Mbodze Mumbo Kaphunza & 1 other v Khatib Abdalla Mwashetani

d. That the Learned Magistrate erred in law and in fact in taking into consideration extraneous factors to hold the Respondent’s driver was not negligent and further that he was not driving the Respondent’s motor vehicle; e. That the Learned Trial Magistrate erred in law and in fact in failing to appreciate the facts and course of events as laid out in evidence by the Appellants and their witnesses as well as articulated in the pleadings and adopted witness statements; f. That the Learned Trial Magistrate erred in law and in fact in failing to appreciate that it is trite law that where a party pleas inevitable accident, the burden of proof shifts to such a party to give particulars of the alleged inevitable accident and then prove the same; g. That the Learned Trial Magistrate erred in law and in fact in failing to appreciate and apply the doctrine of vicarious liability as pleaded by the Appellants; h. That the Learned Magistrate erred in law and in fact in failing to appreciate the evidence of the Appellants, the evidence of which was and remains uncontroverted and/or unchallenged by the Respondent; and i. That the Learned Magistrate erred in law and in fact in failing to consider the submissions of the Appellants and as a result reaching a wrong conclusion. 3. They thus prayed that that the appeal be allowed with costs of the appeal and in the trial court and that the trial court’s judgement in favour of the Respondent be hereby set aside and the same be substituted with an award of this Honourable Court in favour of the Appellants on both liability and quantum. 4. Directions were taken to have the appeal disposed of by way of written submissions. Both parties duly complied with the court’s directions. The Appellants’ submissions are dated 12th December, 2023 while those of the Respondent are dated 14th December, 2023. I am grateful to both parties for the industry they put in by filing well researched submissions and cited various decided cases of this court and other superior courts. They go a long way in guiding the court in making its decision either way. Analysis 5. This Court has carefully considered the Record of Appeal, the parties’ rival submissions and the authorities cited and the only issue that falls for this Court’s determination is whether the Trial Court erred in dismissing the Appellants’ suit. 6. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence and consider arguments by parties and apply the law thereto, and, make its own determination of the issue or issues in controversy. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies. 7. This was aptly stated by the Court of Appeal in the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123 as follows: “ The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16945/eng@2024-09-20 2

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circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 8. I have perused the Memorandum of Appeal and the entire record of the Trial Court and I am alive to the fact that my task is to re-evaluate the evidence in order to establish whether or not the Trial Court erred in its findings. 9. In their plaint dated 30th September, 2022 and filed on even date, the Appellants pleaded negligence as against the Respondent, his driver, servant, employee and/or its authorized agent for among others being reckless, careless or negligent in causing motor vehicle registration number KBR 111X to lose control, veer off the road and roll several times leading to the deceased’s death. At paragraph 7 of the plaint, the Appellants enumerated the particulars of negligence on the part of the Respondent or its driver, employee, servant and/or authorized agent. 10. At paragraph 8, the Appellants pleaded that they would rely on the doctrine of res ipsa loquitor. Having considered the Trial Court’s judgement, the appeal herein stands or falls on this doctrine. Did the Appellants successfully invoke it? It is common knowledge that the Appellants in support of their case called three (3) witnesses, that is, the deceased’s widow (PW2), an eye witness (PW3) and the police officer (PW1). PW2’s testimony was only on the issue of dependency being the deceased’s widow. The key witness was PW3 since he happened to have been at the scene. 11. PW3’s testimony was to the effect that he was grazing his livestock when the suit motor vehicle passed by at a high speed. He later on heard a loud bang and he rushed to the scene only to find that the suit motor vehicle had rolled leading to the deceased’s death as well as the driver. PW1 on his part stated that the accident was caused by a tyre burst. On cross examination, he stated that no one was to blame for a tyre burst. Though PW3 stated that the suit motor vehicle was being driven at a high speed, the Trial Court did not find this testimony appealing to find in favour of the Appellants. 12. It has been held in various decisions of this court and other superior courts that it is a strong thing for an appellate court to differ from the finding on a question of fact of a judge who tried the case and had the advantage of seeing and hearing the witness firsthand (See Peters v Sunday Post Ltd [1958] E.A. 424). This court is bound by the factual findings of the Trial Court unless those findings are based on no law. No such allegation was proffered by the Appellants and as such, I am bound by the Trial Court’s observations. 13. On negligence, the court in Tread Setters Tyres Limited v John Wekesa Wepukhulu (2010) eKLR while quoting Charlesworth & Percy On Negligence, 9th Edition at p.387 observed as follows: “ …In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferred and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred…” 14. The Appellants sought to rely on the doctrine of res ipsa loquitor to base their claim on negligence. This doctrine was aptly discussed by the East African Court of Appeal in the case of Embu Public Road Services Ltd v Riimi [1968] EA 22 as follows: “ …The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16945/eng@2024-09-20 3

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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…” 15. Once pleaded, the res ipsa loquitur doctrine presupposes that a Plaintiff has discharged his or her burden of proof and in order to escape liability, a Defendant is required to demonstrate that there was either no negligence on his or her part, or that there was contributory negligence. The Appellants having pleaded the doctrine, the burden of proof shifted to the Respondent to either disprove the same or to show that the Appellants contributed to the accident. It is common knowledge that the Respondent did not call any witness in support of their defence. However, according to the Appellants’ own witness, that is, PW1, the cause of the accident was a tyre burst. 16. There was no report that was furnished before the Trial Court to demonstrate that prior to the accident, the suit motor vehicle’s tyres were defective. In fact, the witness was categorical that no one was to blame for the accident since a tyre burst can be cause by a factor of circumstances such as the road surface. Without more on the Appellants’ part, it would be onerous to disturb the Trial Court’s findings on the aspect of negligence. 17. Land Wenileydale in the case of Morgan v Sim (1857) 11, MOO P.C. 307 at P.312 was referred to in Charlesworth & Percy at P. 392 where it was observed as follows: “ …The party seeking to recover compensation for damage must make out the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot succeed…” 18. On a balance of probabilities, I do find on analysis of the evidence on record that the cause of the accident was not due to the negligence or breach of duty on the part of the Respondent. Though it was stated that the cause of the accident was a tyre burst, no evidence was led to show that prior to the accident, the tyres were defective. This could have easily been done if an inspection report showing the pre-accident condition of the ill-fated motor vehicle had been availed. I am therefore in agreement with the Trial Court’s findings on the aspect of negligence and/or causation. 19. On quantum, the law is well settled that, in deliberating on whether to interfere with the award of a Trial Court, an Appellate Court ought to take into account the following principles portrayed in Kemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No. 2) [1985] eKLR: a. Whether the trial court took into account an irrelevant factor, or b. Whether the trial court left out of account a relevant factor, or c. Whether the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16945/eng@2024-09-20 4

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20. The Trial Court noted that had the claim succeeded, it would have awarded the Appellants Kshs. 10,000/= on the limb of pain and suffering and Kshs. 100,000/= on the limb of loss of expectation of life under the Law Reform Act. In arriving at the said figures, the Trial Court considered several authorities which I find them relevant and I would have equally not disturbed the awards. 21. Under the Fatal Accidents Act, the Trial Court adopted a global award of Kshs. 1,000,000/= which I find it merited. The court would have awarded a sum of Kshs. 60,000/= as special damages. Lastly, the Appellants would have been awarded costs and interests of the suit. Though the Appellants appeal was on both on liability and quantum, all the nine (9) grounds of appeal were only on liability. 22. I am in agreement with the Respondent that though the Appellants in their final prayers had sought for the appeal to be allowed on both liability and quantum, the Trial Court’s findings on quantum had not been challenged. As such, even if I had found in favour of the Appellants, I would not have disturbed the Trial Court’s findings on quantum. It is not the court’s duty to fill in the gaps for parties. A party must with cogent evidence demonstrate how a decision was skewed against him or her. In the absence of such, the court is bound by what a party has pleaded. 23. On costs, the same follows the event. Though the appeal fails, this court reserves its discretion as to the award of costs. I thus proceed to exercise my discretion by ordering that each party shall bear own costs. 24. The upshot of the foregoing is that the court renders itself as hereunder: a. The Appeal lacks merit and the same is hereby dismissed; and b. Each party to bear own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 20TH DAY OF SEPTEMBER, 2024. ......................... F. WANGARI JUDGE In the presence of; Mr. Ganzala Advocate for the Appellants; Ms. Vanani Advocate for the Respondent; Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16945/eng@2024-09-20 5

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