Chebet Emily Cheruyoit & 1 other v Leah Wairimu Mburu & 2 others

3. By a Defence dated 04/08/2017, the 1st Appellant denied the Claim and pleaded contributory negligence against the 1st Respondent and the rider and prayed that the 1st Respondent suit be dismissed with costs. 4. The Appellants took out Third Party proceedings against the 2nd and 3rd Respondents claiming for indemnity and /or contribution on the grounds that, their motor cycle registration number KMCK xxxP was driven carelessly and negligently by their agent and or driver or themself that it rammed onto the rear of motor vehicle registration number KAY xxxJ along Ruiru-Ruaka Bypass. 5. The accident herein was caused by the negligence of the Third Parties authorized driver, servant or agent in driving, managing motor cycle registration number KMCK xxxP. 6. I have perused the record and I have not established what happened to the Third-Party proceedings. It is not clear whether they later participated in the matter or not. The trial Magistrate’s judgement is also silent on the same. I will leave it at that. 7. The matter proceeded for hearing and upon considering the parties pleadings, evidence and submissions, the Trial Court apportioned liability at the ratio of 20%: 80% and awarded the 1st Respondent Kshs.700,000/= (less 20% contribution=Kshs.560,000/=) in general damages and Kshs.14,980/= in special damages plus costs and interest. 8. The Appellants/Defendants being aggrieved by the whole of the said judgment lodged this appeal raising 8 grounds which basically challenge both liability and quantum. The Appellant’s submissions 9. The Appellants opted to sum up to the sole issue of liability which she endeavored to address in detail in her submissions and in addition to the submissions, also relied on and reiterated her comprehensive written submissions filed before the trial court for their full import. 10. The Appellants submitted on grounds 4,5,6 and 7 under the heading of Quantum. 11. On liability, the Appellants submitted that the 1st Respondent called two witnesses: PW1, Leah Wairimu –the Plaintiff/1st Respondent herein and the PW2, the police officer. PW1 stated that she was a pillion passenger on a motorcycle when the road accident occurred. That the rider rammed into the rear of the motor vehicle registration KAY xxxJ after emerging from a feeder road without care and attention and she blamed the driver of the Appellants Bus registration number KAY xxxJ. 12. The 1st Respondent /Plaintiff called the police officer who at the hearing produced only police abstract dated 11/05/2017 whose findings as per paragraph 7 confirmed that the case was pending under investigations. The police officer did not have any summons, nor OB, nor sketch maps, nor police file, neither did he know the outcome of the investigations, he stated that he did not know who was to blame as it was not in Police abstract that he was producing in court. 13. The Appellants/Defendants lead 1 witness DW1 one Police Constable Kibe. DW1 Police Constable Kibe testified that the rider without care and attention emerged from a feeder road and hit the bus from the rear of the motor vehicle registration KAY xxxJ as had been captured in the Occurrence book by the investigating officer after conducting investigations and he produced DExt.1 was a copy of the Occurrence Book entry and he went on to further testify that at the conclusion of the investigations ,the Rider of Motor Cycle KMCK xxxP according to the investigating officer and the police records , blamed for the accident .He produced DExt.2 a Conclusive Police Abstract Report blaming the Rider. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 2

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He lastly produced DExt.3 an inspection report that indicated that the point of impact was on the rear of the motor vehicle registration KAY xxxJ. 14. The Appellants submitted that from the foregoing testimonies, it is manifestly clear that the 1st Respondent did not prove her case and or any negligence by the Appellants to the required standard, on a balance of probability. They referred to Section 107 of the Evidence Act Cap 80 Laws of Kenya provides that; “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 15. The Appellants further rely on the case of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) (24 January 2022) that: “ Direct evidence is a piece of evidence often in the form of the testimony of witnesses or eyewitness accounts… The evidence tendered by the Respondent in the lower court is not direct evidence. It has no probative value and in absence of further evidence connecting it with what happened at the scene, the court could not properly draw an inference or make a reasonable conclusion as to how the accident occurred. This being the quality of the evidence tendered, there was no basis at all upon which the Magistrate court reasonably make a finding that liability had been established on 100% basis as against the appellant.” 16. They also relied on the case of Mary Wambui Kabugu vs. Kenya Bus Services Ltd. Civil Appeal No. 195 of 1995 cited in the case of Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR where the court stated :“ The age long principle of law is that he who alleges must prove. The appellant’s case in the court below was that her husband was seriously injured in a road traffic accident due to the negligence on the part of the respondent’s driver. She did not, however, adduce evidence to establish that fact or any blame on the respondent. Her evidence on the accident was simply that she found him admitted at Kenyatta National Hospital with multiple injuries and in a critical condition. She did not, of her own knowledge, know how he had sustained those injuries. The nurses who told her about the accident which gave rise to this suit were not called to testify. Nor did the appellant call any eye witness or witnesses to the accident to testify on it. She did not also call any other evidence from which some inference could be drawn as to the cause of the accident. In those circumstances the learned trial Judge was bound to come to the conclusion that he did that the Appellant did not, on a balance of probabilities prove her case. On that ground alone the appeal would be dismissed.” 17. The Appellants submitted that the 1st Respondent herein failed to prove her case on a balance of probabilities or at all as to how the Appellants could have possibly been liable for the alleged accident. 18. The Appellants further referred this court to the case of Eastern Produce (K) Limited v Christopher Atiado Osiro [2006] eKLR where it was held that:“ It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid down in the case of Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258, where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 3

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19. The Appellants also cited the case of Benter Atieno Obonyo v Anne Nganga & Another [2021] eKLR, it was stated that; “ It is trite that in civil cases the standard of proof is on a balance of probabilities which lies with the party who alleges. The law on burden of proof under Sections 107, 108 and 109 of the Evidence Act, Cap.80 Laws of Kenya places the burden of proof as to any particular fact on the person who wishes the court to believe in its existence, unless it is provided by the law that the proof shall be on a particular person”. 20. It is the Appellants submission that the 1st Respondent herein did not state nor demonstrate, in any manner whatsoever, how the 1st Appellant could have been negligent or to blame for the accident in the circumstances or at all. 21. That no evidence was adduced and or lead as to the 1st Appellant’s alleged negligence and there was no iota of evidence at all that could have warranted the 1st Appellant to be held wholly liable. They contended that no liability should be apportioned to the Appellants. 22. Without prejudice to the foregoing, the Appellants pray that this Honourable court, finds that the 2nd and 3rd Respondents/Third Parties liable for occasioning of the accident, which is not denied by themselves. 1st Respondent’s submissions 23. The 1st Respondent proposed to submit on all the grounds of appeal together. 24. She submitted that in apportioning liability at the ratio of 80% : 20% against the Defendants/ Appellants herein and awarding damages as she did, the Trial Magistrate purely exercised her unfettered judicial discretion based on the evidence placed before her. 25. That it is trite law that the exercise of judicial discretion is not to be interfered with unless it is shown that it was exercised on the wrong principal. 26. In apportioning liability and awarding damages the Learned Trial Magistrate clearly relied on the evidential material placed before her in exercise of her judicial discretion and cannot therefore be faulted. 27. The 1st Respondent relied on the case of Ratnam -vs- Cumarasamy & Another all ELR (1964) volume 3 at 933 where it was held:“ ......it was impossible to say that the discretion of the Court of Appeal was exercised on the wrong principal ........” 28. She further submitted that the burden of proving that a single Judge in exercising his unfettered judicial discretion has exercised his discretion improperly lies on the person challenging the same as was held in the case of Samken Limited & Another -vs- Mercedes Sanchez Civil Application No. 21 of 1999 Nairobi, where a Three-Man Bench of the Court of Appeal held:“ The burden of proving that a single Judge in exercising unfettered discretion conferred by rule 4 of the Court of Appeal Rules has exercised his discretion improperly lies on the person challenging the same. . . . . . .. . . . " https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 4

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29. The 1st Respondent submitted that the Appellants have totally failed to discharge that duty in their submissions and to that extent the Appeal must fail. She cited Civil Application number 204 of 1998 between Peter Mburu Echaria and Priscilla Njeri Echaria where the Court of Appeal delivered itself as follows:“ We have said on numerous occasions that the discretion conferred on a single Judge under Rule 4 is exercised on behalf of the Court and on a reference from his decision, the full Court cannot interfere with that exercise unless it is shown:- 30. 1. That in the exercise of its discretion the single Judge took into account irrelevant matters; 2. That he did not take into account a relevant factor; 3. That he misapprehended the law applicable to the situation; 4. Or that the decision is plainly wrong" In the instant Appeal, the Appellants have failed to show that the Learned Trial Magistrate did either of the above. The 1st Respondent relied on the case of Mbogo -vs- Shah (1968) EALR at pg 93, the Court of Appeal (second holding) pronounced itself thus:“ A Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that, as a result there has been misjustice." 31. On quantum, the Appellants submitted that the general rule is that, an appellate court should be slow to interfere with the discretion of the trial court in the award of damages unless the trial court is shown to have acted on wrong principles of the law, that is to say, it took into account an irrelevant factor or failed to take into account a relevant factor, or due to the above reasons or other reason, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. They cited the case of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.M.M. Lubia & Another (1982-88) 1 KAR 777 (as quoted in Ann Kanja Kithinji (suing as the legal representative of the Estate of Patrick Koome (Deceased) & 2 others v Jacob Kirari & another [2018] eKLR). 32. The Appellants submitted that the trial court did not act on correct principles of the law and did not take into account all relevant and material factors in holding and finding that the appellant was to blame for the accident. They urged this court to hold that in the circumstances of this case, the trial Court did in fact and indeed err in finding that the Appellants were liable and were to blame for the accident. 33. The Appellants submitted that this court does allow this appeal and proceed to overturn the trial magistrate’s decision since the 1st Respondent evidently did not prove her case on a balance of probability. 34. On the other hand, the 1st Respondent submitted that cited the case of Bashir Ahmed Butt -vs- Uwais Ahmed Khan (1982-88) 1 KAR at Pg 1, where the Court of Appeal pronounced itself in part that:“ An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 5

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proceeded on wrong principals or that he misapprehended the evidence in some material respect and so arrived at a figure that was so inordinately high or low” 35. The 1st Respondent submitted that the Appellants have failed to persuade this court that the Trial Magistrate was wrong in her finding on the issue of liability and quantum in her Judgement and therefore prays that the Appeal herein be dismissed with costs to the 1st Respondent. Analysis and Determination 36. I have considered the record of appeal and the itemized grounds of appeal. I have also considered the Parties’ counsel written submissions in this Appeal. 37. On the onset, I must state that the index in the Record of Appeal does not contain the Certified typed copy of the judgement and the Decree thereof and the proceedings of the trial court. In addition, save for the Plaintiff’s undated witness statement at page 27 of the record of appeal, there is no single witness statement on record before the trial court on behalf of the Defendants/Appellants. However, I have perused the record and managed to trace a copy of the judgement which was annexed as “ECE-1” to the 1st Appellant’s Supporting Affidavit to the notice of motion dated 11/7/2023 seeking stay pending appeal. I will thus consider to the said judgement in this appeal. 38. In determining the matters raised in the Appeal this court is cognizant of its duty on a first appeal as set out in the case of Selle & Another v Associated Motor Boat Co. Ltd & others [1968] EA 123 cited with approval in China 2 hogxing Construction Company Ltd v Ann Akeru Sophia [2020] eKLR. 39. As has also been restated in the case of United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A., a court sitting on appeal will not interfere with a discretionary decision appealed from simply on the ground that the court, if sitting at first instance, would or might have given different weight to that given by the court to the various factors in the case. 40. This court sitting on Appeal is only entitled to interfere if one or more of the following matters are established; first, that the court misdirected himself in law; secondly, that the court misapprehended the facts; thirdly, that the court took account of considerations of which it should not have taken account; fourthly, that the court failed to take account of considerations of which it should have taken account, or fifthly, that the court’s decision, albeit a discretionary one, is plainly wrong. On liability 41. The claim herein being an action for negligence, like in all civil litigation, the burden is always on the Claimant to prove that the Respondent was negligent. 42. I have considered the record and at paragraph 6 of the Defence the Defendant/1st Appellant pleaded and contended that the accident was caused solely or substantially contributed to by the Plaintiff/1st Respondent and the Rider of motor cycle registration number KMCK xxxP, particulars are set out thereof. 43. The judgement shows that Plaintiff/1st Respondent herein and the PW2, the police officer. PW1 stated that she was a pillion passenger on a motorcycle when the road accident occurred. It is therefore my finding that the plaintiff/1st Respondent could not have contributed to the occurrence of the accident as alleged by the Appellants. 44. The 1st Appellant submitted that the rider rammed into the rear of the motor vehicle registration KAY xxxJ after emerging from a feeder road without care and attention and she blamed the driver of the Appellants Bus registration number KAY xxxJ. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 6

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45. The Appellants further submitted that PW2, a police officer who at the hearing produced only police abstract dated 11/05/2017 whose findings as per paragraph 7 thereof confirmed that the case was pending under investigations. The police officer did not have any summons, nor OB, nor sketch maps, nor police file, neither did he know the outcome of the investigations, he stated that he did not know who was to blame as it was not in Police abstract that he was producing in court. 46. The Appellants /Defendants lead 1 witness DW1 one Police Constable Kibe. DW1 Police Constable Kibe testified that the rider without care and attention emerged from a feeder road and hit the bus from the rear of the motor vehicle registration KAY xxxJ as had been captured in the Occurrence book by the investigating officer after conducting investigations and he produced DExt.1 was a copy of the Occurrence Book entry and he went on to further testify that at the conclusion of the investigations, the Rider of Motor Cycle KMCK xxxP according to the investigating officer and the police records , blamed for the accident .He produced DExt.2 a Conclusive Police Abstract Report blaming the Rider. He lastly produced DExt.3 an inspection report that indicated that the point of impact was on the rear of the motor vehicle registration KAY xxxJ. 47. The Appellants contend that from the foregoing testimonies, it is manifestly clear that the 1st Respondent did not prove her case and or any negligence by the Appellants to the required standard, on a balance of probability. 48. As earlier pointed out, the trial courts proceedings are missing on the record of appeal as well as the position or action of the Third Parties in the matter thus making it impossible for this court to consider the same. I will never the less consider the issue of contributory negligence 49. In Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, the Court held as follows: “ In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said: “ ……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” 50. On whether the Rider herein is liable for contributory negligence. The law on contributory negligence is to apportion proximate cause and blameworthiness where appropriate. In De Frias v Rodney 1998 BDA LR 15 it was held as follows: “ Contributory negligence required the foreseeability harm to oneself. A person is guilty of contributory negligence, if she ought reasonably to have foreseen that if she did not act as a reasonable prudence person she might be hush and in reckoning must take into account the possibility of others being careless. All that is required here is that the plaintiff should have failed to take reasonable care for her own safety. I do not find that the plaintiffs conduct https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 7

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was in any way contributory negligence. In the agony of the circumstances, she made an unsuccessful attempt to avoid the collusion.” 51. What the above principle attempts to explain is that the negligence calculus is a framework for a trial court faced with such situational analysis to decide what precautions the reasonable person would have taken to avoid the harm. The classic definition of negligence given by Alderson B in Blyth vs Birmingham Waterworks Co. [1843 – 60] ALL ER 478 “ Negligence is the omission to do something which a reasonable man, guided upon those considerations with ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” 52. In my view negligence and contributory negligence comes in infinite forms and would therefore depend on a case-to-case basis. Furthermore, once the Plaintiff has established a prima facie case showing the Defendant is guilty of negligence the onus to discharge that burden in rebuttal rests with the defendant. 53. In the instant case the 1st Defendant/1st Appellant pleaded and contended that the claim was denied for the reasons that the rider rode without due attention, at an excessive speed, dangerously, carelessly, failed to wear any adequate protective apparel and failed to keep to the cyclist lane. 54. Although the 1st Defendant/1st Appellant did not prove any of the allegations of negligence against the rider, the trial court went ahead and stated that he was more persuaded to believe the Plaintiff and her witnesses’ evidence that in deed the matatu reversed and knocked down the motor cycle and caused her injuries. The trial court found that since the rider was awaiting to join the main road, he ought to have been extremely keen of his surrounding and should have at least tried to swerve or move to avoid the accident. The trial court held the Rider 20% liable for the accident and the Defendants 80% liable on a balance of probability. 55. I do not therefore find it justifiable to disturb the finding of the trial court on contributory negligence at 80% against the Appellants and 80% against the rider herein George Mwaura Gakuru. Determination on quantum 56. On quantum, the trial Court assessed general damages awardable to the Appellant in the sum of Kshs.700,000/= (less 20% contribution-Kshs.560,000/=) in general damages and Kshs.14,980/= in special damages plus costs and interest. 57. The fact of the matter of assessment of damages is purely at the discretion of the trial court of facts. The idea that an appellate Court would fundamentally differ with the trial Court is neither here nor there. That is the attention of the principle in Loice Kagunda v Julius Gachau Mwangi CA 142 of 2003 the Court of Appeal held that:“ We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence a appellate Court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons make a wholly erroneous estimate of the damages suffered. The question is not what the appellate Court would award but whether the lower Court acted on the wrong principles.” (See Mariga v Musila {1984} KLR 257). 58. This court will not therefore disturb the trial courts award of in general damages https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 8

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59. Special damages were specifically pleaded and strictly proved to be Kshs.14,980/=, the same shall not be apportioned to contribution 60. In the end, this appeal lacks merit and the same is hereby dismissed with costs to the 1st Respondent. 61. Interest is also awarded to the 1st Respondent, applicable from the date of this judgement. 62. It is so ordered. 63. This file is closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 8TH MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH MAY 2025 In the presence of : Absent........... for Appellant Absent............ ..for Respondent Milly............. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14317/eng@2025-05-08 9

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