Vincent Enos Mutokah v Joseph Mutua Mbiti

the appellant’s suit with costs to the respondent. The appellant was aggrieved by the said Judgment and filed this appeal based on the following grounds on the memorandum of appeal: 5. 1. That the trial magistrate erred in law and in fact failing to consider the evidence on record hence arriving at an erroneous finding. 2. That the learned magistrate erred in law and in fact by failing to find that the appellant had proved his case against the respondent on a balance of probabilities. 3. That the trial magistrate erred in law and in fact in addressing himself on extraneous issues not borne of pleadings and evidence hence arriving at erroneous findings. 4. That the learned magistrate erred in law and in fact on both assessing and applying the standard of proof. 5. That the learned trial magistrate erred in law and fact in failing to analyze the totality of the evidence adduced and thereby failing to find that the respondent was wholly or substantially liable for a subject accident. 6. That the learned trial magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision which is unsustainable in law. 7. That the learned trial magistrate erred in law and in fact by failing to consider the overwhelming evidence to the effect that the respondent joined the highway in a dangerous way as if crossing to the other side of the road and thereby driving motor vehicle registration number KCH 714H onto the rightful lane of motor vehicle registration number KBR 306B causing the two vehicles to hit each other. 8. That the learned magistrate erred in law and in fact by failing to find, despite the ample evidence that the collision between motor vehicle registration number KBR 306B and KCH 714H was caused either by the respondent’s loss of control of his motor vehicle registration number KCH 714H or by the failure of the respondent to take any measures to avoid the collision or by a combination of both reasons. 9. That the learned trial magistrate erred in law and in fact by failing to find that in absence of an explanation from the respondent rebutting the evidence of the appellant and the investigating officer for the accident, the respondents was solely or substantially to blame for the accident. 10. That the learned magistrate erred in law and in fact in disregarding relevant factors brought out by the evidence adduced clearly showing that the respondent was to blame for the accident. 11. That the learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions in making his determination hence arriving at an erroneous finding. 12. That the learned trial magistrate erred in fact and in law by failing to award the appellant special damages of Kshs. 293,702/= in complete disregard of the fact that the appellant had strictly proved entitlement of the same. 13. That the learned trial magistrate erred in law and in fact in entering Judgment in favour of the defendant against the plaintiff in spite of the defendant’s miserable failure to discharge himself from liability of causing the accident. The appellant prays that the appeal be allowed, the Judgment delivered on 14/02/2023 be set aside and Judgment be entered against respondent at 100% liability and quantum of Kshs. 293,702/=. The appeal was canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19559/eng@2025-10-21 2

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6. The applicant filed submissions which I have considered. Analysis and Determination 7. I have considered the grounds of appeal, the proceedings and the Judgment by the learned trial magistrate. The issues which arise for determination can be summarized into two: a. Liability b. Quantum 8. This is a first appeal and the duty of this court has been laid down in various authorities of this court and the court of Appeal in Mwanasokoni v Kenya Bus Services Ltd (1985) KCR 931 it was stated that duty of the first appellate court is to revisit the evidence on record, evaluate it and come up with its own conclusion. However, it should be appreciated that as an appellate court I will not ordinarily interfere with the findings of fact by the trial court unless they were based on no evidence at all, or a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings in issue. 9. In expounding this duty the court of Appeal in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates (2013) KECA 208 KLR, it was stated that this being a first appellate court were are reminded of own primary role as a first appellate court, namely, to reevaluate, re-assess and re-analyze the extracts on record and then determine whether the conclusions reached by the learned trial Judge are to stand or not an give reasons either way. 10. Also, in Kenya Ports Authority v Kinston (Kenya) Limited (2009) 2 E.A 212, the Court of Appeal held that: “ On first appeal from the High Court, the court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and no to introduce extraneous matters not dealt with by the parties in the evidence.” 11. This duty is provided under Section 78 of the Civil Procedure Act which states: “ Powers of appellate court 1. 2. Subject to such conditions and limitations as may be prescribed, an appellate court shall have power – a. To determine a case finally. b. To demand a case. c. To frame issues and refer them for trial. d. To take additional evidence or to require the evidence to be taken. e. To order a new trial. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19559/eng@2025-10-21 3

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12. The evidence which was adduced by the appellant can be summarized as follows: Pw1 Vincent Mutoka testified that on 1/1/2017 he was driving form Kitui when a car crossed the road. He was driving motor vehicle KBR 306B then all of a sudden, a motor vehicle registration number KCH 417H pulled onto the Highway from a stage as if crossing to the other end of the road. PW1 said he hooted but the vehicle KCH did not stop. He tried to switch to the other end but because of the close proximity the said motor vehicle rammed into his car from the side thus causing extensive damage to it. Though in his statement he had said that the police went to the scene, when he gave evidence, he told the court that he was given a police abstract, police officers did not go to the scene. He blamed the driver for the accident. In cross-examination he told the court that he was driving from Kitui towards Nairobi. They were not driving from the same direction with the other vehicle. The appellant did not adduce any other evidence from an eye witness account. 13. PW2 Geofrey Kinyua said he assessed the appellant’s motor vehicle and filed a report. The damages were assessed to be repaired at a cost of Kshs. 277,300/=. The vehicle was repaired at a cost of Kshs. 251,700/=. He told the court that the vehicle was hit on the left side at the front. 14. PW3 Vitalis Juma Maside Legal Assistant KEA confirmed that the vehicle was repaired by ICEA Lion. The Respondent’s Case 15. DW1 Joseph Mutua Mbiti. He testified that he joined the road at Migwani road. Appellant’s vehicle came while being driven at a high speed. The vehicle veered off he road and hit his car. He went to the vehicle and said there was no casualty. The driver asked him for the police station. He took him to Matinyani but there was no police officer. He took him to Kitui Police station. He said his vehicle had no damage. He left the appellant with a police officer. He told the court that his vehicle had no damage. He went home and three years later he was served with court summons. He called the appellant and he said he had no issue. The advocate then reached to him for proposed settlement. 16. I have considered the evidence. The law is well laid down that he who alleges must prove. This is the legal burden of proof which should always be discharged by the appellant. Upon proof, the burden may shift to the respondent. Section 107, 108 & 109 of the Evidence Act provides as follow: “ 107. Burden of proof. (1) 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. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19559/eng@2025-10-21 4

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17. Determination of liability in road traffic accidents largely depends on the evidence. The Stanley v Gypsum Mines Ltd (2) 1953 AC 663 and as cited with approval by Court of Appeal in Michael Hubert Koss & Another v David Seroney & 5 Others (2009) eKLR it was stated that: “ To determine what caused an accident from point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection. In a court of law, this question must be decided as properly instructed and reasonable jury would decide it… The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault and that if any one of them had acted properly, the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.” 18. From this statement, the court is guided that determination of liability in road traffic accidents cases is not a scientific affair. The issue of liability must be based on evidence which is presented to the court. In this case the evidence on the occurrence of the accident is scanty and particularly when it comes to the liability of the respondent. 19. This is because the version given by the appellant on how the accident occurred does not add up. The appellants were coming from the opposite direction when the on coming vehicle left the stage and crossed the road leading to the cause of the collision. The appellant stated that his vehicle was damaged on the left side. The appellant did not say that he swerved or did something to avoid the collision. The evidence was not corroborated as the police did not visit the scene. There was no sketch plan to show whether the collision occurred or whether there was stage. The respondent was not charged. There was no evidence to show that his vehicle was damaged. It is my view that the appellant’s evidence was insufficient to prove that the respondent was guilty of some acts of omission and commission. 20. The police abstract does not add any value to the appellant’s evidence as he admitted that police never went to the scene and the allegation on the abstract is a copy paste from the appellant’s allegation that the respondent was to blame. This is not helped by the fact that the suit was filed over three years after the said accident. 21. From the evidence adduced by the appellant, I find that he did not discharge the burden to proof the claim on the balance of probabilities. I agree with the learned Magistrate that there was no evidence to connect the respondent to the accident. This is a finding of fact by the learned magistrate who had the chance to see the parties when they testified. This court should give an allowance to the fact that it did not see or hear the witnesses when they testified. The finding by the learned magistrate based his finding on evidence and did not act on wrong principles. I have no reason to interfere with his finding of fact. The appellant proved the quantum of damages but could not be awarded as liability was not proved. I will leave it at that. Dispositions 22. For the reasons stated, I find that the Appeal is without merits. I dismiss the appeal with costs to the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19559/eng@2025-10-21 5

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DATED, SIGNED AND DELIVERED AT KITUI THIS 21ST DAY OF OCTOBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19559/eng@2025-10-21 6

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