[2018] KEHC 1346 (KLR)
The court held that the appellant failed to discharge the burden of proof required to establish the respondent's liability for the injuries sustained. The appellant did not know the identity of the shooter, did not call any witnesses, and failed to produce police records or evidence that the shooting was reported or...
Source-derived case information.
- Citation
- [2018] KEHC 1346 (KLR)
- Parties
- Appellant: Walter Ochieng Olang; Respondent: The Attorney General (Sued on behalf of Commissioner of Police, Permanent Secretary, Office of the President, Provincial Administrators & Internal Security)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 238 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Police Liability, Duty of Care, Personal Injury, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Ochieng Olang
Appellant
The Attorney General (Sued on behalf of Commissioner of Police, Permanent Secretary, Office of the President, Provincial Administrators & Internal Security)
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent owed a duty of care to the appellant and breached it resulting in injury.
- 2 Whether the appellant proved on a balance of probabilities that the respondent was liable for the injuries sustained.
- 3 Whether the trial court erred in dismissing the appellant's suit for lack of evidence.
Ratio Decidendi
The court held that the appellant failed to discharge the burden of proof required to establish the respondent's liability for the injuries sustained. The appellant did not know the identity of the shooter, did not call any witnesses, and failed to produce police records or evidence that the shooting was reported or investigated. The court found that the evidence was insufficient and based on assumptions, and that the trial magistrate was correct in dismissing the suit. The appeal was found to lack merit and was dismissed accordingly.
Court Disposition
appeal dismissed
Orders
- Each party to bear their own costs both in the lower court and in this appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL 238 OF 2013
WALTER OCHIENG OLANG........................................................................................APPELLANT
VERSUS
THE ATTORNEY GENERAL (Sued on behalf of Commissioner of Police, Permanent Secretary,
Office of the President, Provincial Administrators & Internal Security...................RESPONDENT
(Being an appeal from the Judgment of the Hon. A. Lorot (A.G.) Senior Principal Magistrate at Milimani Commercial Courts in CMCC No. 8199 of 2008 dated 8th April, 2013)
JUDGMENT
The appellant sued the respondent in the lower court following injuries sustained when he was allegedly shot by a police officer in January, 2008. He blamed the injuries on the respondent who by his pleadings failed in his statutory duty on the appellant. The breach of the said statutory duty is enumerated in paragraph 3 of the plaint. The injuries sustained by the appellant were also set out in paragraph 4 of the plaint.
The respondent denied the appellant’s claim and after a full hearing the appellant’s suit was dismissed leading to the present appeal. In the memorandum of appeal dated 5th and filed on 8th May, 2013 the appellant blamed the lower court for finding that he had not proved his case on a balance of probability, in that it failed to evaluate the evidence on record and thereby misdirected himself. The lower court is also faulted for not finding the respondent had a duty of care, that he breached resulting in the injuries sustained by the appellant.
Counsel elected to file submissions to address the appeal which I have on record. Only the appellant testified in support of his pleadings while the respondent did not call any witness. In his judgment the learned trial magistrate said in part as follows,
“The plaintiff did not explain what he was doing. This court is not convinced that he has laid an account worthy of discharge of the attendant burden of proof. He never called any witness, he does not know who shot him, there is no police officer charged with his shooting, he did not call for the records of any police station or post to demonstrate and show that the shooting was reported or any action or inaction taken by the police. This case is very bare and premised on many assumptions.
I find that the plaintiff has failed to establish his case and dismiss the suit accordingly. “
Notwithstanding the fact that the defendant did not call any evidence, it was incumbent upon the appellant to prove his case leading to liability he alleged on the part of the respondent. He did not know the person who shot him; it was common knowledge that, that was a period when this country was engulfed in post-election violence and as rightly observed by the trial magistrate there was violence, riots, looting, displacements and killings along ethnic lines across the country.
The evidence adduced by the appellant failed to discharge the threshold required to hold the respondent liable. The lower court was therefore correct to have dismissed the appellant’s suit and I find this appeal lacking in merit.
The trial court awarded the respondent minimal costs of the suit. It is not clear what minimal cost mean. I have considered the circumstances under which the appellant sustained the injuries and his position in society vis a vis the respondent. I am persuaded that the appropriate order is that each party should bear their own costs both in the lower court and in this appeal.
Dated, signed and delivered at Nairobi this 11th day of December, 2018.
A.MBOGHOLI MSAGHA
JUDGE