Purity Wambui Gachau & 1 other v Kimani Kangethe & 1 other

The Appellants’ Submissions; 4. The Appellants, being aggrieved with the Judgment of the above-named Chief Magistrate in Civil Suit No. E940 of 2021 (Milimani) Nairobi delivered on 18th July 2024 appeal to the High Court of Kenya against the whole of the said Judgment and sets forth the following grounds through the Memorandum of Appeal: 1. That learned Magistrate erred in law and misdirected himself when he failed to consider the Appellants' submissions on both points of law and fact. 2. That the Learned Magistrate erred in law and in fact in dismissing the Appellants' suit seeking for general damages, special damages of Kshs.1, 013,044.95, costs of the suit and interests thereon. 3. That the Learned Magistrate erred in law and in fact in reaching a conclusion that was contrary to the evidence placed before him. 4. That the Learned Magistrate's decision was unjust against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice. 5. That the Learned Magistrate erred in law and in fact in dismissing the Appellants `claim whilst the Respondents did not adduce any evidence to controvert the Appellants case. 6. That the Learned Magistrate erred in law and in fact after admitting there was an accident failed to award the Appellants any general damages and specific damages. The Appellants Submissions: 5. The Appellants invite this court to interfere with the trial Court findings on either liability and quantum. 6. They pray: - 7. a. That the Appeal herein be allowed. b. That the Judgment by Hon. Hosea Nganga delivered on 18th July 2024 in CMCC No. E940 OF 2021 be set aside. c. That Costs of this Appeal and of the lower court be awarded to the Appellant. d. That such further orders may be made by this Honourable Court as the court may deem fit to grant. e. It is the case that the Respondent was liable for the accident that caused the death of the deceased. They urge this Honourable Court to be persuaded by the position taken by the High Court in the case of Kamanduu Kaumba & another v Kingsway Motors [2020] eKLR where it held as follows: “ It is important to go back to the burden of proof as defined above, and in the circumstances, the court would not expect the Appellant to be at 100% proof in order to meet the burden https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19319/eng@2025-12-17 2

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of proof. What amounts to proof on a balance of probability is what Kimaru J stated in William Kabogo Gitau versus George Thuo and 2 others [2010] eKLR 526:“ 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 [morel probable than not, that the allegations he made occurred.” 8. They submit that, the Appellants adduced credible evidence, which was not controverted and proved that indeed an accident occurred and as a result of the said accident the Deceased sustained grievous injuries. 9. The Appellant called two witnesses who testified in support of his case and the injuries sustained. The witless averred that the said accident was wholly caused by the Respondents’ motor vehicle. 10. It is their submission that the police abstract was produced as evidence where it is indicated that motor vehicle registration number KCQ 663K was blamed for the accident that occurred on 1st day of June, 2020. 11. This fact was not challenged during cross examination and that implies that the Respondents were satisfied with the evidence. 12. In Joel Muna Opija -vs- East African Sea Food Ltd KSM Civil Appeal No. 309 of 2010 (2013) eKLR held that the produced police abstract confirmed the salient facts and that since no objection was raised, the facts stated therein ought to be taken as true and further and that by failing to call any witnesses or adduce any evidence in support of their defence, the evidence remain uncontroverted. 13. They urge this Honourable Court to be persuaded by the position taken by the High Court in the case of Savannah Hardware v EOO (Suing As representative of SO (deceased) 120191 eKLR (copy annexed) when it held as follows: “ Thus, the driver of a motor vehicle being driven on a public road has a higher duty of care to other road users. Had the Appellant's driver kept adequate look out and having noticed the presence of young children, he should not have driven on as if the road was clear of children. A person driving as motor vehicle is under as duty to care for other road users since a vehicle is a lethal weapon and due care is expected of him.” 14. They urge the Court to further adopt the position taken by the Court in the case of Japheth M Wepukhulu v Fred Simiyu [2020] eKLR when it held as follows: “ There is no doubt that the cardinal obligation of a Court is to establish the truth or otherwise of the facts and evidence put forward by the protagonists in a case. Only then can it arrive at a just decision by approving one party's version and disapproving the other. That is the whole essence of a trial.” 15. It is the Appellant's submissions that this Court do reverse the trial Court findings on liability and proceed to find the Respondents herein 100% liable for the accident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19319/eng@2025-12-17 3

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16. On quantum of damages, it is their case that the evidence given by the doctor is that the death was caused per the reason set out in the medical report and the doctor confirmed that the deceased sustained fractured fractures and had a blood clot in his chest which caused the death. 17. It is their case that no witnesses or doctor was called to contradict this evidence. 18. They submit that is trite law that special damages must be proved. The Appellants produced receipts in proof of the special damages amounting to Kshs. 1,012,494.95/ = and pray that the same be awarded as prayed. The Respondents' Case; 19. They submit that the appeal is deeply flawed, lacks merit, and represents nothing more than an attempt to re litigate matters that the learned trial magistrate has properly determined and urge this Honourable Court to dismiss the appeal with costs to the Respondents. 20. The trial court was presented with uncontroverted medical evidence showing that the deceased died from complications arising from his pre-existing medical conditions, specifically diabetes and hypertension, rather than from injuries sustained in the road traffic accident as seen in the Appellant's own medical witnesses and the medical documents they themselves produced in court. 21. PW 1, Dr. Cyprianus Okere, a medical expert called by the Appellant, testified that he examined the deceased and confirmed that the deceased had sustained fractured ribs and bilateral hemopneumothorax as a result of the accident. However, he also testified that the deceased died from a heart attack and hypertension. 22. Additionally, the discharge summary from the hospital and the death certificate, both produced by the Appellant also showed that the deceased was a known diabetic who died from complications related to his diabetes and hypertension. 23. Further, PW 2 Ismail Wachira, who was the deceased's brother and a layman, fervently denied that the deceased had any pre-existing medical conditions, contrary to the objective medical evidence contained in the very documents that the Appellant themselves had produced in court. 24. They submit that the trial magistrate, after carefully' analysing the evidence adduced rightfully concluded that the Appellants had failed to prove causation, the essential link between the road traffic accident and the death of the deceased. 25. The Appellants have now raised several grounds upon which they seek to overturn the trial court's judgment primarily revolving around the learned Magistrate's alleged errors in law and fact in dismissing their suit, failing to consider their submissions, failing to award damages and reaching conclusions contrary to the evidence. 26. The Appellant contends that the learned Magistrate erred in dismissing their suit, arguing that they adduced sufficient evidence to prove their case, but they failed to discharge their burden of proof. 27. The Court of Appeal in the case of Anne Wambui Ndiritu vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, held, “As a general proposition, under Section 107 (l) of the Evidence Act, Cap 80. 28. Further reliance is placed, in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 21C4R 258, the Court of Appeal stated 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/2025/19319/eng@2025-12-17 4

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29. The Appellant asserts that the deceased's death was a result of the accident, however their evidence of PW 1 unequivocally stated that the deceased died from a heart attack and hypertension. 30. The Appellants, who are alleging that the death was caused by the accident went ahead and proved the contrary, which correctly observed by the trial court when it stated, "it is unreasonable to imagine that fico different medical doctor would contain evidence of the deceased being diabetic where the not the case. 31. They submit that the Appellants’ argument that the learned Magistrate erred in dismissing their suit for want of proof is therefore unsustainable as the trial court did not disregard their evidence but evaluated it and found it insufficient to establish the necessary causal link for a fatal claim. 32. The Appellant argues that the learned Magistrate erred in discharging the Respondents of all liability basing their claims on the fact that the Respondents did not adduce any controverting evidence. However, this does not automatically mean their case is proven as it is inherently weak or lacks sufficient proof. 33. They rely on the case of Acceler Global Logistics v Gladys NasanzbuWaswa, another 2020 KEHC9074 (KLR). 34. They submit that the burden of proof to be discharged by the plaintiff is not met by the sheer absence of a defence from the defendant, and the trial court came to the decision of discharging the Respondent of all liability due to the Appellant's failure to prove causation for the fatal claim. 35. The honourable trial judge stated: "I find that the Plaintiff has been unable to prove causation linking the road traffic accident in question to the death of the deceased. 36. Consequently, the defendants are discharged of all liability, and this suit is dismissed for want of proof. 37. The Appellant is seeking damages for a fatal claim, a claim in which the trial court found was neither linked to the Respondent nor proven, as presented by their own medical expert's testimony which demonstrated that the death was due to a preexisting condition and not the accident. 38. The principle that the standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side. 39. Reliance is placed in Daniel Toroitich Arap Moi —vs- Mwangi Stephen Muriithi & Another [2014] eKLR, to buttresses this. 40. They submit that despite the absence of a defendant’s witness, leaving part of the plaintiff's testimony uncontroverted, it does not relieve the plaintiff of the burden to prove their case. 41. The Respondents' case was aided by the Appellant's witness when they stated, under oath, that the death was as a result of preexisting conditions and not the accident as alleged. 42. It is thus flawed to seek an appeal when a party jeopardises their case and is now trying to remedy their errors. 43. On this issue they submit that the trial court's discharge of the Respondents of all liability was not an error in law or fact, but the keen application of the principle of causation and burden of proof, and the claim was dismissed because the Appellants failed to prove the elements of their fatal claim. 44. The Appellants contend that the learned Magistrate erred in failing to assess the quantum payable to them, a ground that is directly contingent on the success of their arguments regarding liability and causation. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19319/eng@2025-12-17 5

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45. Since the trial court correctly found that the Appellants failed to prove causation linking the accident to the deceased's death, and consequently dismissed the suit, the issue of assessing quantum for a fatal claim becomes moot. 46. The suit was dismissed for want of proof on causation there was no basis for the trial court to proceed to assess general damages, special damages or any other form of compensation related to the deceased's death, as damages are awarded only where liability has been established. 47. The trial court, in its judgment, stated: "Upon perusal of the evidence on record I note that the deceased suffered fractured ribs and bilateral homopneumothorax as a result of the accident. However, the discharge summary and the death certificate, the deceased died as a consequence of his diabetic status, having suffered hypertension. Analysis and determination; 48. The court finds the following to be the issues for determination; 1. Whether the appeal has merit. 2. Who shall bear the costs. 49. This being a first Appeal, the court is enjoined to analyze and re-assess the evidence afresh and reach its own conclusions but always bearing in mind that it neither saw nor heard the witnesses testify. This position was affirmed in Selle v Associated Motor Boat Co. [1968] EA 123 and Kiruga v Kiruga & Another [1988] KLR 348 cases. 50. A finding on liability is dependent on the facts and evidence available and in assessing liability, the court considers causation and blameworthiness (see Isabella Wanjiru Karanja v Washington Malele [1983] eKLR). 51. The court has looked at the record and it is satisfied that indeed a road traffic accident occurred on 1 st June 2020 as pleaded by the Appellants involving the Respondents’ motor vehicle. 52. The court has further satisfied itself that from the record, the deceased was involved in the accident. 53. The medical report by the witness doctor confirms that the deceased was involved in an accident that caused the rib fracture and the blood clot. 54. The police abstract has created a linkage and a connection between the deceased, the motor vehicle and the scene of the accident that informed the cause of action. 55. On a balance of probability, the court is satisfied that the Appellant proved their case on a 51 to 49% ratio that an accident occurred and that the Respondents caused the accident by negligently driving the car that caused the accident. 56. The police abstract points are the fact that the Respondents were the owners of the vehicle that caused the accident. In Joel Muna Opija -vs- East African Sea Food Ltd KSM Civil Appeal No. 309 of 2010 (2013) e KLR held that the produced police abstract confirmed the salient facts and that since no objection was raised, the facts stated therein ought to be taken as true and further and that by failing to call any witnesses or adduce any evidence in support of their defence, the evidence remain uncontroverted. 57. This is the case in this appeal and in the court's opinion, there is sufficient evidence to create a linkage and a connection between the deceased and the Respondents’ motor vehicle. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19319/eng@2025-12-17 6

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58. The court finds that the magistrate erred in law in failing to find the Respondents liable for the accident. 59. The fact that the deceased might have had hypertension, does not mean that his death was not caused by the accident. 60. It is not unusual to find a sick or an ailing or even a person with internal bodily injuries driving. 61. The fact that such a driver was involved in a road traffic accident cannot form the basis of discharging a negligent driver from liability. 62. A driver is always under a statutory duty under The Traffic Act to ensure that they drive and control their vehicles. 63. All the drivers who are on the road are under constant duty of care. They are at all times to protect other users from harm. 64. It does not matter whether another driver is suffering from hypertension, or whether they are children or whether they are old pedestrians. The duty remains pegged on the fact that drivers have a constant duty to protect others and not to drive negligently. 65. From the foregoing it is this court’s find that the Respondents were 100% liable for the road traffic accident that caused the demise of the deceased. 66. If it is further this court’s finding that the discharge of the Respondents from liability and the refusal to assess the damages was a fatal error on the part of the trial magistrate. Order; 1. The appeal, succeeds to the extent that the Respondents are found to be 100% liable for the accident. 2. This case shall be returned to the lower court for purposes of assessing general damages and special damages before any magistrate with jurisdiction other than the one who tried the case. 3. The costs of the appeal to the Appellants. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER 2025. ......................... J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19319/eng@2025-12-17 7

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