Wasike v Polo Hauliers Limited & another

7. PW1 No. 81XXX PC Jackline Ochieng of Bungoma Police Station produced a police abstract dated 13th June 2025 showing that the accident herein occurred and that the same was reported vide OB. No. 02/04/11/2024. 8. In cross-examination, she conceded that she had only come to court to produce the police abstract and that she was not the accident’s investigating officer. She added that she was not aware if the Plaintiff had been charged with the offence of careless driving arising from the accident. 9. PW2 Dr. Gregory Lukhale Wasike recalled that he rammed into the trailer from behind on the date of the accident since the trailer had been abandoned in the middle of the road without any warning signs. He added that as a consequence of the accident, his motor vehicle was written off prompting him to claim Kshs. 913,500/= from the Defendants comprising assessment costs, repair costs, and towing charges. 10. He produced all the documents in his list of documents dated 07th July 2025 as exhibits save for the motor vehicle assessment report dated 03rd July 2025. 11. He admitted in cross-examination that the scene of the accident was along a hilly stretch of the road where drivers are expected to drive at a slow speed. He added that he swerved to the right to avoid hitting the trailer without success. He confirmed that he could clearly see since his motor vehicle’s headlights were on when the accident occurred. 12. He denied having been charged vide Bungoma CMC traffic case number E094 of 2025 for the offence of careless driving arising from this accident. 13. PW3 Clement Wasike the proprietor of Paramount Assessors Limited recalled that he assessed the Plaintiff’s motor vehicle after the accident and prepared a motor vehicle assessment report dated 03rd July 2025 which he produced as an exhibit. He added that he charged Kshs. 5,000/= for preparing the said report and Kshs. 5,000/= for court attendance. 14. PW4 Chrisantus Sifuna Chembeni testified that he witnessed the accident while at his place of work at Mayanja market where he performs security guard duties. He testified that the Plaintiff rammed into the trailer from behind since the trailer had been parked in the middle of the road. He also stated that he is the one who called police officers to the scene and that the trailer driver was not in the trailer when the accident occurred. 15. In cross-examination, he could not tell if the Plaintiff was overtaking when the accident occurred given that he rushed to the scene after hearing a bang. 16. PW5 Stephen Juma Nyongesa stated that he is a security guard at Mayanja market some 30 metres from the scene of the accident. He recalled that the accident occurred in the manner stated by PW4. He added that he told PW4 to call police officers to the scene. 17. He reiterated in cross-examination that he witnessed the accident despite his name not appearing as a witness in the police abstract on record. Defendants’ Case 18. DW1 No. 76XXX PC Isaac Kimani Njuguna of Bungoma Police Station produced the police abstract dated 05th November 2024 as an exhibit. He also produced a copy of the

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charge sheet showing that arising from the accident, the Plaintiff had been charged on 06th March 2025 with the offence of careless driving contrary to section 47(1)(a) of the Traffic Act vide Bungoma CMC Traffic Case No. E094/2025. 19. He also produced an OB. extract for the accident report booked by CPL Juma vide OB. No. 02/0/11/2024 blaming the Plaintiff for ramming into the trailer from behind while the trailer was in motion. 20. In cross-examination, he stated that CPL Juma who investigated the case could not attend court since he was away from duty. 21. DW2 Christopher Mbugua Kimani an investigator from Uptown Loss Assessors produced the investigations report dated 04th April 2025 on behalf of his colleague Henry Njuguna. He blamed the Plaintiff for causing the accident by ramming into the trailer from behind while the trailer was in motion. He based his conclusion on their investigations and the information gathered from Bungoma Police Station. 22. DW3 Jeffa Mwaro Jeffa adopted his witness statement dated 06th February 2026 as his evidence in chief. His testimony was that the accident occurred when the Plaintiff rammed into his moving trailer from behind. He added that he stopped the lorry after hearing a bang from behind and instructed a security guard to go and report the accident. He also stated that the police officers who responded to the scene found him at the scene. He denied having abandoned the lorry in the middle of the road when the accident occurred as alleged by the Plaintiff. ANALYSIS AND DETERMINATION 23. This court has given due regard to the pleadings, the evidence on record, as well as the written submissions filed by the parties. 24. It is common ground that the accident herein occurred leading to damage to the Plaintiff’s motor vehicle. Further, the parties herein are in agreement that the accident herein occurred when the Plaintiff rammed into the Defendants’ trailer from behind. The parties’ sole point of departure is whether the accident occurred when the trailer was stationary or in motion. 25. There is also no dispute that DW1 was the Defendant’s agent in the course of his lawful duties when the accident occurred. Therefore, if this court finds DW1 negligent for causing the accident, the Defendants will be vicariously liable for DW1’s negligence. 26. The foregoing inclines this court to find and hold that the issues for determination are liability and quantum. Liability 27. The Plaintiff and his witnesses (PW4 and PW5) who DW1 admitted that he requested one of them to report the accident to the police maintained that the accident occurred when the trailer was stationary in the middle of the road.

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28. The Defendants disputed the Plaintiff’s version of events on the circumstances under which the accident occurred by relying on their driver’s (DW1) oral testimony, police documents relating to the accident and an investigation’s report dated 04 th April 2025 from Uptown Loss Assessors. 29. A reading of the said investigation report shows that the accident occurred when the Plaintiff rammed into the trailer from behind while the trailer was in motion when the Plaintiff tried to overtake the trailer, only to realize that there was an oncoming motor vehicle. 30. The contents of the Defendants’ investigation report on record were corroborated by the contents of the OB entry number 02/04/11/2024 made by the accident’s investigations officer CPL Juma, immediately after visiting the scene of the accident. 31. Further, the charge sheet on record also corroborated the contents of the police documents on the circumstances under which the accident occurred since the Plaintiff was charged with the offence of careless driving contrary to section 47(1)(a) of the Traffic Act vide Bungoma CMC Traffic Case No. E094/2025 arising from the accident. 32. This court is well aware of its duty not to adopt the findings in police documents on who was to blame for an accident hook line and sinker without independently evaluating the evidence before it and arriving at its own decisions (see Kennedy Muteti Musyoka v Abedinego Mbole [2021] KEHC 1751 (KLR)). 33. However, the circumstances of this case are different. The Plaintiff failed to call the accident’s investigating officer to shed light on the circumstances under which the accident occurred by testifying on the outcome of his investigations as well as the reports made to the station by the security guards who witnessed and reported the accident despite the parties herein taking divergent positions on who was to blame for the accident. 34. It is well settled in this jurisdiction that where a party fails to adduce evidence within their knowledge and possession, the court is permitted to draw an adverse inference against such party that had that evidence been produced, it would have been adverse to that party. This was well explained in Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, where the court stated as follows: “ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”

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35. Indeed, true to the general rule that where a party fails to adduce evidence in their knowledge and possession on an issue, the court ought to make an adverse inference against such a party, the evidence gathered by the accident’s investigating officer, which the Plaintiff conveniently refused to adduce in support of their case, turned adverse to the Plaintiff’s case when the Defendant produced the same. 36. That evidence contradicted the oral testimony by the Plaintiff, PW3 and PW4 on the circumstances under which the accident occurred. 37. It is also worth noting that the Plaintiff blatantly lied under oath that he was never charged with a traffic offence arising from the accident, given the uncontroverted evidence adduced by the Defendants that the Plaintiff was charged with the offence of careless driving contrary to section 47(1)(a) of the Traffic Act vide Bungoma CMC Traffic Case No. E094/2025 arising from the accident. 38. Given the adverse evidence gathered by the accident’s investigating officer on the circumstances under which the accident occurred, which the Plaintiff deliberately failed to disclose or adduce, it is also safe to conclude that the evidence on record proved on a balance of probabilities that PW4 and PW5 lied under oath on the circumstances under which the accident occurred. 39. The Plaintiff’s, PW4’s and PW5’s lies under oath call into play the Latin maxim falsus in uno, falsus in omnibus ("false in one thing, false in everything"). This maxim presupposes that where a witness lies in one part of their testimony, the rest of their evidence is automatically discarded. 40. Courts in this jurisdiction do not take lying under oath lightly. Where a party lies under oath, courts have readily applied the Latin maxim falsus in uno, falsus in omnibus ("false in one thing, false in everything") in disregarding evidence led by a witness who lies under oath. 41. For instance, Kaniaru, J in Heleriko Wabwire Orubia v John Opondo Barasa [2018] KEELC 1992 (KLR) rendered himself thus: “28. But the Plaintiff’s dishonesty did not stop there. In his evidence in court, he said that he was not related to the Defendant. When the Defendant’s turn to testify came, he availed evidence both from himself and others that he is in fact related to the Defendant. It is not clear why the Plaintiff decided to follow the path of lies. That path has never done any good to anyone. There is a Maxim in law: FALSUS IN UNO, FALSUS IN OMNIBUS, which translates as - false in one thing, false in everything. It is not clear in this matter what truth, if any, the Plaintiff told the court.” 42. Further, Nzili, J, in Josephat Mburugu v Silas Mwiti Mugwika [2022] KEELC 1244 (KLR), stated as follows: “As the saying goes, FANSUS IN UNO FALSUS IN OMNIBUS false in one thing false in everything, the appellant had built his case on quicksand and cannot

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therefore blame the court for finding that he had failed to prove any of his legal rights to land that had been infringed by the respondent.” 43. Lastly, in Antony Ayieko Oluoch & another v Francis Oluoch Juma [2017] KEELC 934 (KLR), the court stated thus regarding lies by a party before a court: “It is always good to be honest and truthful in a court of law…The truth is that the 1st Applicant lied on oath. In law, there is a maxim: FALSUS IN UNO, FALSUS IN OMNIBUS (False in one, false in everything). There is no telling what other lies the 1st Applicant has told in his affidavit. This court feels disinclined to look on the 1st Applicant favourably. The court is not happy that the 1st Applicant appears to have no respect for truth.”(Emphasis added) 44. It is against this backdrop that this court declines to believe the version of events by the Plaintiff, PW4 and PW5 on the circumstances under which the accident occurred. 45. This court finds the Defendants’ version of events on how the accident occurred consistent and credible. This means that the Defendants proved on a balance of probabilities that the accident occurred when the Plaintiff rammed into the Defendants’ trailer from behind while the trailer was in motion. Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) stated as follows on the liability of a driver who hits another motor vehicle from behind: A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence’ 46. The Plaintiff did not adduce any credible evidence to dislodge the prima facie case of negligence established against him by the Defendants. Such evidence would ordinarily include evidence that the Defendants’ driver suddenly stopped along the road or suddenly reversed without warning other road users. That is not the case in this matter.

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47. Taking the totality of the evidence on record, the inevitable conclusion to be drawn is that the Plaintiff was driving his motor vehicle at a high speed at the time of the accident which prevented him from braking on time to prevent him from ramming into the trailer ahead of him which he could clearly see thanks to his motor vehicle’s head lights which he admitted were functional on the date of the accident. 48. The Plaintiff’s actions at the time of the accident were contrary to the duty placed on a motor vehicle as was eloquently explained in Masembe v Sugar Corporation and Another [2002] 2 EA 434, thus: “When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.” 49. The long and short of it all is that the Plaintiff authored his own misfortunes by breaching the duty of care he owed to himself and other road users when he rammed into the Defendants’ moving trailer from behind. In the circumstances, this court finds the Plaintiff 100% liable for the accident. 50. A finding that the Plaintiff is to wholly blame for causing the accident means that the Plaintiff’s case must suffer the fate of dismissal. However, for completeness of the record and for appeal purposes, this court, being the trial court, must assess the quantum of damages as was well explained by the Court of Appeal in Andrew Mwori Kasaya vs. Kenya Bus Service (2016) eKLR, as follows: Turning to issue No. 2, the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No. 124 of 1993 (UR). The court made the following observations on this issue: The judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this Court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment”.

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…And in the case of Mayiya Byaba Loma & Another versus Uganda Transport Co Ltd. Uganda Supreme Court Appeal No. 10 of 1993IV KALR 138 where the court held that:“The judge erred in not assessing the damage (sic) he would have awarded had the appeal court been successful in her claim.” 51. Guided by the authorities, this court proceeds to assess the quantum of damages. Quantum (a) Cost of repair 52. The Plaintiff pleaded that his motor vehicle was to be repaired at Kshs. 888,560/=. The motor vehicle assessment report dated 03rd July 2025 produced by PW3 shows that the Plaintiff’s motor vehicle was written off after the accident. 53. The motor vehicle’s pre-accident value was assessed at Kshs. 890,000/= while the salvage value was assessed at Kshs. 25,000/=. 54. The Defendants did not lead any credible evidence to controvert the contents of the said motor vehicle assessment report. They sought to impeach the said inspection report through submissions. Submissions are not evidence. 55. The law in this jurisdiction is that an uncontroverted motor vehicle assessor’s report is sufficient proof of damage to a motor vehicle and the cost of repairing such a damaged motor vehicle. This legal position is in line with the holding by the Court of Appeal in Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya ( 2010) eKLR, where the court stated thus: “ Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are Common items and any price which the assessor might have given could be counter checked and either accepted or disproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor's report. The experience of the Assessor was not challenged and we think Onyancha J. was right in describing him as an expert, and his report as being opinion evidence. The Court had the right to accept or reject his opinion if the circumstances so dictated. The respondent, to our mind, particularized his claim in the plaint and called acceptable evidence to prove the same and we have no basis for faulting both the trial and first appellate Courts in the concurrent decision they came to.

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Indeed, the decision of David Bagine v. Martin Bundi Civil Appeal No. 283 of 1996 which Mr. Kaburu cited to us, does state that a motor vehicle Assessor's report would provide acceptable evidence to prove the value of material damage to a motor vehicle.” 56. Guided by the authority above, this court finds and holds that the Plaintiff proved on a balance of probabilities that, arising from the accident, his motor vehicle was written off with a pre-accident value of Kshs. 890,000/= and a salvage value of Kshs. 25,000/=. 57. In situations where a motor vehicle is written off, the Court of Appeal in Jimnah Munene Macharia v John Kamau Erera (Civil Appeal No. 218 of 1998) was of the view that: “Where there is no proof of actual repair the plaintiff is only entitled to the preaccident value less the salvage value.” 58. The position above was also followed in Bungoma Line Sacco Society Limited v Super Bargains Hardware (K) Limited [2021] eKLR. 59. In the circumstances, had the Plaintiff proved on a balance of probabilities that the Defendants caused the accident, this Court would have awarded the Plaintiff Kshs. 865,000/= under this head. (b) Special Damages 60. The Plaintiff pleaded for special damages comprising assessor’s charges of Kshs. 10,000/=, towing charges of Kshs. 13,500/= and official search of Kshs. 550/=. 61. The law in this jurisdiction is that special damages must be pleaded and strictly proved. This legal position was reiterated by the Court of Appeal in Herbert Hahn v Amrik Singh [1985] eKLR as follows: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. For they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 62. The receipts from NTSA, Almarai Enterprises and Paramount Assessors Limited proved the pleaded special damages of Kshs. 24,050/=. 63. It is for the reasons above that this court would have awarded the Plaintiff special damages of Kshs. 24,050/=. 64. The awards in (a) and (b) above being special damages would have accrued interest at court rate from the date of filing this suit till payment in full. DETERMINATION

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65. In sum, this suit is dismissed with costs. 66. Judgment accordingly. Signed and delivered via CTS at Bungoma this 27th day of August 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE

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