https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11960

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E079 OF 2024** **STEPHEN KELVIN MBITHE………………………………………..APPELLANT** **VERSUS** **BAHARATI LIMITED………………………………….………..1ST RESPONDENT** **JAMES MUTUKU KIMEU……………………………………..2ND RESPONDENT** **JUDGMENT** 1. The appeal arises from the judgment delivered on 20th February 2024 by Hon. H.M. Mbati in Machakos CMCC No. 400 of 2022, wherein the Appellant, who was the plaintiff before the trial court, had his suit dismissed with no order as to costs. 2. Before the trial court, the Appellant sought the following reliefs: 1. Special damages of Kshs. 13,680/=; 2. General damages for pain and suffering; 3. Costs of the suit; and 4. Interest on the above at court rates. 3. The suit was defended, and both the Appellant and the Respondent called two witnesses each. 4. Being dissatisfied with the judgment of the trial court, the Appellant preferred the present appeal. 5. The Appellant submitted that this being a first appeal, this Court is under a duty to re-evaluate the evidence on record, assess it afresh and arrive at its own independent conclusions. In support of this submission, reliance was placed on Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (2005) 1 EA 334, where the Court of Appeal explicated the provisions of Section 107(1) of the Evidence Act. 6. The Appellant submitted that during the hearing before the trial court, he testified that on 22ndOctober 2022, he was seated at Kwa Mukeka Stage together with Ramsey Mbithe, who testified as PW2, and one Amos Kalanza, when the driver of motor vehicle registration number KDC 175L, an Isuzu lorry, approached them and requested one of them to assist in offloading stones that he had transported. 7. The Appellant accepted the request. 8. It was the Appellant's evidence that after assisting in offloading the stones, he was ferried back in the rear section of the said lorry to Kwa Mukeka Stage. Upon arrival, as he was in the process of alighting from the vehicle, the driver drove off before he had safely alighted, causing him to fall from the lorry and sustain injuries. 9. The Appellant contended that the driver of the lorry ought to have been held 100% liable, since had he allowed the Appellant to safely alight before driving away, the accident would not have occurred. 10. The Appellant produced a Police Abstract dated 1st November 2022 as PExh.1. 11. The Appellant further submitted that PW2, Ramsey Mbithe, who witnessed the accident, testified that he had been seated together with the Appellant at Kwa Mukeka Stage when the driver requested one of them to assist in offloading stones. PW2 confirmed that the Appellant accepted the request and proceeded with the driver to the unloading site. 12. The Appellant submitted that PW2 further testified that the Appellant later returned while riding at the back of the lorry and that upon reaching Kwa Mukeka Stage, as the Appellant attempted to alight, the driver drove off, causing the Appellant to fall and lose consciousness. 13. According to the Appellant, PW2 immediately rushed him to Machakos Level 5 Hospital, and this evidence was never challenged during cross-examination. 14. It was therefore submitted that the learned trial magistrate erred both in fact and in law by disregarding the evidence of the Appellant together with that of PW2 regarding the occurrence of the accident. 15. The Appellant further submitted that the purpose of a police abstract is merely to demonstrate that an accident was reported, and that the making of such a report is not, of itself, proof of the occurrence of the accident. 16. Reliance was placed on Techard Steak & Power Limited v Mutio Muli & Mutua Ngao (2019) eKLR, where the court held that negligence may be proved notwithstanding the absence of a police report or testimony from the investigating officer, provided there exists independent evidence establishing both the occurrence of the accident and the defendant's negligence. 17. The Appellant faulted the trial court for placing reliance on the testimony of DW1, a police officer who merely produced the police abstract on behalf of the Respondent despite not being the investigating officer. 18. The Appellant equally faulted the trial court for holding that he ought to have called the investigating officer as a witness, maintaining that there was no legal obligation upon him to do so. 19. The Appellant further complained that the learned trial magistrate failed to assess damages after dismissing the suit. In this regard, reliance was placed on Frida Agwanda & Ezekiel Onduru Okech v Titus Kagichu Mbugua (2015) eKLR, wherein the court held that even where a suit is dismissed, the trial court ought nevertheless to assess the damages that would have been awarded had liability been established. 20. The Appellant also relied on Lei Masaku v Kalpana Builders Ltd (2014) eKLR, where similar principles were expressed concerning the duty of a trial court to assess damages notwithstanding dismissal of a claim. 21. The Appellant therefore submitted that the judgment of the trial court was fundamentally flawed for failure to assess damages. 22. Consequently, the Appellant urged this Court to find that the appeal is meritorious, set aside the judgment delivered on 20th February 2024, and substitute it with an order allowing the prayers contained in the Appellant's Plaint dated 14th November 2023. 23. The Respondents opposed the appeal and submitted that the grounds of appeal may be condensed into the following two issues: 1. Whether the trial court erred in law and fact in dismissing the Appellant's suit for failure to prove liability against the Respondents. 2. Whether the trial court erred in law and fact by failing to assess damages after finding that liability had not been established. 24. The Respondents submitted that this Court, as a first appellate court, is indeed under a duty to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions. 25. However, in doing so, the Court must bear in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify. Reliance was placed on Njoroge v Gakere & Another (2025) KEHC 4048 (KLR), wherein it was held that an appellate court ought not interfere with findings of fact merely because it would have arrived at a different conclusion had it heard the matter in the first instance. 26. The Respondents submitted that the mere occurrence of an accident is not proof of negligence and that the burden of proof remains upon the claimant pursuant to Section 107(1) of the Evidence Act. 27. The Respondents further relied on Statpack Industries Limited v James Mbithi, Nairobi HCCA No. 152 of 2003, as cited in Timesales Ltd v Willy Nganga Wanjohi, Nakuru HCCA No. 230 of 2004, wherein the court stated: *"...The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence. An injury per se is not sufficient to hold someone liable."* 1. The Respondents submitted that the police attended the scene, conducted investigations, and thereafter issued a Police Abstract attributing blame to the Appellant for stealing a ride. 1. They emphasized that the Respondent's driver was neither blamed nor charged with any traffic offence. 2. It was further submitted that the Appellant failed to call the investigating officer to testify regarding the circumstances of the accident, the point of impact, or the outcome of the investigations. 3. The Respondents submitted that DW1, a police officer, testified that the Appellant had stolen a ride aboard motor vehicle registration number KDC 175L and fell therefrom at Mukeka area. DW1 produced the Police Abstract which blamed the Appellant for stealing the ride. 4. The Respondent's driver testified as DW2 and denied ever engaging the Appellant to assist in offloading stones. 5. He testified that while driving along the Machakos–Kangundo Road near Mukema Market, a matatu travelling behind him persistently hooted, prompting him to stop the lorry. Upon stopping, he observed the Appellant lying on the ground. 6. He later learnt that the Appellant had attempted to unlawfully board the moving lorry but missed his footing. 7. The Respondents submitted that the nature and pattern of the injuries sustained by the Appellant were more consistent with a person falling from a moving vehicle than with a person who had been attempting to alight after being lawfully carried. 8. It was submitted that the Appellant sustained a non-displaced right occipital skull fracture, frontal contusion with haemorrhage, together with blunt injuries to the neck and lower back, injuries said to be characteristic of a backward fall onto a hard surface following loss of balance or grip. 9. Reliance was placed on Mwiandi v Mutegi & 2 Others (Civil Appeal No. E012 of 2022) (2023) KEHC 25148 (KLR), where the court held that a person who boards or attempts to board a goods vehicle without the knowledge or authority of the driver voluntarily assumes the risk of injury and cannot thereafter attribute liability to the vehicle owner. 10. The Respondents submitted that the learned trial magistrate properly evaluated the pleadings, the evidence tendered, and the applicable law before reaching the impugned decision. 11. Regarding the issue of damages, the Respondents submitted that failure to assess damages does not, by itself, invalidate an otherwise proper judgment on liability. Reliance was placed on Mwenda v Mutembei (2023) KEHC 20889 (KLR), where the court observed that: *"...save for failure by the trial magistrate to assess the quantum of damages, the appellant failed to demonstrate that the learned trial magistrate erred in any way in arriving at her verdict."* 1. The Respondents therefore submitted that the trial court's omission to assess general damages did not constitute sufficient ground for allowing the appeal. 2. Accordingly, the Respondents urged this Court to dismiss the appeal with costs. 3. Having considered the Record of Appeal, the judgment of the trial court, the grounds of appeal, and the rival submissions of the parties, the issues that fall for determination are: 4. Whether the trial court’s decision to dismiss the plaint was proper in law in light of the evidence adduced before it and 5. Whether the appellant was entitled to damages and what amount, if any. 6. Before addressing the substantive issues, it is necessary to restate the role of this Court as a first appellate court. 7. As this is a first appeal, the Court is obliged to re-evaluate, re-analyse and reconsider the entire evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore accord due deference to the findings of the trial court on issues of credibility. 8. The Court will only interfere with findings of fact where they are unsupported by the evidence, are based on a misapprehension of the evidence, or where the trial court acted on wrong principles of law. 9. The Appellant testified that on 22ndOctober 2022, he was seated at Kwa Mukeka Stage together with Ramsey Mbithe, who testified as PW2, and one Amos Kalanza, when the driver of motor vehicle registration number KDC 175L, an Isuzu lorry, approached them and requested one of them to assist in offloading stones that he had transported. The Appellant accepted the request. 10. It was the Appellant's evidence that after assisting in offloading the stones, he was ferried back in the rear section of the said lorry to Kwa Mukeka Stage. Upon arrival, as he was in the process of alighting from the vehicle, the driver drove off before he had safely alighted, causing him to fall from the lorry and sustain injuries. 11. The Respondent's driver testified as DW2 and denied ever engaging the Appellant to assist in offloading stones. 12. He testified that while driving along the Machakos–Kangundo Road near Mukema Market, a matatu travelling behind him persistently hooted, prompting him to stop the lorry. Upon stopping, he observed the Appellant lying on the ground. 13. He later learnt that the Appellant had attempted to unlawfully board the moving lorry but missed his footing. 14. Faced with conflicting versions of the same event from purported eyewitnesses, the trial court believed the version of the driver of the lorry for the reason that the nature of injuries sustained by the plaintiff were more consistent with a fall from one trying to get on a moving vehicle than one dismounting from a moving vehicle. 15. I am inclined to agree with the deduction by the trial court on that point. 16. At paragraph 18 of the judgment, the trial court observes that the injuries sustained show that the Appellant must have landed on the ground with his head. 17. Had he landed on his hand and legs, then he would have had major injuries such as fractures on his limbs which would have been most probable in the circumstances. 18. The major injuries sustained by the Appellant were a left frontal haemorrhagic contusion and a non-displaced right occipital skull fracture. Which the trial court deduced were consistent with the Appellant falling off a lorry and landing on his back, with the back of his head reaching the ground first. 19. The trial court reasoned that the Appellant got deep cut wound on his left cheek and blunt injuries to the anterior chest as he was stealing a ride on the back of the lorry and it came to an abrupt stop causing him to bump his face and chest on to the body of the lorry then fell off the lorry and landed on his back which to my mind sounds more probable than the scenario presented by the Appellant. 20. In evaluating the totality of the evidence independently from the trial court’s evaluation, I noticed some glaring inconsistencies in the Appellant's and his witnesses' testimony that go to the credibility of their testimony. 21. The Appellant, at paragraph 3 of his witness statement dated 21st December, 2022, states as follows: *“..We proceeded, and after offloading stones, he then carried me behind the said motor vehicle back to Kwa Mukeka along Kangundo -Machakos Road”* 1. The Appellant’s witness, one Ramsey Mbithe states as follows in his witness statement dated 21st December, 2022: *“The driver of motor vehicle registration No. KDC 175L Isuzu lorry came and requested one of us to go and assist him to offload the stones he had carried, and the Plaintiff herein accepted.”* 1. The court records part of the Appellant’s oral testimony after adopting his witness statement as follows: *“I know that lorry. I knew it before the accident happened. It used to come and pick us to do the offloading of sand. I knew the lorry.”* 1. On re-examination, he stated as follows; 1. *“The vehicle carried me to off-load sand, brought me back to the stage.”* 2. I find that one cannot confuse sand and stones and that that contradiction impeaches the credibility of their testimony. 3. The Respondent testified that he was in the business of carrying sand, which is corroborated by the Appellant and his witness. 4. In the circumstances, I find the Respondent more believable than the Appellant and his witness, further buttressing the findings and deductions by the trial court which had the benefit of observing the witnesses and their demeanor. 5. The upshot is that I find that the Appellant has not made out a case for disturbing the findings of the trial court: Consequently, I order as follows: 1. The appeal be and is hereby dismissed with costs to the Respondent. **Emmanuel Bitta** **Judge of the High Court** Dated, signed and delivered via Microsoft Teams at Mombasa this 30th day of July 2026 In the presence of: Nechesah C/A Langalanga for the Appellant N/A for the Respondent