Duncan Muema Nduku v Victor Nzioki Mbithi

3. b. That the learned Magistrate erred in law and fact by totally disregarding the Appellant's/ Claimant's evidence in chief, Cross-examination, and Re-examination thereby arriving at an erroneous decision. c. That the learned Magistrate erred in law and fact in finding that the evidence of the Appellant's/ Claimant's mother was not sufficient to prove liability against the Respondent as she did not witness the accident. c. That the learned Magistrate erred in law and fact in finding that in absent of an eye witness and or corroborative evidence, the Appellant had not proved his case on a balance of probability. c. That the Honourable Magistrate erred in law and in fact in finding that the Appellant's/ Claimant's mother did not show how she found out the details of the subject vehicle thereby arriving at an erroneous decision in light of the evidence presented before the subordinate court. Parties put in written submissions to dispose of the appeal which submissions I have carefully considered. Issues for Determination 4. The main issues for determination are:a. Whether the Appellant/Claimant proved his case on a balance of probability. b. If the court finds that the Appellant/Claimant proved his case on a balance of probability, it will proceed to determine the damages payable to the Appellant/Claimant. The Law 5. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “ …..this 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, this 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 into account of particular circumstances or probabilities materially to estimate the evidence.” 6. In the case of Abok James Odera t/a A.J. Odera & Associates vs. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, it was held in part that:“ This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 7. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles: a. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14336/eng@2025-05-07 2

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b. That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and c. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether the Appellant/Claimant Proved His Case on a Balance of Probability. 8. On perusal of the Statement of Claim dated 20th December 2023, the cause of action arose from a road traffic accident that occurred on or about 19th November 2023 when the Appellant was riding his bicycle along Kangundo Road, Machakos near Tala High School when motor vehicle registration number KCR 072T was so negligently and carelessly driven, managed and/or controlled by the Respondent that it hit the bicycle from behind thereby causing the accident. The Appellant sustained a Fracture of the let radius bone and claimed for general damages and special damages of Kshs.6,150/=. 9. The Appellant in his submissions addressed the merits of the appeal. I proceed to look at the merits of the said grounds. 10. The Appellant contends that the Honourable Magistrate/ Adjudicator decided his Claim against the weight of evidence and erroneously found that the evidence of the Appellant's/ Claimant's mother was not sufficient to prove liability against the Respondent as she did not witness the accident and further that in absent of an eye witness and or corroborative evidence, the Appellant had not proved his case on a balance of probability. 11. The Respondent on the other hand, submitted that the Appellant asserts that the trial court erred by finding that the case was not proven on a balance of probabilities. The court correctly held that the claimant failed to provide sufficient evidence to meet the threshold of proof. Section 107(I) of the Evidence Act provides that the party who desires any court to give judgment as to any legal right must prove the existence of the facts asserted. 12. The Respondent reiterates that the evidence presented by the Appellant, particularly the testimony of the Appellant's mother, was inadmissible hearsay, as she was not an eyewitness to the accident. 13. The judgment aligns with established principles in Charterhouse Bank Limited under statutory management vs. Frank N. Kamau (2016) eKLR, where it was held that the plaintiff must present credible evidence that can stand on its own, even without rebuttal from the defense. 14. I have perused the record of appeal and noted that the Appellant produced a Police Abstract dated 22/11/2023, motor vehicle copy of records for motor vehicle registration No. KCR 072T, treatment notes from Gracious Lynsam Medical & Diagnostic Centre Tala, P3 form dated 20/11/2023, Medical Report by Dr. GK Mwaura dated 23/11/2023, Demand Letter and Statutory Notice both dated 6/12/2023 and duly served. 15. The evidence of the Appellant was that through the said documents, he proved that the accident occurred and he sustained the injury as pleaded. 16. The Respondent did not testify before the trial court. In her judgment, the Magistrate/Adjudicator cited the case of Charterhouse Bank Limited (supra) where the court had occasion to consider the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14336/eng@2025-05-07 3

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burden of proof of the plaintiff where the defendant failed to adduce evidence. The court stated in that case:“ We would therefore venture to suggest that before the trial court can conclude that the plaintiff's case is not controverted or is proved on a balance of probabilities by reason of the defendant's failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to crossexamination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves he claim. Without such evidence. the plaintiff is not entitled to judgment merely because the defendant has not testified." 17. The legal burden of proof in a civil case was discussed in the case of Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR where the court stated as follows: “ As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given by either side.” 18. The question then is what amounts to proof on a balance of probability? Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 stated that: “ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 19. In the case of Janet Kaphine Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No 68 of 2007, the court held that:“ In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the plaintiff and that of the witness remain uncontroverted and the statement in the defence remains mere allegations...Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support by way of evidence". 20. I have perused through the proceedings before the trial court and I notice that the Appellant’s mother and the Doctor testified and were subjected to cross-examination but I don’t find that the evidence adduced by the two witnesses to have been thoroughly discredited The issues as to whether the accident occurred and whether the Appellant sustained the injury as pleaded and proved by the Police Abstract, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14336/eng@2025-05-07 4

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the P3 form, the Medical report were not discredited at all. The Appellant’s mother was also able to produce the copy of motor vehicle records which confirmed the subject vehicle of the accident to belong to the Respondent. The Respondent did not rebut the fact that the motor vehicle belonged to him, the accident occurred and that he took the Appellant to hospital after the accident. 21. The Charterhouse Bank Limited (supra) case cited by the trial court is distinguishable from the instant matter and I am of therefore convinced that the Appellant proved his case on a balance of probability. 22. In essence, I agree with the Appellant that the Respondents’ strategic decision to not call witnesses leaves their defence unsubstantiated, rendering it mere allegations with no supporting evidence. 23. It is my conclusion that, given the weight of unchallenged evidence against the Respondent and the precedent set in the Appellant’s cited cases, this court finds that the Appellant proved his case against the Respondent on a balance of probability. The Respondent did not controvert the Appellant’s claim particularly on ownership of motor vehicle registration No. KCR 072T, the occurrence of the accident and the injury sustained by the Appellant. 24. I therefore find and hold the Respondent wholly liable in negligence in the occurrence of the subject accident in this matter. The court having found that the Appellant/Claimant proved his case on a balance of probability, it will proceed to determine the damages payable to the Appellant/Claimant. Quantum 25. The Learned Magistrate/Adjudicator stated that despite finding that the Appellant had not proved his case on a balance of probability and dismissed it, she still proceeded to assess the damages she would have awarded had the claim been successful. 26. The medical report shows that the Appellant/Claimant sustained fracture of the left radius bone. 27. The trial court relied on the case of Ndung'u & Another v Munene as quoted by the Claimant which had an award of Kshs.700,000/=, with related injuries and in light of the above authority and while taking into consideration the inflation rate, opined that an award of Kshs.700,000/= would have been sufficient to compensate the Claimant. 28. On Special Damages, the Claimant pleaded and produced receipts of Kshs.6.150/= in support of the same and the trial court would have awarded it. 29. The conditions that have to be met before an Appellate court can interfere with the trial court’s discretion in assessment of damages were outlined in the case of Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another Civil Appeal No 21 of 1984 [1985] eKLR thus: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” 30. Guided by the above decision, I see no justifiable reason by this court in disturbing the quantum of damages that the trial court would have awarded. 31. By reason of the premises hereinabove, I allow the Appellant’s Appeal and enter Judgment as follows:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14336/eng@2025-05-07 5

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32. a. The learned trial Magistrate/Adjudicator’s Judgment delivered on 15th April 2024 is set aside and in place thereof, this Court enters Judgment on liability at 100% against the Respondent. b. General damages of Kshs.700,000/= and Special damages of Kshs.6,150/=are awarded to the Appellant. c. Costs of this Appeal, and those for the Small Claim’s Court Case shall be in favour of the Appellant. d. Interest on the awards under order (b) above shall be at court rates from the date of this judgement till full payment. e. There shall be 30 days stay of execution. f. This file is closed. Orders accordingly JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 7TH MAY, 2025. DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 7TH MAY, 2025. .............................................. NOEL I. ADAGI JUDGE In the presence of : Ms Kinyua...................... for Appellant Mr. Kirui........................ for Respondent Milly............................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14336/eng@2025-05-07 6

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