https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9665

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NUMBER E032 OF 2023** **SIMON MWAURA KARIUKI ------------------------------------- APPELLANT** **VERSUS** **CHARLES OKOTH ------------------------------------------ 1ST RESPONDENT** **DAVID OKOTH ---------------------------------------------- 2ND RESPONDENT** **(*Being an Appeal from Decree of Chief Magistrate’s Court at Nakuru (Hon. Priscah Nyotah (SRM) arising from Judgment delivered on 20th January, 2023.)*** **JUDGMENT** **Background to the Appeal.** 1. The Appellant challenges the lower court’s decision dated 20/1/2023 on the issue of liability only. The background to the Appeal is that the Appellant sued the Respondents jointly and severally for general damages, special damages, costs and interest following injuries he sustained in a road traffic accident involving the Respondents’ motor vehicle registration number KAT 952 B (Toyota Matatu). 2. The Respondents filed defence traversing all the material particulars of the claim, and the matter thereafter set down hearing after pre-trial conferences. As is pertinent to this Appeal, the Appellant testified underscoring his averments in the suit. He told the court that on 22/1/2020 he was a pedestrian along Oginga Odinga - Kenyatta Avenue Road at Odeon area, Nakuru Town. The Respondents' motor vehicle unlawfully drove into a stage designated for *Tuk Tuk* drivers to pick up a passenger, veered off the road and knocked down the Appellant before driving on. The Appellant blamed the motor vehicle driver for negligently driving to the Tuk Tuk stage and hit him off the road. The motor vehicle was said to be waiting for passengers at the Tuk Tuk stage about 4-5 metres ahead of the Appellant when the driver panicked after seeing "Council askaris" and drove off hitting the Appellant near the Tuk Tuk stage with its sliding door. The Appellant further stated that one Peter Mbugua Mungai (PW2) was near the road at the time. 3. PW2 told the court that he witnessed the accident and fully confirmed the Appellant's evidence. The witness stated that he was with the Appellant when the Respondents’ vehicle got off the road and hit the Appellant. 4. PW3 was a Police Officer based at Nakuru Police Station. He stated that the accident was reported to the station by the Appellant. When shown a police abstract report dated 30/1/2020 filed by the Respondents, the witness confirmed that the document was signed by the Officer in Charge of Nakuru Police Station then (Cpl Githinji) and that it bears the Station's official stamp. PW3 was allowed to tender the abstract report in evidence. It indicates that a pedestrian was to blame for the incident. 5. The Respondents' vehicle driver at the material time testified for the defence as DW1. He told the court that on the material date at around 10:00 pm, he was driving at Odeon area, Nakuru, and joined the main Nakuru - Eldoret road. A pedestrian stopped him complaining that the vehicle had hit him. This shocked him and passengers in the vehicle. The witness continued to state that he drove on thinking that the pedestrian was joking, only to be summoned by police officers later over the purported accident. The Respondents' driver denied involvement in any such accident. 6. Further telling the court that he knew the Appellant as a friend and fellow driver, DW1 related that he had passed him at the Tuk Tuk stage before he confronted him for allegedly hitting him. Those at the scene are said to have established that the Appellant was not hit and left the scene. DW1 accused the Appellant of lying, adding that the police confirmed that he was never injured. 7. DW2 is a Police Officer who produced the police abstract dated 30/1/2020 alluded to hereinabove. The abstract had been issued to the Appellant after reporting the accident. The witness confirmed that the accident did occur and the Appellant was slightly injured and went for medical attention. DW2 further stated that no reason was given for the Appellant's blameworthiness. He was not the accident's Investigating Officer. 8. In her judgment on the the issue of liability for the accident, the learned trial magistrate wondered how the vehicle’s sliding door could have hit the Appellant who was 4-5 metres away from the vehicle, unless it was claimed that the door "dislodged and flew out". The court reasoned that 4-5 metres is not a short distance and that the Appellant could only have been hit by the vehicle's door if he was leaning on the vehicle. The trial court further observed; **"...... Taking PW2's account, the vehicle was 4-5 metres ahead of them, meaning they were behind it. How could the sliding door hit the plaintiff because if it was being closed, it moved to the front, away from them. If it was opened, it moved to the back unless it dislodged. It couldn't move 4-5 metres behind the moving vehicle."** 1. The lower court does not appear to have made a specific order in its Judgment dismissing the suit, but it found no probable proof that the Appellant was knocked down by the Respondents' vehicle's sliding door contrary to the Appellant's evidence. The Appellant’s main complaint is that liability was decided against the weight of evidence adduced in the lower court. **Grounds of Appeal and Reliefs sought** 1. The Appellant’s 3 grounds of Appeal as per Memorandum of Appeal dated 16th February 2023 may be condensed into 2 as here below: 1. **That the learned trial magistrate erred in law and fact by determining liability and dismissing the claim against the weight of evidence .** **And** * 1. **That the learned trial magistrate erred in law and fact by failing to dutifully analyze the Appellant’s submissions and apply legal principles guiding determination of liability.** 1. The Appellant wants the court to set aside the lower court’s Judgment and independently determine the issue of liability for the claim. The court is also urged to order that the Respondents do bear the costs of the Appeal. **Guiding Principles** 1. It is trite that a first appellate court has the duty of re-assessing the evidence and reaching its own conclusions on matters of fact and law. The court will only interfere with the trial court’s findings if relevant factors were not taken into account or irrelevant factors were considered or the trial court otherwise misdirected itself. (see case law in **Selle vs. Associated Boat Company [1968] EA 123** and **Ocean Freight Shipping Co. Ltd vs. Oakdale Commodities Ltd (1997) eKLR**. The Court of Appeal for East Africa in **Peters –vs- Sunday Post Limited [1958] EA 424** underscored the same principles delivering itself thus:” 2. ***First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** 3. ***In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and*** 4. ***It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** 5. The same principles are enunciated in **Isaac Ng’ang’a Kahiga & Another vs Republic (2006) eKLR among other decisions cited by Counsel.** **Analysis and Determination.** 1. Counsel for the Appellant submit that there is no contradiction/inconsistency in the evidence of the Appellant and his witness (PW2). Referring to case law in **M K vs Republic (2020) eKLR** among other cited cases, the Appellant argues that while evaluating evidence, a court must not pick out words/phrases and consider them in isolation but rather ought to appreciate evidence tendered as a whole while deciding whether or not any contradictions or inconsistencies are minor or go to the root of the matter. The Appellant's and PW2's evidence is said to be consistent to the effect that the motor vehicle veered off the road on to the Tuk Tuk stage which is indicative of negligent driving. 2. The Appellant’s Advocates further place reliance on **Chivatsi Simba Mwangiri vs Boniface Musyoka (2011) eKLR** where it was observed that a Claimant's evidence corroborated by the defence evidence on occurrence of an accident is probative of the fact. In **Susan Kanini Mwangangi & Another & Another vs Patrick Mbaithi Kavita (2019) eKLR** also cited in reliance by Counsel, it was held that a balance of probability is achieved if a case is established; “… to a percentage of 51% as opposed to 49% of the opposing party...” 1. In the alternative, the Appellant opines that where liability cannot be established owing to conflict of evidence as to how an accident occurred, both parties ought to be held equally liable as per case law in **Salmin Isbarak Mwadhi vs Emma Haruki Mutwota (2017) eKLR)** Counsel make reference to. **The Respondents' Submissions** 1. The Respondents reference the judicial determination in **Evans Nyakurama vs Cleophas Bwana Ongoro (2015) eKLR** where it was underscored that thelegal burden of proof is on the Claimant who asserts in the affirmative also laid down in **Sections 107(1), 109 and 112 of the Evidence Act.** 2. Counsel taps the wise words of **Lord Denning** in **Miller vs Minister of Pensions 19472 ALL E.R** in which it is opined that a balance of probability carries a reasonable degree of probability but not as high as that required in criminal cases. The burden is on a balance of preponderance of probabilities which means a win, however narrow, and that a draw is not enough. The same principle is reiterated in **William Kabogo Gitau vs George Thuo & 2 Others (2010) KLR 526**. 3. It is therefore the view of the Respondents that the trial magistrate correctly applied the law on the issue of liability herein and the decision must stand. **Determination** 1. Counsel have correctly stated the law on the meaning and purport of the balance of probability as the standard of proof in civil cases. To underscore the legal position. In the **English House of Lords decision in Re H (minors) sexual abuse; standard of prof ( 1996) AC 563 and 505 for the Home Department V. Rehman (2003) 1 AC 153 it** was reiterated that the standard of proof in civil cases is the preponderance of probability or the balance of probability as it is commonly known, and this means that; ‘’……. the court must be satisfied that the event in question is more likely than not to have occurred. The balance of probability standard is a flexible standard. This means that when assessing this probability, the court will assume that some things are inherently more likely than others…...’’ 1. **In Ribiru V. Ndung’u (suing on behalf of the Estate the Late Joram Ndung’u Mwaniki ) & 2 Others (Civil Appeal No. 37 of 2023) (2024) KEHC 339 (KLR) (25 January 2024) (Judgement)** it was observed **that** interference with a trial court’s Judgment on liability for a claim can only happen in exceptional circumstances, as in instances where wrong principles are invoked or proper legal principles are not taken into account. 2. On the basis of the evidence of PW2 and PW3 (Police Officers) which corroborates that of the Appellant, there is no dispute that the accident in issue occurred and that the Appellant was injured. The issue for determination is whether the trial magistrate rightly dismissed the claim for want of proof of the Respondents' blameworthiness. 3. Counsel correctly guided the court on principles related to the standard and burden of proof in civil cases. The onus is on the claimant to prove his allegations to the required standard. The trial magistrate thought that the burden was not discharged because it was impossible for the Appellant to have been hit by the motor vehicle’s door as explained by the court. 4. I agree with the Appellant that the learned trial magistrate did not make a holistic appreciation of the evidence before the court. It is not controverted that the motor vehicle had unlawfully moved off the road onto a part designated for *Tuk Tuk* drivers where the Appellant was. There is this other not quite rebutted aspect of the appellant’s evidence that the motor vehicle hurriedly left the stage after the appearance of security officers. This further corroborates the Appellant’s evidence as to negligent driving of the vehicle. 5. While the police abstract purports to show that the Appellant was to blame, there is no evidence in this regard. Any officer who investigated the accident didn't testify to state why the Appellant was recorded in the abstract as culpable. 6. On the material placed before the trial court, therefore, I have to disturb its Judgment. The Respondents are found and held wholly liable, jointly and severally, for the claim. The lower court’s judgment dismissing the claim is thus set aside and substituted accordingly. 7. The costs to the Appeal are granted to the Appellant. **JUDGMENT delivered virtually at NAKURU this 29th day of June, 2026.** **J. M. NANG’EA - JUDGE.** **In the presence of:** **Ms Kurere Advocate for Mr. Njuguna Advocate for the Appellant.** **Ms. Cherotich Advocate for Ms. Chemutai Advocate for the Respondents.** **Court Assistant -(Jennifer).** **J.M. NANG’EA - JUDGE.**