1.This is an appeal by Janet Awour Ogada (the appellant) against the judgement and decree of Hon. M. Obiero (SPM) dated and delivered on 20/1/2022 in Migori CMCC No. 1666 of 2016. The appellant was the plaintiff in the trial court while the 1st and 2nd respondents were the 1st and 2nd defendants respectively.
2.By a plaint dated 29/1/2016, which was amended on 30/1/2020, the appellant filed a suit seeking general damages, special damages, costs of the suit, interest and any other relief against the respondents. The appellant pleaded that the 1st defendant was the owner, possessor, controller and/or the insured of motor vehicle registration number KCH 523F (suit motor vehicle) while the 2nd respondent was the driver of the suit motor vehicle; that on or about 7/11/2016, the appellant was lawfully travelling in the suit motor vehicle when the suit motor vehicle collided with motor vehicle registration number KBK 497V, hence occasioning the appellant severe injuries. The appellant pleaded the particulars of the negligence on the part of the 2nd appellant, particulars of injuries and particulars of special damages.
3.The appellant further pleaded that the doctrine of res ipsa loquitor, the provisions of the Highway Code, Traffic Act and other relevant laws were applicable.
4.The respondents entered appearance and filed a defence dated 9/4/2018 which was amended on 28/2/2020. The respondents denied the occurrence of the said accident and the injuries sustained by the appellant. The respondents blamed the driver of motor vehicle registration number KBK 497V and particularized the negligence on the part of the driver of the motor vehicle registration number KBK 497V. The respondents also denied that the doctrine of res ipsa loquitor was applicable. The respondents asked the trial court to dismiss the suit with costs.
5.The suit proceeded for hearing and the appellant testified as PW1. The respondents did not call any witnesses in support of their case.
6.The trial Magistrate in a judgement dated 20/1/2022 dismissed the appellant’s suit with costs.
7.Being dissatisfied with the judgement, the appellant preferred the instant appeal on the following eight (8) grounds: -
8.The appellant prayed that this appeal be allowed, the decree of the lower court be set aside and judgement be entered in favour of the appellant at 100% on liability. The appellant also asked to be awarded costs of the lower court and the appeal herein.
9.The appeal was canvassed by way of written submissions. The appellant filed her submissions dated 13/1/2023 on even date and the respondents filed their submissions dated 24/1/2023 on 25/1/2023. I have duly considered the submissions by both parties.
10.This being the first appeal, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusion but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another vs Associated Motor Boat Co. Ltd (1968) EA 123.
11.It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or on demonstrably wrong principles not supported by evidence or on wrong principles of the law. This was the finding of the Court of Appeal in Mbogua Kiruga v Mugecha Kiruga & another (1988) eKLR.
12.The Court of Appeal in Alfarus Muli vs. Lucy M Lavuta & Another Civil (1997) eKLR held that:-
13.Guided by the above principles, I have considered the appeal, the proceedings in the trial court and the submissions by both parties. The main issue for consideration is:-
14.There is no dispute that the respondents did not call any witnesses in support of the defence. The consequence thereof was succinctly stated by Makau J in North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi (2019) eKLR it was held:-
15.In the absence of the respondents calling any witnesses or any documents in support of their case, it is proper to conclude that the appellant’s case remained uncontroverted. However, there is a duty imposed by the law for the plaintiff to prove his case on a balance of probability as per Sections 107 and 108 of the Evidence Act.
16.In Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR it was held that:-
17.Similarly, the Court of Appeal in Karugi & another vs Kabiya & 3 others (1983) eKLR held: -
18.Therefore, even in the absence of evidence controverting the appellant’s case, the appellant needed to prove her case against the respondents on a balance of probabilities.
19.In Gideon Ndungu Nguribu & another vs Michael Njagi Karimi (2017) eKLR the Court of Appeal stated thatand proceeded to quote Lord Reid in Stapley vs Gypsum Mines Ltd(2)  A.C. 663 at p. 681 as follows:-
20.The appellant’s case was based on the negligence of the 2nd respondent. The Court of Appeal in Kiema Mutuku vs Kenya Cargo Hauling Services Ltd (1991) 2 KAR 258 held: -
21.In Masembe vs. Sugar Corporation and Another (2002) 2 EA 434, it was held that:-
22.Musinga J (as he then was) in South Nyanza Sugar Co. Ltd vs. Wilson Ongumo Nyakwemba (2008) eKLR quoting Statpack Industries Limited vs. James Mbithi Munyao HCCA No. 152 of 2003 (UR) where it was held that:-
23.At paragraph 6A of the amended plaint, the appellant pleaded: -
24.During her testimony in chief, on the manner in which the accident occurred, the appellant stated: -
25.In cross examination, the appellant reiterated: -
26.It is clear from the testimony of the appellant both in chief and in cross examination, that the suit motor vehicle she was travelling in, was hit from behind by another motor vehicle. The suit motor vehicle which she was travelling in, was not the one which hit another motor vehicle from behind as pleaded. There is variance between the pleadings and testimony of the appellant.
27.From the testimony of the appellant, she did not lead evidence to show that the damage suffered resulted from the defendants’ negligence. There has to be a nexus between the damages suffered and the persons who are alleged to have caused the damages due to negligence. This is the law on causation. Alnashir Visram J (as he was then) addressed the requirement for causation when he stated in Elijah Ole Kool vs George Ikonya Thuo (2001) eKLR :-
28.If at all it is a different motor vehicle which hit the suit motor vehicle from behind, I do not see how the driver of the suit motor vehicle ought to have been blamed. The appellant should have sued both the owner and/or the driver of the other motor vehicle which hit the suit motor vehicle from behind if she could not tell who the negligent party was. Order 1 rule 7 of the Civil Procedure Rules provides that: -
29.The trial Magistrate observed as follows in his judgement: -
30.The respondents in their amended defence, attributed negligence on the part of the driver of motor vehicle registration number KBK 497V. The respondents averred that the owners, possessors, controllers and/or insured of motor vehicle registration number KBK 497V be held vicariously liable for the acts of his driver, agent and/or servant.
31.The respondents having denied being the persons who caused the accident, they should have taken out third party proceedings against the owners, possessors, controllers and/or insured of motor vehicle registration number KBK 497V as provided for under Order 1 Rule 15 of the Civil Procedure Rules.
32.Failure to take out third party proceedings, would mean that the respondents were to shoulder 100% liability. In the case of Benson Charles Ochieng & another v Patricia Atieno (2013) eKLR Kimaru J (as he was then) held:-The trial court was also of the same view when it held: -
33.Flowing from the above discourse, the respondents would have been held 100% liable for the road traffic accident which allegedly occurred on 7/11/2016 for the sole reason that they failed to take-out third-party proceedings against motor vehicle registration number KBK 497V. However, the said vehicle was not made part of these proceedings.
34.I find that the trial court was right in finding that the appellant had failed to prove her case against the respondents to the required standard of balance of probabilities and the trial court rightly dismissed the suit.
35.In the end, I find no merit in the appeal. The appeal is hereby dismissed with costs to the respondent.