Jesse Githinji v Peter Mwendwa Kioko

accident upon the appellant, alleging that the appellant’s motor vehicle knocked and/or collided with his vehicle from the rear left side and caused it damage. 4. The suit proceeded by way of hearing where each party testified and adopted his witness statement and was cross-examined. 5. The appellant Jesse Githinji testified as PW 1. His witness statement dated 19th April 2022 was a replica of the plaint. He also produced as exhibits the documents listed in his list of documents being motor vehicle copy of records, motor accident claim form, invoice number 812/UAP dated 4/10/2021, ETR receipt dated 4/10/2021, satisfactory note dated 23/5/2019, Invoice dated 3/6/2019 and ETR receipt, fee note receipt 24/5/2019, re-inspection report dated 24/5/2019, vehicle repair estimates dated 29/4/2019, e-mail dated 24/5/2019, motor assessment report dated, invoice dated 29/4/2019 and photographs of the motor vehicle. 6. PW 1 called PW 2, Cpl Moses Aduol of Kasarani police station who produced a police abstract of the accident dated 23/4/2019. PW 2 said that upon investigations, the respondent was blamed for the accident as per the entry in the police abstract. 7. In cross-examination, PW 2 said that he was not the investigating officer in the case. 8. The respondent Mwendwa Kioko testified in defence. He reiterated that his vehicle was hit from the rear by the appellant’s vehicle. He therefore blamed the appellant for the accident. He said that the vehicle was not his but he was driving it at the time. 9. In cross-examination, he said that the appellant was driving behind him when the accident occurred and that the car was damaged on the rear left side. He said that the appellant said he would repair his vehicle while he would repair his. He did not reach out to his insurer for the repair of his vehicle. 10. Upon analyzing the evidence, the learned trial magistrate found that the appellant had failed to prove his claim against the respondent and dismissed his suit. 11. Dissatisfied with the learned magistrate’s decision the appellant now appeals to this court setting out some five grounds of appeal in his memorandum and praying that the judgment of the learned magistrate be set aside. The grounds are that: 12. a. The learned trial magistrate erred in law and in fact in finding the appellant equally liable for the accident completely disregarding the circumstances under which the accident occurred especially the fact that the respondent’s driver was clearly to blame for causing the accident. b. The learned trial magistrate erred in law and in fact in failing to award the appellant the sum claimed of KShs 169,880/= in special damages despite the same being specifically pleaded. c. The learned trial magistrate misdirected himself in ignoring the principles applicable and relevant authorities on liability cited in the written authorities presented and filed by the appellant. d. The learned trial magistrate erred in law and in fact in failing to award damages to the appellant and awarding costs to the respondent in the circumstances, occasioning a miscarriage of justice. e. The learned trial magistrate erred in law and in fact in failing to consider the conventional awards in cases of a similar nature. I have set out the grounds in full in order to underscore the full tenure and purport thereof because some of the grounds do not seem to be in line with this appeal. For instance, the ground alleging failure to consider conventional awards in a case of material damage as the case herein is clearly misplaced. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18295/eng@2025-11-10 2

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13. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. 14. The appellant submits, highlighting excerpts from the judgment of the trial court, that in arriving at its decision, the trial court disregarded the circumstances surrounding the accident that the driver of the respondent’s car was to blame, and arrived at an erroneous decision. The appellant submits that the occurrence of the accident was proved by the appellant’s evidence and by providence of the entry in the police abstract prepared by Cpl Naomi of Kasarani police station who attended the scene after the accident. 15. The respondent on his part submits that the appellant’s evidence demonstrated that there were no investigations by police that would have aided and brought forth cogent evidence to prove negligence in the case. 16. The respondent submits further, supporting the trial court’s judgment, that the appellant failed to establish that the respondent was responsible for the accident and thus determined that both parties were equally liable. 17. I have considered the grounds of appeal raised in the memorandum, the record of appeal, the submissions by learned counsels for the parties and the authorities cited 18. The five grounds of appeal set out in the memorandum are basically one issue being raised in so many paragraphs, that the learned trial magistrate erred in failing to give due regard to the appellant’s version of events as to how the accident occurred and in finding the case not proved against the respondent against the weight of the evidence tendered at the hearing. 19. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”. 20. In this case, the learned trial magistrate was faced with two conflicting versions of how the accident occurred. The appellant alleging that the respondent drove carelessly and negligently and changed lanes at high speed and without indication thereby causing the accident. The respondent on his part alleging that the appellant drove carelessly and caused his vehicle to ram into his vehicle from the rear. 21. It appears from the judgment that the learned trial magistrate had some difficulty in determining who between the two to believe and therefore who was to blame for the accident. He therefore made a decision to apportion liability halfway between the two. Interestingly though, even after finding that liability would be equally shared he still went ahead and dismissed the appellant’s case, stating that each party to bear the cost of repair of his vehicle. That was an error. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18295/eng@2025-11-10 3

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22. Assuming that the learned, trial magistrate was correct in his apportionment of liability, and this will be considered below, the learned magistrate then ought to have awarded half of the damages sought by the appellant to him but not to dismiss his case in its entirety. 23. The learned trial magistrate also stated that the appellant had not brought an eye witness to testify about the accident. It was not necessary to bring one when the appellant himself was the eye-witness to the accident. Section 143 of the Evidence Act (Cap. 80) Laws of Kenya is clear that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. In that case, the learned trial magistrate either believed the appellant’s version of the accident or not. As was held in the case cited by the appellant of Techard Steam & Power Limited v Mutio Muli & Mutua Ngao [2019] KEHC 6433 (KLR): “ However, proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer. Negligence can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigations officer is not necessarily fatal in accident claims.” 24. The learned trial trial magistrate, relying on the case of Netah Njoki Kamau & another v Eliud Mburu Mwaniki [2021] KEHC 2810 (KLR) (which he wrongly cited as Netah v. Martin Wanjugi Njoroge and did not provide the full citation) also found that there was no probative value in the evidence contained in the police abstract. Even then, the learned trial magistrate misapprehended the finding of facts in that case and the reason the court arrived at its decision on the police abstract. In that case, the High Court observed agreeing with the trial court that: “ The appellants did not state, as can be seen in the witness statement reproduced above, that the accident which resulted in the death of the deceased was caused by negligence of the respondent. Even the police abstract which the appellant produced in evidence indicated that the police were yet to conclude their investigation. The police, it would also seem, did not blame the respondent for the accident.” 25. In that case, there was no evidence at all to support the claim for negligence against the respondents as alleged by the appellants. That is unlike in the present case where there was evidence of an eye witness to the accident, the appellant. His evidence was supported by the evidence in the police abstract that the respondent was to blame for the accident. 26. Police investigations contained in the police abstract produced by the respondent through PW 2 showed that the respondent was to blame for the accident. Cross-examination by learned counsel for the appellant did not impeach that finding by the police. The learned trial magistrate was therefore entitled to rely upon it but he failed to do so. With two pieces of evidence showing that the respondent was to blame for the collision between his vehicle and that of the appellant it is apparent that the finding by the learned trial magistrate that the appellant had not proved his case was not supported by the evidence on record. The ground that the judgment was against the weight of the evidence is therefore valid. 27. Even if the only evidence available to the trial court was that of the appellant, it was still sufficient to prove on a balance of probability that the respondent was to blame for the accident. It is unbelievable https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18295/eng@2025-11-10 4

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as the respondent alleged that they agreed to meet the repair costs of their respective vehicles. That issue was not raised in cross-examination, if at all it arose. I find that it was not the case. It is highly improbable in the circumstances indicated by the respondent that he would have let the appellant just walk away if indeed his vehicle was the one which had rammed into his vehicle from the rear. 28. As was held in the case cited by learned counsel for the appellant, the test for standard of proof in civil cases is described in House of Lords in Re H & R (minors) [1996] AC 563, [1995] UKHL 16, [1996] 2 WLR 8, [1996] 1 All ER 1, where Lord Nicholls of Birkenhead said: “ The balance of probability standard means that the court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.” 29. Learned counsel for the respondent submits that there were no investigations carried out that would have aided in getting cogent evidence to prove the case. That submission is not true because first, the appellant said that police officers went to the scene and carried out investigations. This was not challenged by the respondent. Secondly, their investigations are supported by the entry in the police abstract that the respondent was to blame for the accident. The fact that sketches and plans of the scene were not produced cannot mean that investigations were not carried out. It only means that those were not either prepared as part of the investigations or if prepared they were not produced in evidence. The submission that the police abstract contained insufficient and inaccurate information is not backed up by any evidence. 30. I am aware that an appellate court should be slow to upset the findings of fact of the trial court. This is as per the holding of the Court of Appeal in Mwangi v Wambugu [1984] KLR 453 the court stated: “ A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding… 31. The Court of Appeal also held that: “ A member of an appellate court is not bound to accept the trial Judge's finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 32. In this case, I find that the version of events of the occurrence of the accident that was more probable was that ofiered by the appellant and not that of the respondent. The submission by the appellant and finding of the trial court that both the appellant and the respondent were equally to blame for the accident is not borne out of the evidence of either of them. It was either one or the other and I find that the blame was on the respondent and not the appellant. Therefore, there was a misapprehension of the evidence by the trial court and the findings of the trial court were inconsistent with the evidence tendered. 33. The learned trial magistrate’s finding on that issue was again not clear nor borne out of the evidence. In one breathe the learned magistrate was stating that the appellant had failed to show how the respondent was to blame for the accident so that the appellant had failed to prove his claim against the respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18295/eng@2025-11-10 5

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and the same was dismissed. In another breath the learned trial magistrate was stating that liability had to be apportioned equally. Those findings were contradictory and not consistent with the evidence tendered. 34. It is my finding the learned trial magistrate erred in his findings because there was clear evidence that the respondent bore the blame wholly for hitting the appellant’s vehicle while changing lanes without indicating and at high speed. 35. In the circumstances, I find that the decision of the learned trial magistrate on liability was in error and not supported by the evidence on record. Consequently, the same is for and is hereby set aside and substituted with a finding that the respondent was wholly to blame for the accident. 36. The trial court found that the special damages pleaded had been proved and the same would have been awarded if liability had been proved. That finding has not been challenged by the respondent. Having found that in fact liability against the respondent was proved, I proceed to find on the claim for damages that the appellant proved that he was entitled to the sum of KShs 169,880/= as pleaded in his case. 37. Consequently, I find the appeal has merit and it succeeds. The judgment and order of the learned trial magistrate is set aside in its entirety and substituted with a finding that the appellant proved his case against the respondent on a balance of probability. Judgment is entered for the appellant against the respondent in the sum of KShs 169,880/= together with interest and costs. DATED, SIGNED AND DELIVERED, ON THE VIRTUAL PLATFORM, TEAMS THIS 10TH DAY OF NOVEMBER 2025. ANDAYI W. FRANCIS JUDGE In the presence of: Ms Ochieng h/b for Manyora for the Appellant. N/A for the Respondent. Ummu h/b for Amina: Court Assistant. ANDAYI W. FRANCIS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18295/eng@2025-11-10 6

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