Mercy Njoki Kamau v Tiny M. Royal Company & another [2016] KEHC 4203 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL   NO.  198 OF 2012

 MERCY NJOKI KAMAU…………………....……….……APPELLANT    

VERSUS

TINY M. ROYAL COMPANY  …………………...……1^ST RESPONDENT

JOHN WANYOIKE…………………………….…..…2^ND RESPONDENT  

JUDGMENT  

1. This appeal arises from the judgment and decree of Honourable Mr J. Gathuka Principal Magistrate at Muranga in Muranga Principal Magistrate’s Court Civil Case No. 125 of 2010 delivered on 26^th March 2012.
2. The claimant in the subordinate court was Mercy Njoki Kamau, the appellant herein.  She  instituted  suit against the  respondent Tiny Royal Company  Ltd  vide plaint dated  15^th April 2010 seeking for special  damages  and general  damages  arising  from injuries she allegedly sustained  in a road  traffic accident which  occurred on 19^th September   2009 along Kenol- Muranga  Road involving  motor vehicles  registration Nos.  KAY 723B and KBA 587 H.  She claimed the accident was due to negligent acts of the driver/agent or servant  of the defendant  then driving motor vehicle   registration No. KAY 723B, a hearse   wherein the plaintiff claimed to have been a passenger.
3. The defendant  entered an appearance  and filed defence  dated 20^th August  2010 denying   the plaintiff’s claim as pleaded  and in the  alternative  pleading  that the  material accident   was solely caused and or substantial contributed  to by the driver, agent  or servant  of motor vehicle  registration  No.  KBA 589H.
4.  The defendant also issued a  Third Party Notice to the  owner   of the motor vehicle  registration No.KBA 589H.  The plaintiff filed reply to defence  on 1^st September  2010 and the Third Party, John Wanyoike upon being  served  with a Third  Party Notice  dated  2^nd  December  2010 entered  an appearance on 21^st March  2011 and filed defence   dated  31^st  March 2011 on  4^th April  2011  denying the defendant’s claim against him and solely attributing the occurrence of the material accident  to the negligence of the defendant’s  driver/agent  or servant   then driving motor vehicle registration  NO.  KAY 723B.
5. The  plaintiff’s case was  heard.  The defendant and third party never called   any evidence.
6. In his judgment   delivered  on  26^th March 2012 the trial magistrate dismissed  the plaintiff’s suit  with costs  to the defendant  and Third  Party. It is  that judgment  of 26^th March 2012  that the plaintiff/now appellant is challenging  before this court through a Memorandum of Appeal dated  13^th April 2012  and filed in court  in 20^th  April  2012 setting  out seven grounds  of  appeal namely:

1. The learned  magistrate erred in law and fact in dismissing the  plaintiff’s/appellants suit while overwhelming   evidence  was tendered  in support  of the same.
2. The learned magistrate erred  in  fact and in law in finding  that the  plaintiff/appellant did  not prove his case as against the defendant/respondent.
3. The learned magistrate  erred in  fact and in law in ignoring  that the plaintiff/applicant was a passenger in the defendant’s/respondent’s   motor vehicle  and  hence would  not be held  liable or on contribution for the  occurrence of the accident.
4. The learned magistrate  erred in  fact and in law in disregarding  the plaintiff/appellant  unshaken evidence.
5. The learned magistrate  erred in  fact and in law in not applying the doctrine of Res Ipsa Loquitor  which  was  well pleaded .
6. The learned magistrate  erred in law by completely disregarding  the plaintiff/appellant  submissions on the evidence, facts  and issues  before court.
7. The learned magistrate  erred in  fact and in law in not entering  judgment  in liability, general  damages  and special damages  together with costs and interest  as pleaded, submitted and pleaded.

7. The appellant  urged this court  to allow  the appeal, enter judgment  and award general  damages, special damages  plus  costs and interest to the  plaintiff/appellant, set aside the  orders of  the learned magistrate  and award costs  of the subordinate  court and of this  appeal to her.
8. This being  a first appeal, this court is obliged   to abide by the provisions  of Section 78  of the Civil Procedure Act to evaluate  and examine the lower court  record and   the evidence before  it and arrive   at its  own conclusion.  This principle of law  was well settled   in the case of Selle Vs  Associated  Motor Boat  Company Ltd  [1968] EA 123  where Sir Clement  De Lestang stated that:

“ This  court must  consider the evidence, evaluate it itself  and draw  its own  conclusions  though in doing so it should  always  bear in mind   that it neither  heard witnesses s  and should make  due allowance  in this respect.  However, this court  is not  bound necessarily  to follow  the trial judge’s  findings of fact if  it appears  either that  he had clearly failed on some   point to  take account  of particular  circumstances  or probabilities  materially  to estimate the evidence  or if the impression  based on the demeanor  of a witness  is inconsistent   with the evidence  in the case generally(Aldul Hammad Sarif Vs Ali  Mohammed Solan  [1955,22 EACA 270].”

9. And  in the  case of Mbogo –Vs  Shah  & Another [1968] EA 93, the court  set out  circumstances   under which an appellate  court may interfere with  a decision of the trial court  as follows:-

“ I think it is well  settled that   this court  will not interfere with the exercise  of discretion by the inferior  court unless  it is  satisfied that  the decision  is clearly wrong because  it has misdirected  itself  or because  it has  acted on matters   on which  it should not  have acted or because  it has failed to  take into consideration matters s which it  should have  taken  into account   and consideration and in doing  do arrived at a  wrong conclusion.”

10. Assessing the evidence in the court below, the plaintiff testified that  she  was travelling  in a hearse  registration No.  KAY 723B heading for  burial  from Nairobi when the hearse  driver who was speeding  met a pot hole  and swerved to avoid  hitting it   and in the process  collided   with an  oncoming motor vehicle  KBA 587H Nissan matatu.  That there  was a yellow  line and  the hearse   had left its lane.  The driver could not slow down  to avoid the pot hole.  The  hearse  was  damaged on the windscreen, driver’s side mirror and back panes.  A glass splinter  injured her left  eye.
11. The plaintiff maintained in cross examination that the hearse  driver  was over speeding  and that other occupants  in the hearse implored him to slow down and that on  impact, the matatu driver driving motor vehicle  registration No.  KBA 587H  was properly on its lane.
12. The plaintiff also stated that she is the only one  who was injured  in that accident    and  that the  driver  was new on that road and had left  his lane to the matatu lane  when the accident  occurred.
13. The plaintiff  called PW3 Austin Osari a police officer  attached to Maragua  police station who testified that  the accident  was  reported to Maragua police station.  It involved  the two motor vehicles KBA  587H hearse and   a matatu.  He stated  that the driver of the  hearse Peter Muiruri, had admitted  being in the wrong  and  also admitted liability by  signing  an agreement undertaking  to repair the other motor vehicle.  PW3 produced  a police abstract  as an exhibit.  He conceded  that he  was not  an eye witness and that the police  abstract  showed that  the case was pending  under investigations but that  the police  had closed  the file.  He also stated that  the accident  was reported  as non injury but  later the  complainant  went to  claim that  she had been injured and a P3  was issued  on 28^th October  2009.
14. The defendant  and third  party filed defences  denying the claim but   did not  call any evidence.  The trial magistrate at page  5-6  of the judgment  found that  the plaintiff  had not proved her  case on a balance of  probabilities  and dismissed  her case  and assessed  quantum of damages  at  shs  300,000 general damages  and shs  17,720 special damages.  He  awarded costs of the suit  to the defendant and the  third party.
15. Being dissatisfied  with that  judgment, the plaintiff  filed this  appeal.  The parties  advocates in this appeal  which  was admitted  to hearing  on 12^th October  2015  and directions  given  on  13^th November  2015 agreed  to have the  appeal canvassed  by way of  written submissions within the  given  time lines but as at  the time  of writing  this judgment, only  the appellant’s counsel filed their  submissions   dated 8^th February  2016.  The respondents never filed  any submissions  for consideration, in opposition  of this  appeal.  The appeal  is therefore  unopposed and so I shall proceed to  determine the  issues that  flow from the 7 grounds  of appeal and the submissions filed by the appellant’s  counsel  vis a vis  the evidence  adduced in the lower court as reviewed  herein, and  the authorities  relied on.
16. The appellant  urged the court  to consider  two issues namely,

1. Did the learned magistrate misapprehend the evidence  presented  before him
2. Did  the learned magistrate  misapprehend   the law applicable?

17. In answering the first question as to whether  the learned magistrate  misapprehend  the evidence before  him as  presented, the appellant submitted that had the trial magistrate correctly  apprehended  the evidence presented before  him , as opposed  to him speculating, he would  have found  that :- an accident  occurred on 19^th September 2009 along the Kenol- Muranga road near Kwa Muguruki; that the appellant/plaintiff  being a passenger  in motor  vehicle KAY 723B witnessed the accident  and gave  a clear account  of how the same occurred; that the appellant  blamed the driver of KAY 723B for  the occurrence of the accident; that  not all passengers  in a motor vehicle  that  is involved in an accident  must be injured; That  the driver of KAY  723B hearse  admitted liability and  entered into an agreement  with KBA 587H matatu on liability. That  there  was no evidence that the hearse  was tinted  or at all or  that it  was tinted in such a  manner that the appellant  would not  see outside  the hearse and that a tint  only bars  a person from  outside  seeing those  inside  and not the  other way; that the plaintiff as an  adult   did not need  her evidence  to be corroborated  by an adult  since she  was a credible  witness and that  her evidence   was not challenged; that  the appellant  did not need to be  a driver to as to tell  if a vehicle   was being driven at high speed; the plaintiff did not  have to produce  sketch plans, a police file for  an accident whose occurrence  was admitted; and that the  1^st respondent  and 3^rd party  2^nd respondent did not  lead  any evidence   rebutting the plaintiff/appellant’s case.
18. The appellant  relied on  HCC 1162 of 2002  Robert  Gichuhu Maina V John Kamau citing Msuri Muhhiddin  V Nazzor  Bin Serf El  Kassaby &  Another [1960] EA 201  where it   was stated :

“  The  speed  of a vehicle  in relation to the particular road  conditions  was a most material factor  and one which normally  was within  the control of the driver and  there  was certainly a duty on a driver to keep a proper  look out  to ascertain the condition of the road  and to adopt  the speed of the vehicles to it”.

19. It  was therefore  submitted  that from the evidence adduced by the  appellant, it   was clear that  the  1^st respondent’s  vehicle   was over speeding; the driver could not  control the  vehicle so as to avoid  hitting a  pot hole; the driver instead of slowing  down tried to swerve and caused a collision with motor vehicle  KBA 587H; the  1^st respondent’s motor vehicle  left  its lane  and encroached on KBA 587H; the appellant could see  the road  ahead  of her; the driver  was not familiar  with the road; he  had been requested to slow down but declined; and that he had  admitted having  caused the accident and  undertaken to repair motor vehicle Registration No. KBA 587H.
20. In the appellant’s view, liability was proved and the judgment should have been entered in her favour.  She urged this court  to upset  the trial magistrate’s  decision and  find the  1^st respondent  liable.
21. On the second  issue of whether  the trial magistrate misapprehended  the law  applicable, it  was submitted  by the appellant’s  counsel that  the standard  to be applied  by a  prudent  driver is  that established in the case of  Boniface  Waiti & Ellen  Waithira V Michael Kariuki  Kamau as cited in Embu Public  Road Services V Riimi [1968] EA 22. The appellant  submitted that the  trial magistrate  imposed  a  burden that  was outside  the well established  standard  in Embu Public  Road Services  V Riimi Case (supra).  It  was  submitted that  the appellant  gave the  probable  cause of  the accident  attributed to the negligence of the driver  of the hearse  and the driver of the hearse did not  lead any evidence  to show  how the accident  could not  have been avoided.
22. The appellant  further submitted that the trial  magistrate made  presumptions which he  turned to presumptions and  thereby misdirected himself and seriously  erred on issues of law by  taking judicial  notice of  matters outside  those specified  in Section 60 (1) (a)  to (o)  of the Evidence Act.  In particular, it  was submitted that  the trial magistrate assumed  that  all hearse  vehicles   are tinted   which  was not the case and  also  assumed that if   a vehicle  is tinted then  its occupants  cannot see outside which is  the opposite  of the factual position and that therefore  those are not matters  which judicial notice  could not be taken.
23. The appellant   further submitted that the trial magistrate erred  in law  in failing to apply the  doctrine  of Res Ipsa  Loguitur and infer that  the accident  was   caused by  the negligence  of the  1^st respondent, in the absence of any explanation by the  1^st  respondent’s  driver. The appellant  relied on HCC 48/1999 Obed Mutua  Kinyili  V Wells  Fargo  & Christian Claus Michael Walters.
24. The appellant  further submitted  that the  1^st respondent failed to seek  for directions  under Order 1 Rule  18  of the Civil Procedure Rules  on  the proper  question to be tried as  to the liability of the 3^rd party  and neither did  he adduce any  evidence  to prove any liability  against the  third party  hence the  case fell wholly  on the 1^st respondent.
25. The appellant’s  counsel also  relied  on their submissions  filed in the  lower court and prayed  that this appeal be  allowed and  judgment be  entered in favour  of the appellant  with costs.

Determination

26. I have carefully considered the  appeal herein as  filed, the grounds of  appeal, the evidence as adduced  by the appellant  and her  witnesses in the  lower court, the parties advocates  respective  rival submissions  both in the lower court and the  appellant’s  submissions before  this court together with the  authorities   relied on and the relevant statutory and procedural law.
27. From my analysis of the  evidence  and  trial record as a whole, in my humble view, the main issues  for determination  in this appeal  are:

1. Whether there was an accident on the material date involving the appellant and the two pleaded  motor vehicles and whether the plaintiff was injured as a result of the material accident?
2. Who was to blame for the material accident?
3. Whether  the trial magistrate   erred in law and  fact in dismissing the  appellant’s suit  with costs  on the basis that she had not proved  liability  against the  1^st respondent  on a balance of  probabilities .
4. What orders  should this court  make and 
5. Who should bear  the costs of the case in the lower court   and of this appeal.

28. I shall determine the above issues together and systematically. The law is trite that it is he who alleges   that must prove.  This is a principle  that is espoused in  Section 107-109 of the  Evidence Act, Cap 80 Laws of Kenya. In addition, the Court of Appeal in Nkube V Nyamuro [1983] KLR  403 has made it clear  that:

“ A Court on Appeal  will not normally interfere with the finding of  fact by  a trial court  unless  it is  based  on no evidence, or on a  misapprehension  of the evidence, or  the judge  is  shown  demonstrably to have  acted  on wrong principles  in reaching his conclusion”.

29. Nonetheless, the Court of Appeal  in the above  Nkube  V Nyamuro  case made it clear that  the  appellate  court is not bound by  the trial court’s  finding of fact  if  it appears that   either it  failed  to take into account  particular  circumstances  or probabilities, or  if the impression of the demeanor  of a witness is  inconsistent  with the evidence  generally. In Ndiritu V Ropkoi & Another  the Court of Appeal  was clear that the appellate  court should  be slow to differ with the trial  court and  should only do so  with caution and with  cases  where the  findings  of fact  are  based on no evidence, or a  misapprehension  of evidence, or where  it is  shown that  the trial court  acted on wrong  principles  of law in arriving at  the findings he did. The above principles  were  also  restated in Mwangi & Another Vs  Wambugu [1983] 2 KLR  100.
30. On whether there was an accident subject matter of the suit in the court below and in this appeal, it is an undisputed fact as evidenced  by the testimony of the appellant   and the police  officer who  testified  that an accident did occur, one of a  collision involving  two motor  vehicles  one belonging  to the 1^st respondent/defendant  and the other to the  2^nd respondent/ Third Party.  This accident was reported to the police  as shown by the Police abstract produced in evidence as an exhibit. It is  also not  disputed that  the appellant herein   was a passenger  in the  1^st respondent’s motor  vehicle  registration No.KAY 723B which  was  a hearse  transporting  a deceased  body  to his final  resting  place  when the accident occurred.
31. The 1^st respondent denied  in his defence the occurrence of the accident as  pleaded by the appellant but in the alternative  pleaded  that  if at all such accident  occurred then  it  was due to the negligence of the  3^rd party/2^nd respondent.  He also set out particulars  of  3^rd party’s negligence and issued  him  with a  third party notice.  The 3^rd party  filed defence  denying all  those particulars  of negligence attributed  to him by the  respondent.  However, it should  be noted that  whereas the appellant  testified  in court and  gave a detailed  account of how  the material accident  occurred,  the 1^st respondent  never adduced     any evidence in defence  to challenge  the appellant’s  evidence  which  was  given  on oath.  In addition the  1^st respondent  despite  pleading  that the  accident  was  caused by  or substantially  contributed to by the  2^nd  respondent/ 3^rd party, he never  attempted  to give any evidence  to prove the  negligence  of the 2^nd respondent/ 3^rd party.
32. In this case, although no third party directions  were  given, it   was the responsibility  of the appellant  to prove the  negligence  of the  1st respondent  whom she  had sued  and  in the same  vein, it  was   the responsibility of the  1^st respondent  to prove  how the 2^nd respondent/3^rd party   was responsible  for the occurrence of the material accident, and or that he substantially contributed to the occurrence  of the said accident.
33. In the absence of any evidence  by the  1^st respondent on how the accident could have been caused by the 2^nd respondent, this court is only left with  the evidence  of the plaintiff  tending  to prove her  case on  a balance of  probabilities  which  is the standard  of proof  required   in civil cases.
34. Thus, although  the 1^st respondent’s  counsel seriously submitted in the lower court urging it  to discredit  the evidence  of the appellant/plaintiff, this court  does not find those  submissions  building  the defence case  for the  1^st respondent.  It is trite law that pleadings and submissions are  not substitutes for  evidence.  They are  allegations  which are not  made  on oath  and therefore remain  mere allegations which are not  substantiated.  This is a principle  which  was   enunciated in the case  of Daniel Toroitich  Arap Moi V Mwangi  Stephen  Muriithi & Another [2014] e KLR  where  the Court of Appeal  in CA  240/2011Nairobi  stated as follows.

“…………the first  respondent had failed  to prove his claim by evidence.  What appeared in submissions not come to his aid.  Such a course only militates against the law  and we are  unable to  counterpane it.  Submissions   are generally parties “marketing language” each side   endeavouring  to convince the court that  its case  is the better  one.  Submissions, we reiterate, do not  constitute  evidence at all.  Indeed, there are many cases  decided  without hearing  submissions but based  only on  evidence  presented………”.

35. On the effect of failure to call evidence to rebut  the plaintiff’s  case and   testimony this court notes  that although it  is the primary responsibility of the plaintiff  to prove her case against   the defendant  on a balance of probabilities, even  where the case proceeds by way  of  formal proof, as espoused  in  Sections 107,108 and  109 of the Evidence Act, Section  108 thereof  provides that the burden of  proof  in a suit  or proceeding  lies on that person who would  fail if  no evidence  at all were given   on either side.  Under Section 109, 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 be on  any particular person.
36. Therefore, the above  provisions require  the plaintiff claimant to  prove by way of oral or documentary   evidence how negligent defendant  was in the manner in which his  motor  vehicle/hearse   was being  driven  at the material  time by his  agent/servant/employee, giving rise to  the accident thereby injuring the  plaintiff.  On the other hand, it is  incumbent  upon the  defendant  to lay before the court evidence  on a balance of  probabilities  to prove how  the material accident   was caused b y and or  substantially contributed  to by the  negligence of the third party in order for the court to find  for the defendant.
37.  The detailed  uncontroverted evidence as adduced  by the appellant    is clear that  the driver of the hearse  who  was new on that road, was driving extremely fast and hitting  pot holes.  The appellant  and other passengers  in the hearse called  on the driver to slow down but  he could hear none of it.  He continued speeding  and  as he  was avoiding a pot hole, he left  his lane, swerved to the opposite lane and met an oncoming matatu  and  as a result a collision took  place.  After the accident, the driver  of the hearse came out  of the hearse, admitted liability and  wrote an agreement  with the driver  of the matatu whereby the hearse driver undertook to repair  the damaged  matatu.  The plaintiff was  injured  when broken glass entered her eye.  That is the summarized version  of the appellant’s case  in the lower court, which  evidence  was not controverted.
38. In my humble view, the trial  magistrate  ‘invented’ his  own evidence  upon which he based  the decision.  I say ‘invented’ because  there  was no evidence  that the hearse   was so tinted that the  plaintiff  could not see  the outside  of the motor vehicle  since she  had been seated at the cabin   where the coffin was.  The  idea of it being  “common knowledge  that hearses  are normally  constructed  in such a  way that  the windows at the coffin cabin  are tinted  making it  impossible  for an  onlooker  to purview  the coffin inside the hearse or the occupants  therein” and  that since  the plaintiff   was not a driver  posed the question as to what  led to her concluding that the vehicle  was  over speeding” and that because “she  was nowhere  near the driver’s cabin she could not tell at what speed  the vehicle  was travelling”  was , in  my humble view, farfetched  conclusions  which  were not supported  by any facts on  record, evidence as adduced  and  or any known  law of the land.
39. I have carefully  examined the  plaintiff’s  testimony and the  testimony of PW3 No. 78833 PC  Austin Orari, I do not find anywhere in  their  evidence whether in chief   or in cross  examination  where they gave the description of the  hearse or even  mentioned that it  was  tinted.  This court  is also not  aware of  any known common  knowledge  that all hearses  are normally tinted  therefore  the passengers  in the cabin  and the  passengers   therein being incapable of seeing  outside.  That assumption by the trial magistrate, in my view  was unsupported  and  wholly erroneous and  I reject it and upset it forthwith.  This is so because according to PExhibit 7 copy of records, motor vehicle  KAY 723B is a Toyota minibus  matatu blue  in colour. Therefore, where did  the trial magistrate  get the idea that the hearse  was tinted? 
40. Further, there is no known  fact or  law that if one is not the driver then they  cannot tell  whether  or not a motor vehicle  they are travelling  in is  moving very fast.  That  conclusion by the trial court, in my view, was an erroneous conclusion that was not supported by any evidence on record. I therefore set aside that finding.
41. Further, there  was no evidence to  counter the  plaintiff’s  evidence that  she  saw  pot holes  on the road and that the driver was new on that road. There was also no rebuttal of her evidence that the driver drove very fast as he avoided potholes on the road.  The evidence by the plaintiff   was very vivid and detailed.  In my view, that kind of evidence   can only come from a person who saw or heard.  The defendant did not attempt to provide a different version of how and why the accident occurred, different from the version given by the plaintiff.
42. I further  find that the trial magistrate’s  conclusion that failure to produce a  note wherein the driver of the hearse admitted liability  and the police  file  were not produced thereby forming the basis for dismissing  the plaintiff’s suit  with costs  was an erroneous  conclusion. This is so because the standard of proof required in civil cases is that of on a balance of probabilities and not beyond reasonable doubt.
43. Further, it  was not  demonstrated that the plaintiff’s  claim  against the  defendant  wholly depended  on the production  of the note where  the hearse  driver admitted liability and the police file. The court is entitled, in my humble view, to decide the case on the basis of the evidence adduced and find whether that evidence   meets the standard required in civil cases.
44. In addition, it  was  not shown  that the plaintiff deliberately avoided to adduce/produce  the note on  admission of liability  by the defendant’s driver or the police file  in order for the  court to make an  inference  that had the  plaintiff produced  those documents, that evidence would  have been adverse  to her.
45. In my humble  view, the  evidenced adduced by the  plaintiff  in the lower court, taken as  a whole, was sufficient  to prove on a balance  of probabilities  that the driver  of the hearse   was over speeding, that he left  his lane and  encroached on the  3^rd party  oncoming  vehicle’s lane and  that he collided  with the  oncoming vehicle.  I also find that it is not sketch plans that would have conclusively determined the liability of the defendant for the material accident.
46. Furthermore, a police abstract is a public document extracted from an accident report made to the police.  Although  the trial  magistrate claimed  that PW3  relied on hearsay evidence, I beg to differ in that PW3  was clear  in his testimony that he received summons  to produce  a police abstract  issued to the  plaintiff at  Maragua  police station regarding  an accident that had  occurred along Kenol-Muranga road at Kwa Muguruki involving  two vehicles KAY  723B hearse  and KBA 587H PSV  matatu.
47. Such details are undoubtedly those that are normally recorded  by the police  who receive  accidents reports.  PW3 did not  have to be an investigating officer in order  for him to produce  abstract form which is an extract  of a public record  of a report  of an accident  received  by the police, since police officers do not serve in the same police stations on a permanent basis.  In my view, it was sufficient, in this case, that PW3 produced  a police abstract  report of the  accident  whose details as  to how the accident occurred   were narrated  by the plaintiff/appellant  in her evidence in  chief and  which  evidence    was not even shaken during cross  examination.  Neither did the  defendant  provide  his different version of how the material  accident  occurred   from the plaintiff’s   version and or how   the third party  was responsible  for the  accident.  In any event, the plaintiff  having been  a passenger, the sketch plan by the police would  only have   indicated  the point of  impact  following  the collision  between the two motor vehicles, and  would only have  assisted  the court   to determine the level of contribution  if any  from the third party.  Thus, that evidence  of a sketch plan would have  been only  useful  for determining  the extent  to  which the  third party contributed  to the material accident since  the plaintiff’s  evidence wholly  points to the defendants driver  as the one whose  negligence  was responsible  for the material accident. Furthermore, evidence of contribution could only assist the defendant in shifting part of the liability. The defendant chose not to adduce that evidence to assist him. In Embu Public Road  Services Ltd  V Riimi [1968] EA 22 the court stated that

“…….where the circumstances  of the accident give rise to the inference of negligence   then 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……”

48. In this case, I reiterate  that the  1^st  respondent  chose not to  advance  his theory of how the accident occurred or that  there  was a probable  cause of the  accident which did not connote  negligence or even an  explanation   for the accident  consistent  only with  an absence of  negligence on  his part. In Nandwa  V Kenya Kazi Ltd [1988] KLR  488, the Court of Appeal stated that:

“ …..In an  action for  negligence,  the burden to prove that the  accident  was caused by the negligence   of the defendant.  However, if  in the cause  of that  there is  proved a set of facts  which raises  a prima facie inference  that the accident  was caused by  negligence  on the part of the defendant, the issue will be decided  in the plaintiff’s favour  unless the  defendant’s evidence  provides some answer  adequate  to displace  that inference….”

49. This court in finding that  the plaintiff’s  evidence, prima facie  and on a balance of  probabilities  proved that the defendant/1^st  respondent  was negligent  adopts  the holding by the Court  of Appeal in Kenya Bus  Services Ltd V Dina Kawira Humphrey CA 295/2000 where the Court of Appeal  observed, quite  accurately that :

“ Buses, when properly maintained, properly serviced and properly driven  do not just  run over bridges  and plunge into rivers  without any  explanation.”

50. In this case, there  was an  accident involving  two vehicles which collided.  The plaintiff  has elaborately described  how  the accident  occurred, laying full  blame upon the defendant.  The defendant  has not given  any explanation  which could  exonerate  him from liability.  In that case, even the doctrine of Res Ipsa Loquitur  would  be applicable.
51. It is  on the basis of the above analysis that I find  that it is necessary  to interfere  with the findings  and decision of the trial magistrate on the liability  of the  1^st  respondent.  That  decision  by the trial magistrate was in my humble  satisfactory  view, clearly wrong  because the trial magistrate  misdirected  himself  and  made  wrong  inferences  which he  ought not to have made  and failed to consider  matters  which he  ought to have  considered or taken into account and in so doing arrived at  wrong decision.  Accordingly, I allow this appeal, set aside the judgment of the trial court on liability and substitute  it with  judgment  for the plaintiff/respondent  on liability against  the 1^st  respondent  at 100%.  He is vicariously  liable for acts of  its driver, agent/servant. 
52. On whether  the plaintiff  was injured  as a result of the  material accident, the plaintiff testified   that upon the two motor  vehicles  colliding, the broken  glass (glass splitter) injured her left eye.  She nonetheless proceeded  to the funeral  after which she  proceeded  to hospital where she  was cleared and referred to Kenyatta  National Hospital.  She  produced hospital  treatment  notes P exhibit  is a treatment  note from Muranga District Hospital.  It is  dated 19^th September 2009, on the same  day of the  accident.  On 21^st September  2009 she  was admitted at  Kenyatta  National Hospital  and discharged  on 23^rd September  2009  and the problem   was eye piercing.
53. Although PW3 stated that  initially the report of the accident  was a non  injury one, it  was  clear that the plaintiff proceeded  to hospital the same day of the accident and later returned  to the police at  Maragua where she   was issued with a P3 form and a police  abstract.
54. The plaintiff sustained a corneal laceration(perforation) of her left eye.  She had to undergo an operation.  She  lost nearly all vision in the injured  eye.  She uses  an artificial lens.  The plaintiff is satisfied  with the award of general  damages  awarded by the trial magistrate  had he found the defendant  liable.  In the end, the sum of shs 300,000 general damages for pain and  suffering and  loss of amenities  assessed  by the trial magistrate is sustained and upheld. I also uphold special damages  of shs  17,720 awarded.  I further award the  plaintiff/appellant  costs   of the suit in the lower court  and costs of  this appeal to be paid  by the 1^st respondent only.
55. I further  award her  interest  at court rates  on general damages  from 26^th March 2012  the date of  judgment  in the lower court.  Interest on special damages at court rates  is awarded  from  the date  of filing  suit in the  lower court until payment in full.

Dated, signed  and delivered in open  court at Nairobi this  12^th day of July, 2016.

R.E. ABURILI

JUDGE

In the presence of  Miss Mwaniki  h/b for Makumi for appellant

N/A for Respondents

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