[2022] KEHC 11325 (KLR)

Wekesa & another (Suing as the administrator of the Estate of Rodgers Wangila Syambi (Deceased)) v Migosi & another (Civil Appeal 43 of 2015) [2022] KEHC 11325 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11325 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal 43 of 2015

LK Kimaru, J

June 14, 2022

Between

Josephine Namalwa Wekesa

1st Appellant

Augustine Kituyi Kundu

2nd Appellant

Suing as the administrator of the Estate of Rodgers Wangila Syambi (Deceased)

and

David Migosi

1st Respondent

Al Husnan Motors Limited

2nd Respondent

(An appeal arising out of Judgment and Decree delivered by Hon. V.W. Wandera – CM on 31 st August 2015 in Kitale CMCC No. 228 of 2012)

Judgment

1. The appellants have challenged the decision of the trial court delivered on September 1, 2015 in Kitale CMCC No 228 of 2012; Josephine Namalwa Wekesa & Augustine Kituyi Kundu (Suing as the administrator of the estate of Rodgers Wangila Syambi (Deceased) vs David Migosi & Al Husnan Motors Limited. In their plaint dated June 22, 2012, the appellants averred that on or about the May 29, 2011, the deceased was a lawful pedestrian along KFA-mumia junction in Kitale Town when the respondents’ driver, driving motor vehicle registration number KAR 225C Toyota matatu, swerved from the main road onto a rough road. The said motor vehicle, as a consequence, hit the deceased who sustained fatal injuries. The appellants pleaded that the deceased was twenty six (26) years old at the time of his death. He was a trained motorcycle mechanic earning Kshs 1,000. 00 per day. He was survived by his widow and three (3) children. The appellants sought special damages of Kshs 37,700. 00 and general damages under the Fatal Accident Act and the Law Reform Act. They further sought costs and interest. The respondents opposed the suit. They filed their joint statement of defence on December 19, 2012. The suit was heard before the trial court. In its judgement, the trial court found that the appellants failed to establish their case to the required standard of proof. Consequently, the suit as against the respondents was dismissed with costs hence this appeal.

2. The appellants memorandum of appeal dated September 23, 2015 was filed on September 30, 2015. It raised eight (8) grounds of appeal. The appellants faulted the trial court for finding the deceased liable in negligence yet the evidence was uncontroverted by the respondents. In addition, they faulted the trial court for not taking into account the evidence of the police constable. They faulted the trial court’s judgment for failing to consider that the accident resulted in the deceased’s death. They were aggrieved that the trial court failed to consider the res ipsa loquitor maxim. The appellants were of the view that the decision was unjust and against the weight of the evidence adduced. In the premises, they urged this court to set aside the judgment, make it’s on independent finding on liability and award the appellants costs of the appeal.

3. During the hearing of the appeal, both parties relied on their written submissions. in support of their appeal, the appellants submitted that the respondents did concede that the accident occurred. They however absolved themselves on liability for the accident. They submitted that the trial court was wrong to find that the absence of the evidence of an eye witness or the investigating officer failed to establish that the respondents were liable in negligence. They relied on the evidence of PW2 who testified that the respondents were to blame for the accident. They further argued that since the respondents failed to adduce any evidence, they ought to have been found culpable. The appellants conclusively had raised the presumption that the respondents’ vehicle was carelessly or negligently driven thus causing the accident. They relied on the fact that the 2nd respondent was charged with a traffic offence after the accident. They submitted that the vehicle veered off the road and hit the deceased, a pedestrian. On quantum, the appellants urged this court to award the estate of the deceased a sum of Kshs 1,008,000/= and Kshs 1,300,000/= as damages under the Law Reform Actand the Fatal Accidents Act. They also sought to be paid special damages of Kshs 37,700. 00.

4. The respondents opposed the appeal. They urged this court to uphold the trial court’s judgment. They submitted that the trial court was right in holding that the appellants failed to prove their case on a balance of probabilities. This is because no eye witness or investigating officer testified on the facts and circumstances leading to the accident. They faulted the appellants for violating the provisions of sections 107, 108 and 109 of the Evidence Act. Without prejudice to the foregoing submissions, the respondents submitted that should any measure of liability be found in favour of the appellants by this court, then the appellants ought to be awarded a sum of Kshs 632,640. 00 in general damages under the Law Reform Act and the Fatal Accidents Act. On special damages, the respondents urged this court to award Kshs 18,000. 00 as the only receipt produced in support of special damages.

5. This court has carefully re-evaluated the evidence adduced before the trial court. It has also considered the submissions made by the parties to this appeal. This being a first appeal, this court is obligated to re-evaluate and re-appraise the evidence adduced in the trial court in order to arrive at its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. [Selle vs Associated Motor Boat Company Ltd [1968] EA 123. ]

6. The issues for determination can be determined under the following heads:

Liability 7. The trial court in its judgment dismissed the appellants’ suit against the respondents, for failing to establish that the respondents were liable for the accident. The trial court found that the absence of eye witnesses or the testimony of the investigating officer vitiated their suit. Consequently, the trial court held that the appellants had failed to establish negligence and therefore liability. This is in fact the gravamen of the appeal. If the evidence on record is found to be sufficient, the absence of the evidence of any eye witnesses notwithstanding, this appeal will succeed. That remains the issue for determination on liability because the following facts are not disputed:a.The respondents were the registered and/or beneficial owners of motor vehicle registration number KAR 225C at all material times to the suit;b.An accident occurred along KFA- Mumia junction on May 29, 2011;c.The deceased was involved in the said accident;d.There were no third party proceedings taken out;e.The driver of motor vehicle registration number KAR 225C was never charged with any offence;f.The respondents did not call any witnesses at trial.

8. According to the evidence of the appellants, the deceased Rodgers Wangila Syambi, was involved in a fatal road accident on May 29, 2011 along KFA – Mumia road at about 5:30 p.m. He was going to Kitale District Hospital. PW1, Josephine Namalwa Wekesa, was informed of the tragedy by one Mike. PW2, PC Linda Akoth, testified that an accident occurred on the said date involving motor vehicle registration number KAR 225C and a pedestrian. Whilst the driver was never charged with any traffic offence, the owner of the said motor vehicle was charged. According to the report filed at Kitale Police Station, the driver was driving the said motor vehicle at a high speed. He then veered off the road towards the direction the deceased was repairing a motorcycle. PW2 the driver was to blame for the accident.

9. Were the above facts sufficient to establish that negligence and subsequently liability on the part of the appellants? Indeed sections 107, 108 and 109 of the Evidence Act requires that he who alleges must prove. As stated earlier, the trial court dismissed the suit on account of the unavailability of eye witnesses. While it is indeed true that a plaintiff must prove negligence, a trial court can draw some inferences where enough evidence has been adduced. The court in Mercy Ben & another v Mt Kenya Distributors & another[2022] eKLR held that:“While it is true that none of the appellant’s witnesses gave a first-hand account of how the accident occurred, the testimony of DW1 in my view gave enough indications for the trial court to draw some inferences. The reason why I take this position is that accidents do happen and can be witnessed but at times it can happen where there are no eye witnesses like it occurred in this instance. In such instances, a court should treat the evidence tendered with some caution since the evidence of such a person could be tilted with a view to absolving himself from blame.”

10. However, this court finds that the unavailability of eye witnesses should not have called for blanket dismissal of the suit. Where eye witnesses are absent or crucial information unavailable to positively establish liability, courts have time and again held that while the burden of proof never shifts, negligence can be inferred where no explanation has been offered to rebut the evidence adduced. This is in essence the res ipsa loquitor doctrine. The Court of Appeal in Fred Ben Okoth versus Equator Bottlers Ltd [2015] held that “proof of causation is crucial to the success of most of the action in tort, except in instances where the doctrine of “res ipsa” is applicable.” In essence, the res ipsa loquitor doctrine raises an exception to the proof of negligence on the part of the plaintiff. In Embu Public Road Services Ltd vs Riimi[1968] EA 22, the East African Court of Appeal held that:“The doctrine ofres ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant. The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence of his part; or that the accident was due to the circumstances not within his control. The mere showing that the accident occurred by reason of a skid is not sufficient since a skid is something which may occur by reason of negligence or without negligence, and in the absence of evidence showing that the skid did not arise through negligence the explanation that the accident was caused by a skid does not rebut the inference of negligence drawn from the circumstances of the accident… Where the circumstances of the accident give rise to the inference of negligence the defendant 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 the accident was consistent only with an absence of negligence.”

11. Turning to the facts of this case, it is not denied that there was no eye witness who testified on behalf of either party. It is also true that there could have been no better person to explain the facts and circumstances of the accident that the driver of the motor vehicle. However, he did not testify in this case.

12. In Esther Nduta Mwangi & Another vs Hussein Dairy Transporters Limited MachakosHCCC No 46 of 2007, the court held:“Although the defendant denied the accident but pleaded in the alternative that the accident was as a result of negligence on the part of the deceased, the defendant chose to call no evidence whatsoever, and that being the case the particulars of negligence on the part of the deceased were not proved and are mere allegations...The plaintiff, on the other hand pleaded the doctrine of res ipsa loquitor and produced documents including police abstract showing the date and place of the accident although no eye witness to the accident was called. However, since the doctrine ofres ipsa loquitorwas pleaded, the burden of proof was shifted to the defendant to disprove the particulars of negligence attributed to him.”

13. The appellants at paragraph 6 of their plaint particularized negligence on the part of the respondents. They averred, inter alia, that the respondents drove the said motor vehicle at an excessive speed. They further relied on the doctrine of res ipsa loquitor. The testimony was that the driver of motor vehicle veered off the main road and knocked down the deceased who suffered fatal injuries as a result. It is clear that the said driver owed a duty of care when driving the said motor vehicle. He however breached that duty the minute he veered of the road. The circumstances of veering of the road could only amount to him having over-sped or generally not having been careful or mindful of other road users. This was especially taking into account the fact that the accident occurred at 5:30 p.m. when visibility was clear. The ultimate consequence of his actions or lack thereof was the death of the deceased. The respondents on the other hand did not avail any witnesses to rebut the evidence of the appellants. This, coupled with the fact that the appellants pleaded res ipsa loquitor, the court finds that negligence has been proved on a balance of probabilities and that the appellants discharged their burden of proof. There is reason to interfere with the findings of the trial court on liability. Judgment on liability by the trial court is hereby set aside and substituted with a finding of this court that the respondents were 100% liable for the accident.

Quantum 14. As rightly put, the trial court remained under duty to assess quantum regardless of the outcome of the suit. This court has noted the trial court’s assessment on quantum and sees no reason to interfere with that finding. The award on loss of dependency is Kshs 485, 640. 00. The award on pain and suffering shall be Kshs 10,000. 00. The award of loss of expectation of life is Kshs 100, 000. 00. The appellants while having pleaded a sum of Kshs 37,000. 00 only provided a receipt in the sum of Kshs 18,000. 00. That remains the award in special damages the appellants are entitled to. In the upshot, judgement is entered in favour of the appellants as against the respondents as follows:1. The respondents are 100% liable for the accident.2. General damages are awarded in favor of the appellants in the sum of Kshs 595, 640. 00. 3.Special damages in the sum of Kshs 18,000. 00 are awarded to the appellants.4. The appellants shall have costs of the appeal and the suit with interest thereon.It is so ordered.

DATED AT KITALE THIS 14TH DAY OF JUNE 2022. L. KIMARUJUDGE