Patrick Mutuku Kisilu Alias Patrick Mutua v Johnson Musyoki Ngenyeu Alias Johson Ngenyeu

rammed onto the plaintiff’s bicycle as a result of which the plaintiff sustained severe personal injuries and suffered loss in damage. 5. The plaintiff set out the particulars of negligence at paragraph 4 of the planes alleging that the motor vehicle was driven without care and attention, that it was driven in circumstances that precipitated and caused the accident, that the driver failed to keep and or maintain any or any proper lookout, that the driver failed to have due regard to the safety and well-being of cyclists lawfully using the said road, and in particular the plaintiff, that the driver failed to have due regard to other traffic lawfully using the said road , and that he failed to keep and or maintain the motor vehicle registration number KBZ 926G on the road and hence causing the accident, that he failed to exercise the care and skill reasonably expected of a driver in the in the circumstances, that he drove at an excessive speed in the circumstances, that he failed to stop, to slow down, to swerve or in any other way to manage or control the motor vehicle and avoid the accident , that he failed to brake in time or at all, that he drove a defective motor vehicle. The plaintiff averred that he was going to rely on the doctrine of res ipsa loquitor. The defendant filed a defence. 6. From the record of appeal the copy of the defence that is attached is incomplete as it only ends up at paragraph 6 yet in the reply to the defence The plaintiff refers to paragraph 789 10 11 and 13 but I was able to see that the defendant denied all the particulars of negligence, denied that the doctrine of res ipsa loquitor was applicable and pleaded the doctrine of volenti non fit injuria. 7. It is contended at paragraph 6 a to d as the rest is missing, that the plaintiff was negligent in failing to take any adequate precaution for his own safety ,failing to wear any or any adequate protective apparel as designed by law ,overtaking in a dangerous and careless manner ,riding without due regard to other road users…. 8. During the trial the plaintiff testified as PW 2 He adopted his witness statement as his evidence in chief and also produced his list of documents dated 14th January 2020 and filed on 19 February 2022 as plaintiff exhibits no2to 14 together with the police abstract. He said he blamed the owner of the motor vehicle for the accident. He denied causing e the accident in any way 9. In his statement dated 14th February 2018 he said that on the material date at about 6:30 AM he was riding a bicycle on the pavement at Makindu Wote Road when a speeding motor vehicle registration number KBZ 926G lost control, left the road, and violently knocked him from behind while he was off the road and lawfully riding his bicycle on the roadside pavement. He said the driver of the motor vehicle took off but one passenger in the vehicle went to his assistance. It was his evidence that the accident was caused by the negligence of the driver who drove without due care and attention ,at an excessive speed, failed to keep the vehicle on the road and permitted it to hit him. 10. On cross examination he said that the vehicle was a matatu and that he was wearing a reflected jacket which had been issued by the MP Masimba. He said he was not wearing a helmet but a normal cap; That he was cycling when the Matatu came from behind and hit him from the rear and he fell down; That he was cycling in the lane for bicycles and not in the middle of the road. He said there were people who saw him being hit and they followed the matatu as it a hit and run but he did not have witnesses who witnessed the accident in court.He said he did not know whether the driver was charged. Upon reexamination he said that the motor vehicle hit him from the rear while he was cycling on the bicycle lane. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4370/eng@2026-02-09 2

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11. The police officer who testified as PW 1 no. 1125 90 PC Edwin Cheruiyot told the court that he was not the investigating officer but only came to produce the police abstract. It indicated that there was an accident between the motor vehicle and a pedestrian .He confirmed that he did not visit the scene and that according to the police abstract the matter was pending under investigation and no charge had been preferred against anyone. For that reason, he said he could not apportion liability. He told the court that he looked for the OB and the OB abstract but did not find it. The plaintiff’s case was closed. On its part the defence called the same PC Edwin Cheruiyot. 12. He now had the extract from the Occurrence Book entry no. 03/25/07/2019. Reading from the abstract he said that the investigating officer one PC Samuel Maina had booked a slight(sic) road traffic accident which involved motor vehicle KBZ 926G Matatu belonging to Mateo SACCO and a pedal cyclist . The OB extract stated that the driver of the motor vehicle was driving from Wote to Makindu general direction and on reaching the location of the accident a pedal cyclist emerged from the side of the road and entered into the road and as a result was knocked down by the said motor vehicle and sustained slight injuries; that he was rushed to Makindu District Hospital where he was on treatment; That the motor vehicle was detained awaiting inspection ;That the accident had occurred about 6:30 AM in the morning between mv registration KBZ 926G and Patrick Mutuku Kisilu. 13. On cross examination he confirmed that the OB did not indicate who was to blame ,that what was in the OB was the initial report of the accident but it did not indicate who witnessed the accident , he said the report must have come from eyewitness victims, and further that it could also have come from either the pedal cyclist or the driver of the Matatu, he said he did not know whether the driver recorded a witness statement as he did not have the police file or the investigating officer , he said the driver survived the accident and the motor vehicle was towed to Makindu Police Station; that there must have been a report after inspection. He said that according to the abstract and the OB the matter was pending under investigation. The defence closed its case Parties filed written submissions. 14. As to who was to blame for the accident the plaintiff submitted in the lower court that he and the motor vehicle that hit him were headed in the same direction but the motor vehicle veered off the road, lost control and knocked him from behind. 15. That the defence called the same police officer who produced the report from the OB and confirmed that the Investigating Officer did not blame anyone for the accident. 16. It was submitted that evidently there were two different accounts of the accident and that the defence depended on a report in the OB and not evidence on how the accident occurred. The court was referred to Japheth Gituma Joseph & 2 others v Republic [2016] KECA 48 (KLR) where the court of appeal held that OB extracts are not evidence: the court stated: Reports of commission of alleged crimes are normally made to a duty officer at a police station and may be made by a person who is not the complainant as in cases where the complainant is admitted in hospital. The report is merely a report of occurrence – a bare report of a crime and not evidence of commission of an offence against any person. (Emphasis his) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4370/eng@2026-02-09 3

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17. The appellant cited Crown Petroleum Kenya Limited & 3 others v Anderson Sumata Saoli & 7 others [2019] KEHC 5409 (KLR) where the Judge applied Japheth Gituma Joseph above and went on to state; The fact that an entry on the OB indicated that the trailer was overtaken when it hit the matatu which the witness PW4 explained as having been made before the investigations were done is no evidence as to how the accident happened. While the plaintiff called PW1 and the 1st defendant called DW1 to relate evidence as to the cause of the accident, the 2nd and 3rd defendants did not call any evidence thereon. The OB entry version of the trailer overtaking is not supported by any other evidence before the Court. The evidence of the witnesses PW1, PW4 and DW1 is consistent that the matatu was overtaking, the scene of the accident was at a sharp corner, the matatu was driving downhill from Eldoret and the trailer uphill towards Eldoret. It is unlikely that a cement laden trailer driving uphill could have been trying to overtake so as to cause a collision with the oncoming matatu. On the rules of evidence on proof on balance of probabilities, (See Phipson on Evidence, 16th ed. 2005, para. 6-54 at p.155), the more unlikely an event, the more cogent the evidence required to prove it. I do not see any evidence in the record to support a version of the accident that the trailer was overtaking and thereby causing the accident. It is submitted that from the foregoing the defendant did not provide any evidence of probative value as to how the accident happened and no explanation was given as to why the defendant or the driver of the said motor vehicle did not come to court to testify. 18. It is submitted that in the circumstances the only eyewitness evidence of probative value that was before the trail court was that of the Appellant. 19. The court was referred to other cases to support the appellant’s case. Multiple Hauliers EA limited versus Justus Mutua Malundu and two others [2017] eKLR Wangari vs Nkaru [2004]eKLR Agnes Akinyi Okey0 versus Marie Stopes Kenya [2004]eKLR The court was urged to find the respondent 100% liable for the accident. 20. On appeal the appellant relied on Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 on the duty of the court in a first appeal to reevaluate reassess and reanalyze the record and to draw its own conclusions always keeping in mind that it never saw nor had the witnesses. In addition, that the court was not bound to follow the trial court’s findings of fact if it appeared that the court had failed 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. 21. The appellant submitted that the issue of liability began with the ownership of the motor vehicle. This issue was not in contest in this appeal but the appellant submitted that there was sufficient evidence to prove that the motor vehicle belonged to the respondent. 22. On liability for the accident, the appellant submitted that the evidence that was given by he gave in the trial established that the defendant was to blame for the accident. 23. The appellant reiterated the submissions from the lower court. He contended that the learned trial Magistrate found that there was contradiction on the causation of the accident and that the appellant’s account was not corroborated by an eyewitness or documentary evidence. That the court relied on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4370/eng@2026-02-09 4

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police abstract and the OB entry in finding that he the plaintiff was equally to blame. That the court was persuaded by the account of the Investigation officer as recorded in the OB and that it was on that basis that the trial court apportioned liability equally between, he the appellant and the respondent. It was the appellant’s position that this was erroneous. In addition to the submissions made in the subordinate court and the appellant added the following for emphasis; Bwire vs Wayo& Sailoki [2021]KEHC 7 KLR Where the court emphasized that the reports received at the police station were not direct evidence but secondary evidence and just like in this case, in that case the police officers who testified were not at the scene ,none of them could give an account on how the accident had occurred, none of them could give an eyewitness account. The court therein stated that eyewitness testimony is critical in both criminal and civil trials and is frequently accorded high status in the courtroom. The court stated. 24. The evidence tendered by the Respondent in the lower court is not direct evidence. It has no probative value and in absence of further evidence connecting it with what happened at the scene, the court could not properly draw an inference or make a reasonable conclusion as to how the accident occurred. This being the quality of the evidence tendered, there was no basis at all upon which the Magistrate court reasonably make a finding that liability had been established on 100% basis as against the appellant 25. It is submitted that the trial magistrate made an error to treat the contents of the OB as direct evidence. That it was erroneous to rely on what the police officer told the court as that was not direct evidence and that the contents of the OB required corroboration. 26. The appellant relied on David Kajogi M'Mugaa vs Francis Muthomi[2021]KEHC 4363 (KLR) where the court held that the trial magistrate was in error when it failed to note that the I.O’s report could not be conclusive evidence on how the accident had happened as he did not have statements of eye witnesses , no sketch plan of the scene detailing the point of impact , the last resting point of the victim and the motor vehicle . The court held that the I.O’s report was an opinion which the court could accept or reject on various reasons. 27. The appellant cited other authorities to emphasize the same point Kennedy Nyangoya vs Bash Hauliers [2016]KEHC 2616(KLR) Wanjohi vs Ngigi [2024] KEHC 7865(KLR) Mwiti & Another vs FNK(suing as the legal representative of the Estate of JMM(deceased) [2023] KEHC 456(KLR) 28. To put emphasis on the submission that the only probative evidence was that of the appellant, the appellant cited Njogu &Another vs Simiyu [2022] KEHC 14199(KLR) where the court held that the testimony of the police officer was hearsay and did not add any probative value to the respondent’s case. 29. JRS Group Limited vs Kennedy Odhiambo Andwak [2016]eKLR where the court the court found that that the evidence of the eye witness placed the blame on the appellant in that case. 30. It was submitted that the trial court erred in failing to take note of the failure by the respondent to call the driver as a witness. It has been held that failure to call a witness who a party is reasonably expected to call may prompt the court to infer that that person’s evidence would not have helped the party’s case. See Kimotho vs Kenya Commercial Bank [2003]1EA 108 , Green Palms Investment Ltd vs Kenya Pipeline Co Ltd [2006] KEHC 1682 (KLR), Central Microfilm Operators (1990) LTD vs TSC [2015]eKLR. 31. The appellant also relied on Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] KECA 677 (KLR) where the court of appeal said the following on the issue: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4370/eng@2026-02-09 5

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As to the consequences of such deliberate and unexplained absenteeism on the part of the appellant, we find persuasive the judgment of Lightman J of the English High Court of Justice in RAJA vs. VAN HOOGSTRATEN [2005] E WHC 2990 (Ch). After finding that the defendant had given no reason for not attending the trial and that there was no credible justification other than “a well-founded concern that his account would not survive oral examination,” the Judge inferred that he had run scared of cross-examination and, in the circumstances, “(i) adverse inferences may be drawn from his failure to give evidence on the issues on which he might reasonably be expected to answer the case against him (ii) statements in [his] witness statements in issue in the case which ought reasonably to be tested may carry little or no weight (iii) the unchallenged evidence against him may without more be accepted so long as it is credible …” That reasoning is in consonance with the Privy Council decision in GIBBS vs. REA [1998] AC 786 to the effect that when defendants elect to give no evidence such a choice “carries the risk that should it transpire that there was some evidence tending to establish the plaintiff’s case, albeit slender evidence, their silence in circumstances in which they would be expected to answer might convert that evidence into proof.” 32. It is submitted that the trial court failed to consider the submissions on the failure of the defence to call the driver to testify and to draw an inference on the issue. That considering that this issue is settled by precedent the trial court ignored the doctrine of stare decisis hence the erroneous decision: see William Omari Owino vs South Nyanza Sugar Company Limited [2019]eKLR. 33. It was also submitted that the trial court did not analyse the evidence of the Police officer on how the accident happened to find out whether the driver took any evasive action to avoid the accident. See Multiple Hauliers (EA) Ltd vs Justus Mutua Malundu above. That the statement he read from the OB could only have been corroborated by the driver who failed to appear to testify . 34. Finally, it was submitted that it was the driver who was in control of the motor vehicle , a lethal machine and had a greater duty of care than the appellant: see Isabella Wanjiru Karanja vs Washington Matele (1982-1988)1 KAR 186 and Teresia Sebatian Massawe (Suing as the legal administratix of the estate of the late Silvia Sebastian Massawe vs Solidarity Islamic (Kenya Office & Another [2018]eKLR At the time of writing the judgment I did not find any submissions by the respondent. 35. I have set out the record herein above and the submissions in the subordinate court. The issue is really whether the appeal has merit. 36. I am guided by the principles set out in Selle that a first appeal is really a retrial with the court keeping in mind that it does not have the actual witnesses but just the record. Did the trial court err in arriving at the apportionment of liability at 50:50 as between the plaintiff and the defendant? 37. From the Judgment of the trial court, it is evident that the court considered the extract from the Occurrence Book to be evidence as at the same level with the evidence given by the appellant. 38. From the authorities cited herein it is clear that direct eye evidence cannot be equated with indirect hearsay evidence. The authorities clearly state that OB extracts are not evidence, they are entries of an occurrence and would require corroboration as they are merely reports or the opinions of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4370/eng@2026-02-09 6

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Investigation officer or the person reporting or recording the same. To become evidence the OB entry in this case would have required to have the witness statements of the eye witnesses, a sketch plan of the scene of the accident showing how it looked like post the accident. In this case all the trial court had was the OB report which alleged that the appellant rode onto the road from the side into the path on the m/vehicle without any warning. Evidently the only person who could controvert that was the driver or his passengers. 38. The person who was mentioned as the Investigating officer was said to have visited the scene but there waw no single statement or sketch plan of the scene. In addition he held the m/v for inspection but no inspection report was brought to court. 39. It is noteworthy that the driver did not testify and there was no explanation. There was no way of verifying the OB entry without any eye witness evidence. 40. I agree with the submissions of the appellant that the trial court ought to have considered the impact of the absence of this key witness without any explanation. Looking at the cited authorities on the issue I have to infer that had the driver come to testify his testimony would not have supported the respondent’s case and that is why he was not called. To that end the only uncontroverted eye witness evidence is that of the appellant on how the accident happened. 41. The respondent brought no evidence to support the allegations of negligence against the appellant as set out in the defence. There was no direct evidence that the appellant committed any of the acts set out at paragraph 6 of the defence. 42. It is my considered view that had the trial court applied its mind on the facts and the authorities cited the court would have seen through the fact that the OB report could not stand at the same level at the testimony of the appellant as it was not of any probative value by itself. There were no two conflicting sets of evidence on the cause of the accident. There was one set of evidence, that of the appellant , and the other was a an un supported report. 43. Having been persuaded by the OB report the trial court ran into the erroneous decision of apportioning liability equally. 44. The weight of the evidence and the precedents were in favour of the plaintiff /appellant as the defendant /respondent did not provide any evidence to contradict his testimony or demonstrate that he indeed contributed to the accident. Ultimately, I find that the appeal has merit. The finding on liability was erroneous. 45. The Judgment of the trial court with respect to liability be and is hereby set aside and substituted with a finding that the respondent is 100% liable for the accident that happened on 25th July 2019. The appeal is allowed with costs to the appellant. DATED, SIGNED AND DELIVERED VIA CTS WITH CONSENT OF COUNSEL THIS 9TH FEBRUARY 2026 MUMBUA T MATHEKA JUDGE CA Mwiw'a/Daniel https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4370/eng@2026-02-09 7

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