Eunice Akinyi Shikanda v City Star Shuttle Limited & 1 other

ii. Driving without due care and attention to other road users. iii. Failing to slow down, swerve or in any way maintain the said motor vehicle so as to avert the accident. iv. Driving a defective motor vehicle in the circumstances. v. Failing to apply brakes on time to avoid the accident. vi. Failing to ascertain that the road ahead was clear before proceeding on. The plaintiff further relied on the doctrine of Res Ipso Loquitor. 4. The plaintiff avers that the 1st defendant is held liable under the doctrine of vicarious liability. 5. That as a result of the accident, she suffered the following injuries; a. Blunt injuries to the anterior chest wall leading to severe soft tissue injuries. b. Blunt injuries to the nose leading to epistaxis. c. Blunt injuries to the right shoulder joint leading to severe soft tissue injuries. d. Blunt injuries to the neck leading to severe soft tissue injuries. e. Severe soft tissue injuries on both knee joints. 6. However, the 1st and 2nd defendants denied liability vide a joint statement of defence dated 28th November, 2016 and in particular that the 1st defendant was the registered owner of the subject motor vehicle and the 2nd defendant its agent or servant. The occurrence of the accident was admitted but the circumstances under which it is alleged to have occurred is denied. 7. Further, fact that the plaintiff was a passenger in the subject motor vehicle, and that it was driven negligently by the 2nd defendant was also denied as were the particulars of negligence attributed to the 2nd defendant. 8. However, the defendant averred that, in the alternative and without prejudice basis, if the accident occurred then it was caused solely or substantially contributed to by the negligence of the plaintiff. 9. The particulars of negligence attributed to the plaintiff are stated as follows; a. Failing to take any necessary and/or adequate precaution for her own safety b. Failing to heed the instructions on safety precautions when travelling. c. Filing to heed the traffic rules and regulations when travelling. 10. The 1st defendant denied being vicariously liable for the actions of the 2nd defendant. The defendant further averred that if the accident occurred as may be proved, then it was inevitable. 11. The plaintiff filed a reply to the defence dated 8th December, 2016 denying all the allegations in the statement of defence. 12. The case proceeded to full hearing. The plaintiff’s case was supported by his own evidence wherein she relied on a statement filed and adopted as her evidence in chief, and the documents filed together with the plaint. In addition, (PW2) No. 66032 Corporal Kiprono Bett testified for the plaintiff and produced a police abstract and P3 form as plaintiff exhibits 5 and 6 respectively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19341/eng@2025-11-18 2

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13. On their part, the defendants relied on the evidence of (DW1) No. 88987 PC Abel Aboki who produced an abstract and extract from the occurrence book relating to the accident. 14. The trial court upon considering the evidence adduced and submissions tendered by the parties, dismissed the plaintiff’s case on the grounds that she did not prove her identity and/or that she was involved in the accident. 15. However, the plaintiff (herein “the appellant”) is aggrieved by the decision of the trial court and appeals against it on the following grounds; a. The learned Magistrate erred in fact and in law in finding that the appellant had not proved her case on a balance of probabilities despite there being overwhelming evidence. b. The learned Magistrate erred in fact and in law in disregarding the appellant’s testimony and the testimony of her witnesses especially that of the investigating officer during the hearing of the above suit. c. The learned Magistrate misdirected herself by holding that the appellant was not involved in the accident yet the appellant adduced evidence in support of the same. d. The learned Magistrate erred in fact and in law in dismissing the appellant’s suit despite there being overwhelming evidenced to hold the respondents 100% liable. 16. The appeal was disposed of vide filing of submissions. The appellant in submissions dated 1st February 2023, argued that there is no contention that the subject vehicle was involved in a self-involving road traffic accident that occurred on 21st August 2016, and as a result passenger sustained injuries. That, the occurrence of the accident was confirmed by (PW2) PC Bett, the Investigating officer and (DW1) PC Abel Aboki. 17. That she testified that she was a fare paying passenger onboard the subject vehicle and produced P3 form, police abstract and treatment notes as proof of the injuries she sustained as a result of the accident. That her name did not appear on the occurrence as it appears in her National Identity Card was inadvertent. That she confirmed in the trial court that her husband’s name is Norman Andati and therefore Eunice Andati and Eunice Akinyi refer to one and the same person. 18. Furthermore, (PW2) Cpl Bett testified that appellant had recorded a statement on the occurrence of the accident but her name was erroneously captured in the occurrence book as Eunice Andati instead of Eunice Akinyi. He affirmed that Eunice Andati and Eunice Akinyi refer to one and the same person. That in any event, (PW2) Cpl Bett produced the P3 form and the police abstract without any objection by the respondents. 19. The appellant faulted the trial Magistrate for relying on the doctrine of volenti non-fit injuria despite the fact that the respondents never raised it nor was she cross-examined on it. That the issue of whether she was an excess passenger did not arise during the hearing of the suit. Further, the capacity of the subject vehicle is unknown and it would be therefore difficult to ascertain whether she was an excess passenger. 20. Further she faulted the trial Magistrate for relying on the evidence of (DW1) PC Aboki who produced a letter revoking the police abstract issued to the appellant in holding that the appellant was not involved in the accident. That the evidence of (DW1) PC Aboki was hearsay as he did not author the revocation letter but relied purely on records availed to him. the same neither did visit the scene of the accident nor fill the abstract. That he admitted in cross-examination that the investigating officer was better placed to testify about the appellant’s involvement in the accident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19341/eng@2025-11-18 3

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21. Furthermore, (DW1) PC Aboki did not carry out any investigation including interrogating the appellant and talking to the driver of the motor vehicle before reaching the conclusion that she was not involved in the accident. The appellant relied on the case of, Sammy Ngugi Mugo vs Mombasa Salt lakes Ltd & another (2014) eKLR where the Court stated that the police officer having admitted that he did not investigate the occurrence of the accident neither did he speak with the appellant, that checking the occurrence book entry was not sufficient or thorough investigations to confirm alleged fraud. 22. She further relied on the case of Mary Muathe Muthikwa & another vs Isaac Maina Thomba (2017) eKLR where the Court stated that the police officer who did not make the entries in the occurrence book acted ultra vires in revoking the police abstract and PW3 acted. Further, the police officer could not revoke a document that had conferred a right to a party without hearing such a party. 23. The appellant argued that, the fact that she did not produce her original Identity Card was moot as she stated that she had lost it during the accident and produced a copy of the same. That she produced her voters registration card and proceeded to read out her details therein including her Identity Card number. 24. Lastly, the appellant submitted that she had proved herr case on a balance of probability through her evidence on how the accident occurred which was corroborated by the evidence of the Investigating officer. She referred the court to the case of Kanyungu Njogu vs Daniel kimani Maingi [2000] eKLR where the Court stated that where a court id faced with two probabilities it can only decide on a balance where there is evidence to show one probability is more probable than the other. 25. However, the respondents in submissions dated 6th February 2023, argued that the appellant’s case was marred with contradiction. That the appellant testified that she reported the accident after five (5) days while (PW2) Cpl Bett testified that she recorded her statement on 30th August 2016, which was ten (10) days after the occurrence of the accident. 26. That the appellant did not adduce any evidence to prove that she was involved in the accident. That the appellant testified that she introduced herself as Eunice Andati in the police station which was corroborated by the evidence of (PW2) Cpl Bett that the hospital register indicated the name of the victim as Eunice Andati. That no document was produced to show that the appellant is the same person as Eunice Andati. 27. Furthermore, (DW1) PC Aboki confirmed that the appellant’s name did not appeal in the occurrence book. That he produced a revocation letter dated 7th December 2017 prepared by the Base Commander Magdaline Ndila, confirming that Eunice Akiny Shikanda was not involved in the accident and revoked the police abstract. That the police abstract having been revoked, the appellant’s testimony was a mere fabrication and ought to be dismissed. 28. The respondents relied on the case of Caroline Waithira Kago vs Stephen Muiruri Njau & another (2016) eKLR where the Court dismissed the appeal before it as the appellant failed to prove her involvement in the alleged accident. 29. The respondents submitted that appellant had failed to prove the particulars of negligence against them on a balance of probability and therefore the appeal ought to be dismissed. That in the case of Statpack Industries vs James Mbithi Munyao Nairobi High Court Civil Appeal No. 152 of 2003 (unreported) the Court stated that the plaintiff had the burden to prove a casual link between someone’s negligence and his injury by adducing evidence connecting the two on a balance of probability. That not every injury is as a result of someone’s negligence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19341/eng@2025-11-18 4

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30. Further reliance was placed on the case of Lucy Muthoni Munene vs Kenneth Muchange & another Nairobi HCC 858 of 1998 where the Court stated that in a personal injury claim the plaintiff must show that the loss he suffered is attributed to the defendant’s negligence by adducing evidence that can be inferred on a balance of probability. 31. Finally on the issue of quantum, the respondents argued that the appellant was treated on antibiotics and pain killers. On the special damages, the respondents submitted that special damages must be pleaded and specifically proved. That the appellant pleaded special damages of Kshs. 11,775 but produced receipt worth Kshs. 10,650, which were payments to advocates which should be included in the award of general damages. That the appeal ought to be dismissed with costs to the respondents. 32. At the close of the arguments by the parties on the appeal, the court notes that the role of the first appellant court is to re-evaluate the evidence adduced afresh and arrive at its own conclusion as stated by the Court of Appeal in the case of; Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123. 33. The court stated as follows: “ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. 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 demeanour of a witness is inconsistent with the evidence in the case generally.” 34. Be that as it mat, the evidence herein considered afresh reveal that, the appellant pleads at paragraph 5 of the plaint that she was a passenger in the subject motor vehicle owned by the 1st defendant and driven by the 2nd defendant. In response thereto, the respondent denied the appellant was travelling in the subject vehicle. A consideration of the response clearly reveals that the respondent offered a general denial to the averments at paragraph 5 of the plaint. 35. The appellant produced medical documents in the form of treatment notes from Naivasha County Referral hospital, the medical report by Dr Obed Omuyoma and P3 form which indicates that she was injured. She associated the injuries with the road traffic accident herein. Notably these documents were produced without any objection from the respondents. 36. In addition, the appellant produced a police abstract to prove that she was involved in an accident. The same was also admitted in evidence without objection. It indicates that one Eunice Akinyi a passenger of P.O. Box 56097 Nairobi was involved in the accident and injured. The name of the appellant herein is Eunice Akinyi Shikanda. 37. At the hearing of the case, she explained that her Identity Card number 28516918 got lost during the accident but stated that she had her voter’s card. From the lengthy cross-examination, the issue of appellant’s identity was raised in question and the rest of cross-examination was centered on the occurrence of the accident and the injuries the appellant allegedly suffered. Moreover, the appellant, with the consent of the respondents, was allowed to and produced a notice of institution of the suit and a copy of her Identity Card marked as Pexhibit 7(a) and 8 respectively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19341/eng@2025-11-18 5

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38. Furthermore, (PW2) Corporal Kiprono Bett confirmed that the complainant recorded a statement with the police on 30th August 2016 and was issued with a P3 form. That although the name in the occurrence book is “Eunice Andati”, it is for the same person as “Eunice Shikanda” and that due diligence was done to confirm that the appellant was involved in the accident. 39. On the other part, the respondents did not testify to rebut the appellant’s evidence. DW1 PC Abel Aboki who produced evidence to prove that the appellant was not involved in the accident stated that he did not know how the abstract was issued to the appellant. That he was not the investigating officer. That the letter dated 7th December, 2017 in his possession was issued by the Base Commander one Magdalene Ndila and it shows a list of the injured but appellant’s name is not there. However, he stated that he does not know where the Base Commander is. 40. From the evidence of this witness, he could not confirm with certainty whether the appellant was involved in the accident or not. His evidence was hearsay. As such, the trial court could not rely on it. But even more so, the appellant produced a copy of the Identity card and it was admitted in evidence. Therefore, the finding of the trial court that the plaintiff misrepresented her name at the hospital and elsewhere is not supported by evidence on record. Further the holding that she did not prove the same vide Identity card was also erroneous. As such, I set aside the judgment of the trial court and find that the plaintiff proved her case on the balance of probability. I hold that the defendants fully liable at 100%. The plaintiff cannot have contributed to the accident as a passenger and neither have the alleged particulars of negligence against her proved. As the judgment on quantum was not considered, I revert the matter to the Chief Magistrate’s court for the same. 41. No orders as to costs are issued at this stage. DATED, DELIVERED, SIGNED THIS 18TH DAY OF NOVEMBER, 2025. GRACE NZIOKA JUDGE In the presence of; Ms Kiberenge for the appellant Mr. Kabita for respondent Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19341/eng@2025-11-18 6

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