entirely under the control of one party and something happens while under the control of that party, which would not in the ordinary course of things happen without negligence. See Bikwatirizo v Railway Corporation [1971] EA 82. To successfully apply this doctrine, there must be proof of facts that are consistent with negligence on the part of the Respondent as against any other cause. This is a case of two cars colliding. What facts have been proved by the Appellant to presume negligence on the part of the Respondent as against the other vehicle? Can I safely presume that the mere fact that the two cars being KAK 746 J and KAG 331 K collided, negligence was on the part of the Respondent's case and not the other? The Appellant must prove facts which give rise to what may be called the res ipsa loquitor situation. There cannot simply be an assumption in the Appellant's case in this case. If the deceased was in a self-involving accident as against a collision, then perhaps, such a presumption can be made against the owner of the car. With respect, I disagree with the appellant's counsel that the burden of proof of occurrence of an accident shifted to the other side. I hold the view, that the Respondent is only enjoined to rebut the presumption of res ipsa loquitor after the Appellant has established a prima facie case by relying on the facts of an accident. It is after this that the court is called upon to evaluate the evidence and find if the inference of negligence should be drawn against the Respondent." 31.On the injuries alleged to have been sustained. It was argued that the injuries included fracture of the left leg, injury of the shoulder and the broken finger. That the doctor Omuyoma’s report stated that he sustained compound fracture of the lower 1/3 right tibia and fibula. There were no x-rays or x-ray reports produced to support the evidence of alleged fractures 32.It was submitted that the documents from A.I.C Cure international spoke about right Tibia fracture yet treatment at Baringo Referral Hospital was for left Tibia. Further that in the P3 – O.B. entry for the accident is 05/06/05/2020, yet the Police Abstract entry is 05/06/05/2019. 33.It was also pointed out that the evidence of the appellant and police officer was different. The police officer spoke of going to the hospital same day of the road traffic accident. The appellant said he went there after 3 days. 34.Arguing that the appellant did not prove the case on a balance of probabilities, the respondent relied on William Kabogo Gitau VS George Thuo and 2 others [2010] eKLR on the meaning of balance of probabilities where the court stated.In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case is more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51%, as opposed to 49% of the opposing party, is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred. 35.That in any event, if the applicant was an employee of the Defendant which was denied – then he was to blame for the accident, and he ought to have followed the set down procedure for work Injuries and Benefits Act. Analysis And Determination: 36.From the foregoing the only issue for determination is whether the appellant established his case before the subordinate court; This was: Whether he was an employee of the defendant, Whether there was a road traffic accident, Whether he sustained any injuries Whether he suffered loss and damage Whether he was entitled to both special damages and general damages as claimed. 37.It is not in doubt that he who alleges must prove as required by sections that was 107 and 108 of the Evidence Act. 38.Further In Eunice Wayua Munyao v Mutilu Beatrice and 3 Others [2017] eKLR, the court quoted the East Produce (K) Limited v Christopher Astiado Osiro in civil Appeal No. 43 of 2001 where it was held as follows: -“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 a 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. 39.On whether there was an accident I also looked at the submissions of the plaintiff/appellant in the subordinate court. It was submitted that the DW1 denied the occurrence of an accident of the 6th May 2021, but not on 6th May 2019.the plaintiff made reference to the defendant’s statement of defence dated 19th January 2023. The said statement was not in the record of appeal and I found it in the lower court file. I noted that the Dw1 denied the occurrence of an accident on 6th May 2021. In the proceedings during the hearing the defendant confirmed on cross examination that the issue before court was the alleged RTA of 6th May 2019. He confirmed that he did not have the records of the driver or turn boy for the material date. He adopted his statement and his defence. The record shows that he confirmed that he was not aware of the RTA claimed by the plaintiff appellant. 40.The DW1 was faulted by the plaintiff for not reporting any fraud regarding this claim. 41.In addition it was argued that he ought to have produced his driver and turn boy for that day , The trial court was urged to consider that the matter was undefended for that reason and relied on Autar Singh Bahra & Another vs Raju Govind HCC 548 of 1988 (UR) where the court held that it was not enough for the defendant to just file a defence and counter claim, that was not evidence and the failure by the defendant to call any witness meant that the defence and counter claim were unsubstantiated . However, that is not the same in this case as the record shows that the defendant called DW1. 42.The defendant was also faulted by the plaintiff for not calling eye witnesses to disprove that indeed an accident occurred as claimed by the plaintiff. However, the plaintiff had to prove that an accident occurred as claimed in the plaint. 43.The plaintiff claimed an RTA occurred on 6th May 2019. He produced police abstract as evidence. 44.The abstract bears the date 6 May 2020. Speaks about OB entry 3 of 6th May 2019 as the date of the accident. It names the appellant as the passenger who was injured and also as the witness. There are particulars of the m/vehicle, there are no particulars of the insurance except the name of the Insurance Company. The police officer who visits the scene would obtain all the particulars of the insurance policy found on the m/vehicle, and no particulars of the driver despite the fact that the officer told the court that the driver was also rushed to the same hospital but no particulars were provided in the police abstract or by the plaintiff appellant. 45.It is the plaintiff appellant who alleged that he was with a driver by name Jose. It was upon him to establish that fact before expecting the defendant to prove otherwise, considering the defence put the plaintiff to strict proof of all the averments. 46.Other than the Police Abstract, the OB entry in the P# is 5/6/5/2020. And says date of offence is 6th May 2019. So, was the accident reported the same day of a year later? The P3 entry is also confusing because the Medical reference for the treatment of the appellant is 56249 /2020, yet the one in the one in the discharge summary speaks about 2019? And the differing OB entries – There is no other evidence that a Road Traffic Accident happened. The Police Abstract does not bear the details of the Driver despite the fact that the accident is said to have been self-involving and that he had sustained injuries. 47.Where did the motor vehicle go – after the Road Traffic Accident – was it towed to the Police Station? Despite the testimony of the police officer there is no evidence as to what happened to the m/v after the accident. He said it was extensively damaged. How did leave the scene? Was it towed to the police station? Did the owner come for it? No way any of these would have happened without the involvement of the traffic officers. This prat of the plaintiff’s case leaves a gap that he ought not to have expected the defendant to fill in as that is why he called the police officer to testify as to the circumstances of the accidents and the outcome of the police investigation if any. 48.The plaintiff was not placed at the scene of the accident by any witness. He was not placed in the motor vehicle by any evidence other than his averments which were denied. Not even the e police officer, not a single eye witness. For instance, there is no evidence as to how he got to the hospital with such serious injuries. His witness the driver did not testify and there is no evidence that the plaintiff sought that any witness be summoned from the defendant to testify/produce records as to his employment or to any of the facts he averred with regard to the defendant. 49.The fact that despite the defendant’s denial of any relationship with the plaintiff , and the accident , the plaintiff did not , during discovery ask for the production of any records by the defendant, the court can only draw the conclusion that these did not exist and cannot be heard to blame the defendant for not producing the same/any. Hence, I agree with the finding of the subordinate court that the plaintiff did not establish the basis for his claim, that he was an employee of the defendant, that he was travelling in the defendant’s m/v on the material date and that the m/v was in an road traffic accident. 50.The plaintiff pleaded injuries in the plaint. The main injury was fracture of his tibia fibula. The court was confronted with the issue as to whether it was the right or the left tibia fibula. 51.In the plaint he says compound fracture of the lower 1/3 of the RIGHT tibia fibula. His medical records gave conflicting evidence with regard to the injury. 52.For Baringo Referral Hospital he was in hospital for 4 months: date of Accident – 6/5/19: Date of Discharge – 19/10/2019 : he was treated for Fracture of LEFT Leg ; H/Number 56249/19 Chepchieng Samuel 53.A document shows that Samuel Chepchieng on 21/10/2019 is admitted at AIC Cure International Hospital and discharged on 9/11/2019. It does not state which limb the procedure is for but it says non-union ‘tibia’ 54.Another document shows that on 31/10/2019 he is admitted in A.I.C Cure International for procedures on Right Tibia non-union. Discharge date appears as 6/1/2020. 55.The P3 completed on 30th July 2020 states that he sustained injury to his right leg. 56.The medical report by Dr. Omuyoma states that he referred to the three documents above and wrote a medical report that the appellant had sustained injury on lower 1/3 right tibia and fibula. 57.There was no explanation by the plaintiff for these discrepancies in the injuries whether it was the right or left leg that had sustained fracture; neither was there an explanation whether it was 2020 or 2019 and why there was no other witness to the evidence other than himself. 58.The plaintiff/ appellant relied on the doctrine of res ipsa loquitor but did not establish that an accident took place as he stated. He stated that the accident was self-involving, the police officer stated that the cabin was completely destroyed as proof that the m/v was driven at high speed. Those statements were not corroborated by any evidence for instance a m/v inspection report that would have indicated the damages on the m/vehicle. Neither was there a sketch plan of the scene. 59.This doctrine would have been applicable if the plaintiff had established his case. 60.From the foregoing analysis I find that the plaintiff did not prove – on a balance of probabilities that the Road Traffic Accident happened as alleged. The discrepancies on injuries were not resolved – and he did not establish the alleged relationship with the defendant in the circumstances the judgment of the subordinate court stands. 61.The appeal is dismissed with costs. JUDGMENT DATED SIGNED AND DELIVERED VIA CTS AT KABARNET ON 12TH JUNE 2026.MUMBUA .T MATHEKAJUDGEKairo for the appellant.Kipkulei for respondent.CA Momanyi/Gladys.