Analysis and Determination
14.I have reviewed the record in entirety. I have also read the submissions of the parties and I have considered the various grounds of appeal raised by the Appellants. The issues that arise for determination are essentially two:-I.Was the lower court correct in its finding on liability?II.Did the lower court arrive at the appropriate award of damages?
15.As this is a first appeal, I have a duty to re-evaluate the evidence before me. This principle as set out in the Court of Appeal decision of Selle and Another Versus Associated Motor Boat Company Ltd & Others  EA 123, where the court stated that:-
16.Looking at the record before me, there are two contrasting accounts of events. The question I must answer is, which one is more probable? Looking at the record, I am immediately struck by the lack of evidence available.
17.PW 1 testified that “I was called and informed by my friend, Salim, that my brother, the deceased had been involved in an accident”. Further, during cross examination, she testified “I did not witness the accident. I do not know what happened prior to the accident” and finally, “I found the deceased’s body at the scene of the accident”. That was essentially the totality of her testimony. No witness who actually saw the accident take place was presented to testify on behalf of the deceased.
18.The second witness for the Plaintiff did not add much value either. PW2, a police officer testified “I do not know how the accident occurred. I am not the investigating officer hence I cannot tell who’s to blame.” And further, “the investigating officer may have done a conclusive report. He is in a better position to explain the progress of the matter to its logical conclusion”.
19.The Defendants in the lower court did not call any witness whatsoever. Accordingly, the Magistrate reached this conclusion in the following terms: “it is not in dispute that an accident occurred and that the deceased’s succumbed due to the injuries he sustained. I find that the Plaintiff’s evidence is uncontroverted…the Defendants are therefore held 100% liable for the accident”
20.To my mind, this is where the Magistrate went wrong. He based his decision primarily on the fact that the Plaintiff’s evidence was uncontroverted rather than applying his mind to whether or not the Plaintiff had proved its case on the balance of probability as is required, see Charles Kavai (supra).
21.Further, I ask myself what exactly was the uncontroverted evidence before the Magistrate? Based on the record, the only “uncontroverted evidence” before him was that PW1 testified that she had been “called” and told that her brother was involved in an accident; further, and based on PW2’s evidence, that an accident had occurred. Neither of the witnesses’ testimony spoke to the cause of the accident. I do not think that the test as set out above in Kenya Power and Lighting Company Limited (supra) has been satisfied. The evidence was simply insufficient to reach a conclusion that the Appellants had actually caused the accident.
22.Further to the above, I do not think that the Magistrate ought to have equated the fact of the death with proof of negligence and a finding of liability. He ought to have applied the relevant test and principles applicable to a finding of negligence before reaching a conclusion that the Appellants were to blame on a balance of probability.
23.This court has often said that negligence must be proven. It is more than a mere word; it is a legal concept which refers to a failure to exercise reasonable care that results in harm, or death to the victim. In order to succeed, the Plaintiff ought to have proved (by way of evidence in the lower court) that there was a duty (on the part of the Appellants), that the Appellants breached that duty; and in doing so, caused the death of the deceased. In the present matter, no evidence whatsoever has been placed before this court to show that the Appellants actually caused the death of the deceased. Causation is critical and cannot simply be wished away.
24.In the end, I do not think that the Respondents discharged the burden of proof to establish their case on a balance of probability in the lower court. Having found for Appellants, the second issue is accordingly moot.
25.The orders of this court are as follows:-I.The Trial Court’s judgment dated July 12, 2019, of Hon BJ Ofisi (Mrs) Resident Magistrate in Milimani CMCC Case No 7085 of 2017) is hereby set aside in its entirety and the Respondents’ suit is dismissed with costs.II.The appeal is allowed and the judgment and decree in CMCC No 7085 of 2017 is set aside.III.Costs of the suit in the lower court and costs of the appeal are awarded to the Appellants.