Juma v Rabote (Suing as the legal representative of the Estate of Leonard Taabu Rabote (Deceased) (Civil Appeal E044 of 2022) [2023] KEHC 2909 (KLR) (22 March 2023) (Judgment)
Neutral citation:
[2023] KEHC 2909 (KLR)
Republic of Kenya
Civil Appeal E044 of 2022
RE Aburili, J
March 22, 2023
Between
Stephen Omondi Juma
Appellant
and
Awuor Rabote (Suing as the Legal Representative Of The Estate Of Leonard Taabu Rabote (Deceased)
Respondent
(An appeal arising out of the Judgement and Decree of the Honourable S.W. Mathenge (SRM) in the Principal Magistrate’s Court at Bondo delivered on the 31st August 2022 in Bondo PMCC 62 of 2019)
Judgment
Introduction
1.The respondent herein sued the appellant before the trial court for causing the deceased’s death following a fatal road accident wherein on the December 28, 2018, the appellant’s motor vehicle registration number KCM 275X, was carelessly, negligently and recklessly driven causing it to veer off the road thereby knocking down the deceased who was a lawful pedestrian walking along the pedestrian lane as a result of which the deceased sustained fatal injuries.
2.The appellant filed a defence denying that he was the owner of the aforementioned motor vehicle and further denied all details of the accident and instead put the respondent to strict proof thereof.
3.After hearing the witnesses’ testimonies including an eye-witness, the trial magistrate found in favour of the respondent on liability and proceeded to hold the appellant 100% liable for the accident before awarding the respondent damages all totalling Kshs 762,203.60 against the appellant.
4.Aggrieved by the said judgment and decree, the appellant filed his Memorandum of appeal dated September 3, 2022 2022 in which he raised 3 grounds of appeal namely:
5.The appeal herein which was only against liability was canvassed by way of written submissions.
The Appellant’s Submissions
6.The appellant submitted that the testimony of PW3 who claimed to be an eye witness ought to be disregarded as she was an unreliable and untruthful witness as she did not witness the accident or record her statement with the police and further that she was 50 metres away from where the accident took place.
7.It was further submitted that PW1, Inspector Maloba from Bondo Police Station was not the investigating officer and further that the police abstract produced did not blame anyone for the accident and also that PW1 failed to produce the police file in court that contained sketch maps and/or any other information that would have been integral in establishing the appellant’s liability. Reliance was placed on the case of Evans Mogire Omwansa v Benard Otieno Omolo & Another [2016] eKLR where the court held interalia that failure by the police to produce sketch plans of drawings of the possible point of impact that could have assisted the court to piece up the evidence was fatal to the appellant’s case in proving negligence against the respondent.
8.The appellant further relied on the case of Osman Ahmed Kahia v Joseph G Njoroge [2012] eKLR where the court held interalia that the respondent did not prove his claim especially on liability as against the appellant to warrant the orders to be made in his favour in a case where there was no sketch map to aid the court in determining the point of impact.
9.The appellant’s submitted that the deceased was the author of his own misfortune and was to blame for suddenly dashing into the road without due care as being an adult, he ought to have been careful.
10.It was further submitted that the respondent did not discharge the burden of proof to the required standard. The appellant further submitted that it was not enough for the respondent to allege negligence but that she had to offer evidence in support as mere assertions should and cannot stand in court and ought to be corroborated by tangible evidence.
11.The appellant further submitted that the court failed to consider the evidence tendered by the appellant on how the accident happened and thus came to an erroneous conclusion on liability based on non-existent evidence and speculation.
12.The respondent did not file submissions.
Analysis and Determination
13.Having considered the pleadings in the lower court and the grounds of appeal, I must as a first appellate court adhere to the requirements under section 78 of the Civil Procedure Act and review, reassess and reevaluate the evidence adduced in the trial court before arriving at my own independent decision bearing in mind the fact that I neither saw nor heard the witnesses as they testified. hence giving an allowance for that. The section was interpreted in the often cited case of Selle v Associated Motor Boat Co [1968] EA 123 that:
14.Therefore, this court is under a duty to delve at some length into factual details and revisit the facts as present in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial court had the advantage of hearing the parties.
15.Revisiting the evidence adduced in the lower court, PW1, Inspector Maloba of Bondo Police Station testified that he was not the investigating officer. He produced the police abstract for the material accident of 8/9/2018 along the Kisumu- Bondo road involving motor vehicle registration number KCM 275X. In cross-examination, he testified that the police abstract did not blame anyone for the accident and further that the police did not know if the deceased was drunk when he was knocked down.
16.PW3 testified that she witnessed the accident. It was her testimony that she left Bondo heading for home when she saw a tractor heading towards Kisumu and a Nissan heading towards Bondo. She testified that the Nissan was being driven at a high speed and that it left the road and hit somebody who was outside the road. PW3 testified that she reached the accident scene and recognized the deceased then called his mother. In cross-examination, PW3 testified that she was 50 metres away from the scene when the accident occurred ahead of her.
17.DW1, who was driving the accident motor vehicle testified that as he was driving the motor vehicle on the road from Kisumu to Usenge, at Opoda, he saw a lorry on the opposite side of the road with some tree branches on the road. He testified that a man emerged from the bushes and abruptly crossed the road and that DW1 was unable to stop despite applying the brakes. He testified that he hit the person who fell on the road. In cross-examination, DW1 testified that the road was a busy stretch and that the deceased crossed the road from left to right and was hit by the left side of the vehicle.
18.The Court of Appeal in Ephantus Mwangi & Another v Duncan Mwangi, Civil Appeal No 77 of 1982 [1982-1988] 1KAR 278 stated as follows regarding the finding of liability by the trial court:
19.In this appeal, it is clear that the determination of the appeal revolves around the question of liability. That the burden of proof was on the respondent to prove her case on a balance of probability is not in doubt. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
20.This is called the legal burden of proof. There is however evidential burden of proof which is captured in Sections 109 and 112 of the same Act as follows:
21.The two provisions were interpreted in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where the Court of Appeal held that:
22.In this case, it is not in dispute that the appellant’s driver hit the deceased. PW3 the eye-witness confirmed as much and her testimony remained uncontroverted by the appellant even in cross examination and now the appellant claims that the eye witness’ account is unreliable as she was 50 meters away from the scene of accident. There is no scientific evidence that a distance of 50 meters away is too far for a person to see what is happening at that range. In his testimony, DW1, the appellant’s driver testified that the deceased appeared out of the bushes abruptly and jumped onto the road. DW1 also testified that the stretch of the road was busy and that there were tree branches on the opposite side where a lorry was.
23.The Court of Appeal in Micheal Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR stated that:
24.In this case, from the appellant’s driver’s own testimony, the stretch where the accident occurred was a busy stretch and further from his testimony, it seems there was a stalled lorry on the opposite side of the road as was evidenced by the tree branches on the road warning the other road users to be careful when approaching the scene.
25.Further, the appellant’s driver testified that he tried to apply the brakes but was unable to stop. In my view this is evidence that despite the fact that the stretch of the road was busy, the appellant’s driver was speeding and failed to bring the car to a stop.
26.The testimony of PW3 remained uncontroverted and she testified that the appellant’s vehicle was speeding and that the deceased was a pedestrian walking on the side of the road who met his death after being hit by the motor vehicle after it went out of the road.
27.In Masembe v Sugar Corporation and Another [2002] 2 EA 434, it was held that:
28.Further, In the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR, this court expressed itself thus:
29.In Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:
30.That seems to have been the position in Isabella Wanjiru Karangu v Washington Malele Civil Appeal No 50 of 1981 [1983] KLR 142 and Mahendra M Malde vs George M Angira Civil Appeal No 12 of 1981, and Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] eKLR where it was held that apportionment of blame represents an exercise of a discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.
31.The appellant failed to adduce any evidence before the trial court to show that the deceased ought to shoulder some blame for the accident. Additionally, this court has not been shown that the trial magistrate wrongly exercised her discretion when apportioning liability or based her finding on liability on no evidence or the wrong principle.
32.The appellant in this case did not adduce evidence to demonstrate that the deceased ought to shoulder some blame, in view of the controverted evidence of the plaintiff’s eye witness on how the accident occurred. In the circumstances, I find that the plaintiff in the lower court proved her case on a balance of probabilities. A balance of probabilities was defined in the case of William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 as follows:
33.Applying the foregoing principle to the facts of this case, I find that there was sufficient evidence that the appellant failed in his expectation as a reasonable driver and could not have been absolved from liability in the causation of the accident and fatal injury to the deceased.
34.To this end I find that this appeal lacks merit. I uphold the finding and holding by the lower court on liability and dismiss this appeal with costs of Kshs 30,000 to the respondent.
35.I so hold.
Dated, Delivered and Signed at Siaya this 22nd Day of March, 2023R.E. ABURILIJUDGE