[2019] KEHC 6209 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

CIVIL APPEAL NO 796 OF 2006

TERESIA WAMBURA MUTIE................................................................APPELLANT

VERSUS

DICKSON MUSYOKI MAUNDU...........................................................RESPONDENT

(Being an appeal from the Judgment and Decree of the Hon C.W. Meoli

dated 30th October 2009 in CMCC No 12024 of 2004)

JUDGMENT

INTRODUCTION

1. In her decision of 30th October 2006, Hon Mrs C.W. Meoli, Ag.Chief Magistrate (Ag. CM) (as she then was) dismissed the Appellant’s case.

2. Being dissatisfied with that decision, on 21st November 2006, the Appellant filed a Memorandum of Appeal dated 17th November 2006. She relied on seven (7) grounds of Appeal.

3. The Appellant’s Written Submissions were dated 16th June 2017 and filed on 20th June 2017. Her list of Bundle of Authorities were dated 2nd October 2017 and filed on 13th October 2017. The Respondent’s Written Submissions and List of Authorities were both dated 3rd October 2017 and filed on 8th November, 2017.

4. Parties asked this court to deliver its decision based on Written Submissions which they relied upon in their entirety. The Judgment herein is therefore based on the said Written Submissions.

THE APPELLANT’S CASE

5. The Appellant submitted that she called two (2) other witnesses to support her case and that the Respondent did not adduce any evidence. She argued that the Trial Magistrate erred by failing to apply the doctrine of res ipsa loquitor as was pleaded in the Plaint and advanced during trial.

6. She contended that the Trial Magistrate erred in law by setting the evidentiary burden beyond reasonable doubt and not on a balance of probabilities as is meant to be in the case civil suits. In this regard, she relied on the case of Kanyungu Njogu vs Daniel Kimani Maingi [2000] eKLR.

7. She submitted that the doctrine of res ipsa loquitor was sufficiently proved because the accident occurred in circumstances in which it should not have and that in the absence of any other explanation or tendering of evidence by the Respondent, the original burden of proof that it was the Respondent who caused the accident was proved.

8. She also relied on the case of Embu Public Road Services Ltd vs Riimi (1968) E.A. 22 where the Court of Appeal stated that:-

“Where the circumstances of the accident give rise to the inference of negligence, then the defendants, in order to escape liability, has to show that there was a probable cause of the accident which does not connote negligence or that the explanation for accident was consistent only with an absence of negligence”

9. She further placed reliance on several other cases where it had been held that where there was no attempt at rebutting the application of the principle of res ipsa loquitor, once pleaded, the same became applicable and that once a plaintiff proved his case on a balance of probability, then he was entitled to the orders he had sought in his plaint.

10. She submitted that the Trial magistrate erred in not taking judicial notice that the Respondent failed to call any witnesses and therefore urged the court to set aside the judgment that was delivered by the Trial magistrate and enter judgment in her favour as was prayed for in the Plaint.

THE RESPONDENT’S CASE

11. The Respondent pointed out that the Appellant had contended that he had allowed a defective motor vehicle to be driven on a public road but that she did not adduce any evidence to prove her assertion. He therefore argued that the principle of res ipsa loquitor was not applicable in the circumstances of the case.

12. He added that Pascal Kaloki Ndambuki (PW1) was not an eye witness of how the accident occurred because his evidence was that he reacted only after he heard a bang and when he rushed there, he found it was the deceased, who was his friend, in Motor Vehicle Registration No KKX 759 (hereinafter referred to as the subject motor vehicle). He also stated that the Appellant was only told about the incident but never witnessed the same occurring.

13. He submitted that the Appellant could only rely on the principle of res ipsa loquitorif she had established a prima facie case, if his case was not rebutted, if she had established that he was the owner of the subject motor vehicle and if she had demonstrated that she had locus standi in the case herein.

14. He placed reliance on the cases of Obed Mutua Kinyili vs Wells Fargo & Another [2014] eKLR andNandwa vs Kenya Kazi Ltd [1988] KLR 488where the common thread was that liability will be decided in the plaintiff’s favour unless a defendant can displace a prima facie inference that he is the one who caused the accident. He was emphatic that the principle of res ipsa loquitor was not applicable in the circumstances of the case herein.

LEGAL ANALYSIS

15. Res ipsa loquitor is a well known and settled principle that means that a defendant will be held liable where he is unable to displace an inference that he is to blame for an accident or incident. The circumstances must be such that in the absence of any other explanation, it can only be inferred that he is prima facie to blame for causing the accident or act resulting in injury or damage.

16. In the Black’s Law Dictionary 10th Edition, it is stated that “res ipsa loquitor” is a Latin doctrine meaning “the thing speaks for itself” That thing must not be one that ordinarily happens if care and due diligence is exercised.

17. This court therefore was in agreement with the submissions and case law that was relied upon by both parties to buttress their arguments on when the doctrine of “res ipsa loquitor” becomes applicable. It was now left with the task of going through the evidence that was adduced in the trial court to establish whether or not the said doctrine was applicable in the circumstances of the case.

18. In his evidence, PW1 stated that on 3rd December 2017 he was at the market where they (sic) sell milk. It was 11. 00a.m. He heard a loud bang and ran towards the scene to see what had happened. He came across a Matatu accident. The Matatu was the subject Motor Vehicle. He saw his friend, the deceased, Bernard Mutie Munyoki, who was in the Matatu. He was bleeding from the nose, mouth and ears. They picked him and took him to Kangundo Hospital. His testimony was that it was only the deceased who sustained fatal injuries.

19. When he was cross-examined, he admitted that he didn’t see the accident or know what caused it.

20. The Appellant who was PW3 during the trial told the Trial court that it was the Respondent’s responsibility to keep his motor vehicle in good working order. She was emphatic that he could not use defects (sic) as a defence.

21. It was evident as the Respondent submitted that neither PW1 nor the Appellant saw the actual accident and/or how it happened or knew what caused the same. PW1 was in a better position to have shed more light on the position of the Matatu or its state. He did not say whether it had overturned, whether it had hit an obstacle, whether it was hit by another motor vehicle or object or whether it had a mechanical defect or tyre burst that could have caused it to have an accident. His evidence was so sketchy that this court was persuaded by the Respondent’s submissions that his evidence was so vague sufficient for it to ask itself whether really he was at the scene of the accident at the material time.

22. On her part, the Appellant did not provide any proof to demonstrate that the subject Motor Vehicle overturned. If it had, nothing would have been easier than for PW1 to have told the Trial court as much. She did not also adduce any proof that the Respondent’s subject Motor Vehicle was defective at the material time.

23. The burden of proof was on the Appellant to prove that the inference of blame made on the part of the Respondent. She failed to discharge evidentiary and legal burden that was placed on her as contemplated under Section 107 of the Evidence Act Cap 80 ( Laws of Kenya).

24. Section 107 of the Evidence Act stipulates that:

1. “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 exist.

2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies with that person”

25. Section 109 of the Evidence Act further states that:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on a particular person.”

26. Accordingly, having considered the evidence that was adduced during trial, the parties’ Written Submissions and the case law that they each relied upon this court came to the firm conclusion that the facts of this case did not fall within the ambit of the doctrine of “res ipsa loquitor”. There was need to explain the circumstances under which the accident herein occurred. This court therefore found and held that the Trial Magistrate could not be faulted as she made a correct determination that the Appellant did not prove negligence against the Respondent which lent her to find that the Respondent’s case failed as it was not proved on a balance of probability required in civil cases.

DISPOSITION

27. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 21st November 2016 was not merited and the same is hereby dismissed with costs to the Respondent herein.

28. It is so ordered.

DATED and DELIVERD at NAIROBI this27th day ofJune 2019

J. KAMAU

JUDGE