[2022] KEHC 2664 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. E020 OF 2021

STEPHEN KANJABI WARIARI............................................ APPELLANT

VERSUS

DENNIS MUTWIRI MURIUKI.....................................1ST RESPONDENT

MARTIN N. MWEA.......................................................2ND RESPONDENT

(Being an appeal from the judgment of the Hon. H. Nyakweba S.P.M. delivered on 23. 03. 2021 in the Embu CMCC No. 134 of 2017)

JUDGMENT

1. The appellant herein has appealed to this Honourable Court against the judgment delivered on 23. 03. 2021 in Embu CMCC No. 134 of 2017 on the following main grounds and others to be adduced at the hearing hereof namely:-

i.That the trial Magistrate erred in law and in fact by failing to appreciate the Appellant had proved his case on a balance of probabilities and was therefore entitled to reliefs sought in the amended plaint dated 28/11/2019.

ii.The learned trial Magistrate erred in law and in fact in holding that the driver of the Motor Vehicle KAH 435N was not negligent in causing injuries to the Appellant by disregarding in total the evidence adduced in court.

iii.That the learned trial Magistrate erred in law and in fact when he disregarded the police abstract as documentary evidence in holding the driver of the Motor Vehicle KAH 435N to blame for the accident notwithstanding the said abstract was produced by consent of the parties.

iv.That the Learned Magistrate erred in law and in fact in disregarding the evidence of the eyewitness in arriving at his decision.

v.That the trial Magistrate erred in law and in fact by holding in his decision that the prayers for the loss of earnings and earning capacity were not pleaded.

vi.That the trial Magistrate misapprehended, misunderstood, and misapplied the law in arriving at his decision.

vii.That the trial Magistrate erred in law and in fact when after evaluating the evidence adduced both oral and documentary arrived at the wrong decision.

viii.That the Learned Magistrate erred in law and in fact in disregarding the pleadings, the evidence and the submissions of the Appellant in arriving at his decision.

ix.He therefore prays that the appeal be allowed, and the court sets aside the Judgement of Honourable NYAKWEBA delivered on 23. 03. 2021 and costs of the appeal awarded to him.

2. When the appeal came up for hearing, directions were taken that the same be canvassed by way of written submissions. However, at the time of writing this judgment, the respondents had not filed their submissions.

3. The appellant in support of his case submitted that the trial court erred in fact and in law in dismissing his case whereas he had proved the same on a balance of probabilities through his evidence and which evidence was corroborated by that of PW2. Further that, the police abstract produced in court was never challenged as there was no evidence in rebuttal and thus its contents cannot be denied. Reliance was placed on HCA No. 7 of 2009 Gerald Njuguna Mwaura v Africa Merchants Assurance Co. Ltd.

4. It was his case that the trial court erred in holding that the police abstract was not sufficient to prove negligence on the part of the appellant herein yet the production of the said abstract was by consent and there was no evidence tendered in rebuttal. That the trial court erred in disregarding the evidence of PW2 yet it was direct evidence as defined under Section 63(1) of the Evidence Act as the witness was an eye witness. The appellant further submitted that the trial court erred in finding that the appellant did not plead loss of earnings whereas the same was pleaded in the amended plaint. That further, the issue of loss of earnings was proved by the evidence of PW1 and PW2 who adopted their witness statements and the evidence which supported the issue of loss of Kshs. 3,000/- daily wage. It was also submitted that the trial court misunderstood the facts and the law in arriving at its decision and which decision was wrong.

5. I have considered the grounds of appeal and the submissions by the appellant. As I have already noted, the respondent did not file submissions in opposing the appeal. However, it has been restated by the superior courts that the duties of the first appellate court is to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, before drawing a conclusion from that analysis. The court has however to bear in mind the fact that it did not have an opportunity to see and hear the witnesses first hand. This was the decision by the Court of Appeal in the case of Peter M. Kariuki v Attorney General [2014] eKLR. The appellate court further ought not to interfere with the exercise of its discretion by a lower court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it acted on matters which it ought not to have acted or it has failed to take into consideration matters which it ought to have taken into consideration and in so doing, arrived at a wrong conclusion (SeeMwanasokoni v Kenya Bus Service Ltd. (1982-88) and Kiruga v Kiruga & Another (1988) KLR 348).

6. In furtherance of the above duty, I have certainly perused and understood the contents of the pleadings, proceedings, grounds of appeal, submissions and the decisions referred to by the appellants. I have indeed re-evaluated the evidence tendered before the trial court.

7. In a nutshell, the appellant in his amended plaint sued the respondents claiming general damages, special damages (Kshs.18, 090. 00), loss of earnings and costs of the suit and interest amongst other reliefs. His case was that on 13. 10. 2016, the 1st respondent drove motor vehicle registration number KAH 435N within Kithimo market and which vehicle hit a stationary motor vehicle registration number KAJ 121V which in turn hit and seriously injured him. The appellant based the said claim on negligence and blamed the 1st respondent for the injuries suffered and also for the loss of earnings and damage suffered. The particulars of the said negligence and the particulars of the injuries were stated in paragraphs 8 and 9 of the amended plaint.

8. The respondents herein filed their joint statement of defense which was later amended and in a nutshell, they admitted the occurrence of the accident but denied the allegations of negligence on their part. They blamed the appellant and the driver of motor vehicle registration number KAJ 121V and pleaded contributory negligence as against both the appellant and the driver of the said motor vehicle. They further denied the injuries allegedly suffered by the appellant and prayed that the suit be dismissed with costs.

9. The trial court heard the case and wherein the appellant testified as PW1 and called one witness. The appellant adopted his witness statement as his evidence in chief and further adopted his list of documents as his exhibits. He called PW2 who testified that they used to work as borehole diggers. His evidence was that motor vehicle KAH 435N hit motor vehicle KAJ 121V which was pushed and hit the appellant. At the hearing, the police abstract (dated 16. 02. 2017) was produced as PExbt 1 by consent and the appellant closed his case.

10. The respondents herein proceeded to close their case without calling any evidence. In its judgment delivered on the 23rd March 2021, the appellant’s case was dismissed with costs. It is this judgment which is the subject of the appeal herein.

11. The court has analyzed the pleadings and evidence before the trial court, and has considered the grounds of appeal filed herein and the appellant’s written submissions. As I have already noted, the appellant’s case (as was before the trial court) was premised on the tort of negligence. That being the case, the appellant had a duty to prove that the accident was caused by the negligence of the respondents herein. In so doing, the appellant had a duty to prove the elements of negligence. The elements of the tort of negligence which must be proved for an action in negligence to succeed are (a) there was a duty of care owed to him, (b) the duty has been breached, and (c) as a result of that breach he or she has suffered loss and damage (See Donoghue v Stevenson [1932] A.C. 562. )

12. This burden of proof was on him by virtue of section 109 and 112 of the Evidence Act Cap 80 Laws of Kenya. (See also the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334). The standard of proof which was required of the appellant is that of balance of probabilities [See Miller v Minister of Pensions [1947] 2 All ER 372].The position as to proof in civil cases was reiterated in the case of Kirugi & Anor v Kabiya & 3 Others [1987] KLR 347 wherein the Court of Appeal stated that the burden is always on the plaintiff to prove his case on a balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof.

13. Further, as the Court of Appeal held in East Produce (K) Limited v Christopher Astiado Osiro In Civil Appeal No. 43 Of 2001;

“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.” [See Mount Elgon Hardware v Millers C.A. No. 19 of 1996 and Mwaura Mwalo v Akamba Public Road Services Ltd HCC No 5 of 1989].

14. The appellant herein as such had both the legal and evidential burden to prove the facts alleged on a balance of probabilities. The question therefore is whether the evidence by the appellant was sufficient to prove negligence before the trial court.

15. It is not in dispute that there was an accident which occurred on the material date involving the suit motor vehicle and the appellant. The respondents in fact admitted the same in their statement of defense. The ownership of the suit motor vehicle was also not disputed. It is further not in dispute that the 1st respondent was a road user on the material date. It is trite that a driver owes a duty of care to other road users; as such, the 1st respondent herein owed the appellant a duty of care. However, from the pleadings before me, the issue is whether the appellant herein was able to prove that the respondents breached the said duty of care and as a result of the said breach, he suffered damage and loss.

16. The appellant in his evidence before the trial court basically adopted his witness statement as his evidence in chief. He then proceeded to produce the P3 Form, medical report, treatment record and identity card. In cross examination, he only testified as to the work he was doing and the amount he was earning. He called his witness PW2 who testified that on the day of the accident, a motor vehicle KAH 435N veered off the road, hit motor vehicle KAJ 121V and pushed it and the impact thrust it towards where the appellant was seated injuring him.

17. It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings and that the evidence adduced by the opposing party against them is uncontroverted and therefore unchallenged [See Motex Knitwear Limited v Gopitex Knitwear Mills Ltd Nairobi (Milimani) HCCC No. 834 of 2002 and Trust Bank Limited v Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001].

18. However, as I have already stated, there is as yet no liability without fault and a plaintiff must prove negligence against the defendant where the claim is based on negligence. The plaintiff in my view, must place sufficient material before court to discharge the burden placed on such a party. From the evidence tendered before the trial court, many questions relating to how the suit motor vehicle caused the accident remains unanswered. For instance, on what side of the road were they when the suit motor vehicle hit motor vehicle KAJ 121V? Was the suit motor vehicle over-speeding? I have looked at the witness statements by both the appellant and PW2 (in the trial court) and I don’t find any evidence which tend to prove the particulars of negligence as were pleaded under paragraph 8 of the amended plaint. Despite the respondents having not tendered any evidence to rebut the appellant’s evidence, it is my view that the appellant did not discharge his duty to prove his case on a balance of probability. In fact from the evidence on record, it is hard to tell how the accident occurred. The appellant failed to discharge the legal burden of proof.

19. In my view, a suit cannot just succeed merely because it proceeded exparte or the other party did not call any evidence. The plaintiff in a suit has a duty to tender sufficient evidence in support of his case. As such, considering the evidence which was tendered before the trial court, I am of the considered view that the conclusion reached by the Learned Trial Magistrate (dismissing the suit before it for want of evidence to establish negligence for liability to attach) was founded on sound evidence. That being the case, grounds 1, 2, 4, 5, 6, 7 and 8 fails.

20. As for ground of appeal No. 4, as I have already stated, negligence is proved by evidence. As such, in my view the police abstract cannot substitute the requirement or the need to adduce evidence to prove the case on the part of the appellant. This is despite the fact that production of the same was not opposed. The same indicates that the owner of the suit motor vehicle was to blame for the accident. However, as the trial court held and which finding I agree with, it was not sufficient for the police abstract to just indicate who was to blame. More evidence was required from the appellant (plaintiff) to justify how the same decision was arrived at. It is my considered view that the trial court was right in holding that the police abstract was not sufficient to prove negligence.

21. The upshot of this judgment is that, the appeal is hereby dismissed with costs to the respondents.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF FEBRUARY, 2022.

L. NJUGUNA

JUDGE

…………………………………………..for the Appellants

………………………………………….for the Respondent