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Court of AppealDismissedCivil Appeal No. 142 of 2012· [2017] KECA 781 (KLR)

Samuel Griffith Kyalo Mutuku v Evans Keraka Mokamba

Court of Appeal
23 February 2017
RNR. N. NambuyeHOH. M. OkwenguPKP. O. Kiage
2,292 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld an 85/15 liability split in a road accident, confirming trial judges' credibility findings are rarely disturbed on appeal.

What this practically means

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Executive summary

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The Court of Appeal (Nambuye, Okwengu and Kiage, JJ.A) dismissed a first appeal against the judgment of Maraga, J in Nakuru HCCC No. 98 of 2006, a road traffic accident claim arising from a collision between the respondent's motor cycle and the appellant's motor vehicle on the Nakuru-Nairobi road on 12 August 2003. The trial judge had apportioned liability at 85% against the appellant and 15% against the respondent, awarding general damages for pain and suffering of Kshs.2,500,000, loss of earning capacity of Kshs.3,000,000 and special damages of Kshs.613,160, less 15% contribution, netting Kshs.5,196,186 with costs and interest. The appellant, abandoning one of seven grounds, contended that the trial judge erred in the apportionment, shifted the burden of proof, disregarded PW2's evidence on the point of impact, and wrongly relied on PW3 who never recorded a police statement. The court restated the duty of a first appellate court to re-evaluate the evidence while making allowance for not having seen or heard the witnesses, and applied Sumaria v Allied Industries on when findings of fact may be disturbed. It affirmed the trial judge's credibility findings: the appellant was overtaking when the accident occurred, explaining his failure to swerve left; PW2, who merely produced the police file, could not oust eyewitness testimony; and PW3's absence of a police statement did not impugn his truthfulness. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Apportionment of liability in a road traffic accident

Holding

The trial judge's apportionment of 85% liability to the appellant and 15% to the respondent was supported by the evidence and would not be disturbed.

Reasoning

The court found the trial judge, who saw and heard the witnesses, plausibly believed the respondent and PW3 that the appellant was overtaking when the accident occurred. The appellant's failure to swerve left was explained only by the fact that he was overtaking. PW2's evidence on the point of impact was rightly rejected as he was not the officer who attended the scene.

p. 4
02

Weight of evidence of a police officer who did not attend the scene

Holding

PW2's impression of the police file could not oust the eyewitness testimonies, as he was not the officer who visited the scene and marked the point of impact.

Reasoning

PW2 merely produced the police file as an exhibit; the officer who attended the scene did not testify. His impression of the file's contents could not displace the testimony of the parties and PW3, whom the trial judge found to be eyewitnesses and truthful.

p. 4
03

Credibility of a witness who gave no statement to police

Holding

PW3's failure to record a police statement did not render his evidence untrustworthy where he gave a plausible explanation and was not challenged on being a hired witness.

Reasoning

PW3 had assisted in taking the respondent to hospital before police arrived, explaining his absence from the scene. The trial judge, who watched him testify, believed him truthful, and the appellate court found no reason to doubt that impression.

p. 4

Legal principles established

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  • A first appellate court must reconsider and re-evaluate the evidence and make its own conclusions, while allowing for the fact that it neither saw nor heard the witnesses.
  • An appellate court is not bound by the trial judge's findings of fact where the trial judge failed to consider particular circumstances or a relevant point.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Cases cited (2)

  • Farah versus Lento Agencies
    [2006] 1 KLR 123

    Where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.

  • Sumaria and Another vs Allied Industries Limited
    [2007] 2 KLR 1

    First appellate court must reconsider and re-evaluate evidence; interference with findings of fact only on no evidence, misapprehension, or wrong principle.

On appeal from
High Court
Civil Case No. 98 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and applicable appellate statute (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Griffith Kyalo Mutuku v Evans Keraka Mokamba", Case Analysis (2017). Civil Appeal No. 142 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/781/eng@2017-02-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.