Vajra Water Drilling Co. Ltd v Naftal Barongo

3. Having heard the parties, the subordinate court entered judgment in favour of the Respondent and awarded damages in the sum of KES. 800,000, special damages in the sum of KES. 67,370 together with costs and interest. 4. Aggrieved by that decision, the Appellant lodged the present appeal challenging both liability and the resultant award. 5. In Selle v Associated Motor Boat Co. Ltd (1968) EA 123, the Court held that a first appellate court is duty-bound to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 6. Having reviewed the Record of Appeal, the proceedings before the subordinate court, the rival submissions and the authorities cited by counsel, the following issues arise for determination: 1) Whether the Respondent proved occurrence of the alleged accident involving motor vehicle registration number KBM 326H and the unidentified motorcycle; 2) Whether negligence against the Appellant was established on a balance of probabilities; and 3) Whether the judgment of the subordinate court ought to be interfered with. 7. On the issue of liability, the Respondent bore the burden of proving, through credible evidence, that the accident occurred in the manner pleaded and that motor vehicle registration number KBM 326H was involved in the collision alleged to have caused his injuries.

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8. The Respondent testified that he was travelling as a passenger on a motorcycle when motor vehicle registration number KBM 326H allegedly rammed into the motorcycle from behind. He maintained that he remained conscious after the accident and was therefore able to identify the said motor vehicle. PW2, Corporal Josephine Wangioda, testified on the basis of police records that the accident involved motor vehicle registration number KBM 326H and an unidentified motorcycle said to have been travelling in the same direction before the collision allegedly occurred. 9. From the evidence on record, significant gaps emerged in the Respondent’s evidence regarding the identity and existence of the motorcycle allegedly involved in the accident. The rider of the motorcycle admitted during cross-examination in Keroka MCCC E032 of 2022 stated that he did not know the registration number of the motorcycle he was riding or its whereabouts and could only identify the owner by the name “Nahashon.” 10. In the Court’s view, those omissions were material since the motorcycle constituted the primary nexus between the Respondent and the alleged accident. Ordinarily, a rider engaged in carrying passengers for hire would be expected to know, or at least provide, particulars capable of identifying the motorcycle involved. The absence of such evidence substantially undermined the reliability of the Respondent’s case. 11. The evidentiary shortcomings were further compounded by PW2’s testimony. She admitted that she neither witnessed nor investigated the accident and that her evidence was solely derived from occurrence book records. She further

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confirmed that no sketch map or motor vehicle inspection report was prepared in relation to the alleged accident. 12. In Statpack Industries v James Mbithi Munyao (2005) eKLR , the Court emphasized that liability must be established through cogent evidence and cannot rest on mere allegations. Likewise, in Kenyatta University v Isaac Karumba Nyuthe (2014) eKLR , the Court observed that claims founded on negligence must be supported by credible and tangible evidence. 13. Guided by those principles and upon independently re-evaluating the evidence on record, this Court is not satisfied that the Respondent proved, on a balance of probabilities, that the accident occurred in the manner pleaded or that motor vehicle registration number KBM 326H was involved as alleged. 14. On the second issue, the subordinate court held the Appellant liable on the basis that the motor vehicle allegedly collided with the motorcycle from behind. With respect, that conclusion was not sufficiently supported by the evidence tendered before the trial court. The finding on negligence depended largely upon the Respondent’s account and the testimony of PW2 who expressly admitted that she neither witnessed nor investigated the occurrence. 15. In Timsales Limited v Wilson Libuywa (2008) eKLR, the Court held that liability cannot properly stand where the evidence tendered is contradictory or insufficient. Likewise, in Eastern Produce (K) Ltd v Christopher Atiado Osiro (2006) eKLR, the Court observed that material evidentiary gaps and inconsistencies ought to be resolved in favour of the defendant where doubt exists.

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16. The Appellant expressly denied both occurrence of the accident and negligence in its Statement of Defence. The burden therefore remained throughout upon the Respondent to place before the court reliable and credible evidence establishing negligence against the Appellant. The record nevertheless shows that the subordinate court attached considerable weight to the Appellant’s failure to call the driver of motor vehicle registration number KBM 326H as a witness. In the circumstances of this case, that approach had the effect of shifting the evidential burden before the Respondent had first established a prima facie case founded upon cogent evidence. 17. Having reconsidered the entirety of the evidence on record, this Court is not satisfied that negligence against the Appellant was proved to the required standard. 11. On the third issue, this Court is mindful that a first appellate court is entitled to interfere with findings of a trial court where those findings are unsupported by the evidence or where the trial court misapprehended material aspects of the case (See Kemfro Africa Limited t/a “Meru Express Services” & Another v A. M. Lubia & Another [1982–1988] 1 KAR 727). 12. Upon a fresh and independent evaluation of the evidence on record, this Court finds that the trial court erred in holding the Appellant liable. Consequently, the award on quantum, having been founded on that finding, cannot be sustained.

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13. Accordingly, the appeal is allowed. The judgment and decree in Keroka CMCC E031 of 2022 are hereby set aside in their entirety and substituted with an order dismissing the Respondent’s suit before the subordinate court with costs. The Appellant shall also have the costs of this appeal DELIVERED AT NYAMIRA THIS 28th DAY OF May 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant For Appellant - Hilda - Mr. Nyangosi for T.O. Nyangosi & Company For Respondent & Co. Advocates - Mr. Mutitu for Mutitu Thiongo

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