1.By a Plaint dated 29th February, 2008, the Appellant herein sued the 1st and 2nd Respondents herein jointly and severally seeking general damages for pain, suffering, and loss of amenities, loss of earnings at the rate of Kshs. 10,000/= per month, special damages of Kshs. 108,926/=, costs of the suit and interest thereon.
2.In the said suit before the trial court, the Appellant pleaded that on or about 13th May, 2006 at around 7.00 p.m. along the Tharaka-Kambadi road, the Plaintiff was a lawful passenger in motor vehicle registration no. KUS 910 Isuzu lorry when the 2nd Respondent, being the driver, agent and/or employee of the 1st Respondent, so negligently, carelessly and recklessly drove the said motor vehicle that he caused it to overturn thereby occasioning the Appellant bodily injuries. The Appellant claimed that the said motor vehicle was owned by the 1st Respondent.
3.The 1st and 2nd Respondent filed a joint statement of defence dated 2nd August, 2010 in which they denied all the particulars of the claim against them and averred that if at all any accident occurred then the same was occasioned by an act of God and the same could not have been prevented by the exercise of reasonable skill, care and attention on the part of the 2nd Respondent.
4.On 3rd September, 2014, the Appellant filed an Amended Plaint dated on even date. He introduced the 3rd Respondent as a defendant and claimed that at all material times relevant to the suit, the 1st Respondent was the beneficial owner of the motor vehicle registration no. KUS 910 Isuzu lorry while the 3rd Respondent was the registered owner of the said motor vehicle. The Appellant further amended the particulars of injuries and special damages and introduced particulars of future medical expenses.
5.The duty of a first appellate courtA first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Company Limited & Others  E.A. 123 and in Peters v Sunday Post Limited  E.A.
6.Ordinarily, a first appellate court is the final court of fact and as such, a litigant is entitled at the appellate stage to a full, fair, and independent consideration of the evidence. The first appeal has to be decided on fact as well as on law. The first appeal is a retrial where the Judge evaluates the evidence and makes an independent finding.
7.In this case, the Appellant in seeking to prove her case gave evidence as PW1 then called one other witness, Dr. John Kimani Macharia. As PW1, the Appellant testified that on the material day, she was going home from Kathwana. That she was travelling at the back of the motor vehicle registration no. KUS 910 Isuzu lorry where there were no seats. She stated she paid Kshs. 70/=. That the 2nd Respondent drove the said vehicle at an excessive speed resulting in an accident. Further, that as a result of the said accident, the Appellant sustained fracture to her arm and was taken to Chogoria Hospital where she was admitted for 3 months from 13/05/2006 to 11/08/2006. Subsequently, she was admitted again in hospital on 16/05/2007 so that a metal implant could be inserted in her arm and the same was removed on 24/01/2010 at Chuka Hospital. The Appellant testified that her arm has never fully recovered and she cannot use it and that she blamed the driver and owner of the said vehicle for the accident.
8.On cross examination, PW2 stated that she has not healed and she still has pain on her right hand. That she was a lawful passenger in the subject lorry as she had been allowed to board the vehicle by the driver and conductor of the said lorry. Further, that she had not boarded the lorry alone as there were around 15 passengers who boarded the lorry. PW1 denied that the lorry was for transporting sand.
9.PW2, Dr. John Kimani Macharia, testified that he examined the Appellant on 16/07/2007. He noted that the Appellant had a history of being involved in a road traffic accident on 13/05/2006 where she sustained injuries and was admitted and treated at Chogoria Hospital. According to PW2, the Appellant furnished him with treatment sheets, x-ray films and discharge sheet from the hospital. PW2 stated that in his opinion, the Appellant sustained a fracture right humerus which was managed by screwing and plastering and that she was likely to develop arthritis or stiffness on her right elbow. PW2 further stated that he examined the Appellant again on 21/06/2014 and noted that the Appellant was unable to use her right upper arm in normal activities like writings, and lifting and that the fracture had not healed and had formed a false joint. PW2 formed the opinion that the Appellant had developed a non-union of the fracture making it impossible to use her right upper limb. PW2 then prepared a medical report which he produced in evidence.
10.On the other hand, the 2nd Respondent testified as DW1. He adopted his statement dated 27/06/2019 as his evidence in chief. On cross examination, he admitted that he was the one driving the subject motor vehicle on the material when the same was involved in an accident. DW1 stated that he reported the incident to the police and was charged with a traffic offence in Traffic Case No. 818 of 2006 in which he pleaded guilty and was fined Kshs. 2,000/=. On re-examination, DW1 denied that he had carried the Appellant as a passenger. He stated that on the material day, they stopped at Kathwana Centre to eat food before they started their journey. That on the way, he heard someone banging the body of the vehicle from behind. He stopped the lorry and that is when he saw that there was a lady inside the rear of the lorry and she had been injured. According to DW1, he was carrying sand on the lorry and the lady was seated on the sand. He denied that the allegation that he had allowed the Appellant to board the lorry and stated that he did not know at what point the Appellant boarded the vehicle. DW1 further stated that he took the Appellant to the hospital after the accident.
11.DW2 was Jaspher Murithi Mutegi. He also adopted his statement dated 27/06/2019 as his evidence in chief. On cross examination, he stated that he was employed by the 1st Respondent as a turn boy for the subject motor vehicle. That the vehicle was an open body lorry that was used to carry sand. According to him, they had not carried anyone on the material day as a passenger. He corroborated DW1’s testimony stating that they had carried sand. That they had a meal at Kathwana before starting their journey. Further, that they did not see anyone behind the lorry after they came back from eating. That they heard someone banging at the rear of the lorry and on checking, they found the Appellant on top of the sand. The Appellant was injured on her right hand and they took her to Chogoria Hospital and reported the incident to the police on the following day.
12.In his submissions, the Appellant urged the trial court to find the Respondents 100% liable for the said accident and proposed for judgment to be entered in his favour against the Respondents by an award of Kshs. 2,000,000/= in general damages, Kshs. 350,000/= for future medical expenses and Kshs. 146,860/= as special damages.
13.In dismissing the suit with costs to the Respondent, the learned trial magistrate found that it was unbelievable from the evidence on record that the Plaintiff was legally travelling in the subject lorry having paid fare of Kshs. 70/=. That it was also not believable that the driver and conductor of the said lorry allowed the Appellant to board the lorry and seat at the rear back on sand. In addition, that it was also not believable that there were other passengers who were travelling with the Appellant on the lorry. In her view, the trial magistrate stated that if indeed the accident did occur as alleged by the Appellant, then one wonders why it was only the Appellant who got injured and not any of the other passengers. The trial court went on to state that had the Appellant succeeded in her case against the Respondents, then the court would have awarded Kshs. 800,000/= as general damages, Kshs. 350,000/= as future medical expenses and the amount proceed as special damages.
14.Aggrieved by the decision of the trial court, the Appellant instituted the instant appeal based on the eight (8) grounds of appeal listed in her Memorandum of Appeal dated 23rd June, 2022. The appeal is opposed by the Respondents and the same was canvassed by way of written submissions.
15.It was the submission by the Applicant that the learned trial magistrate erred in law and fact in dismissing her case especially against the weight of the evidence adduced before her. Relying on the case of Bentor Atieno Obonyo v. Anne Nganga & Another  eKLR, the Appellant submitted that the burden of proof was on the Respondent to show that they were not liable for occasioning the injuries on the Appellant. The Appellant faulted the learned trial magistrate for allegedly relying on matters not pleaded and wrongly applying the maxim of volenti non fit injuria. According to the Appellant, it is clear from the evidence adduced during trial as well as the corroborated evidence from the witnesses that the Respondents were liable and culpable jointly and severally for the bodily injuries occasioned upon the Appellant.
16.On their part, it was submitted on behalf of the Respondents that the honourable trial court took into consideration the entirety of the pleadings and evidence as presented by the Appellant and was justified to find that the Appellant did not make her case to the required standard. That the Appellant did not present any evidence to corroborate her version of events. Further, that the testimony of the Appellant was contradictory as she stated that she paid fare of Kshs. 70/= on the one part and subsequently claimed that she paid Ksgs. 100/=. According to the Respondents, the fact that the Respondent may have admitted to criminal liability with regard to the traffic offence he was charged with was not proof of tortious negligence on their part. The Respondents relied on the case of Mackenzie Maritime (K) Limited v. Juma Dzombo Juma & Another  eKLR to buttress this position. The Respondents thus urged this Court to dismiss the instant appeal with costs to the Respondents.
Issues for Determination
17.I have considered the grounds of appeal, the record of appeal as well as the respective submissions by the parties. The main issue for determination is whether or not the Appellant proved her case against the Respondent on a balance of probability.
19.The main question in this case is whether the evidence adduced before the trial court established that the Respondents were to blame for the accident. The law pertaining to negligent conduct is based on the simple but broad premise of reasonable conduct. The law demands that a person, who is capable of taking care of himself and appreciating his own interests and the dangers thereto, should take the same reasonable precautions for his own interests as well as others.
20.Turning to the evidence on record, it is clear there is no dispute that the accident occurred on the material day. There is also no dispute that the Appellant sustained bodily injuries as a result of the accident. What is contested is who was to blame for the accident. The testimony of the Appellant was that she was a lawful fare-paying passenger on the subject motor vehicle when the same was involved in an accident. I have herein above summarized the testimonies by the parties and I need not rehash it here.
21.In my view, the doctrine of volenti non fit injuria applied in this case. The doctrine of volenti non fit injuria has been explained to be applicable where the claimant voluntarily agrees to undertake the risk of harm at their own expense. In Edwin Chiroto Mandera v Mureithi Charles & another  eKLR the Respondent had succeeded in the defence of volenti non fit injuria was based on the facts of the case. In that case, it was submitted that by boarding the truck without the knowledge or authority of the driver, and at the rear which was not by design capable of carrying passengers, he exposed himself to risk which he knew he ought not to.
22.In this case, there is no doubt that the Appellant was a passenger in the subject motor vehicle on the material day. The 1st and 2nd Respondents admitted this fact but argued that the Appellant boarded the vehicle without their knowledge and at her own risk. The Appellant, on the other hand, asserted that she boarded the motor vehicle as a fare-paying passenger. The evidence by DW1 and DW2 was consistent and well corroborated and was to the effect that they did not know that the Appellant had boarded the lorry. In my view, the Appellant acted freely and voluntarily in boarding the motor vehicle with full knowledge of the nature and extent of the risk she ran but agreed to incur the same. As such, the trial court was correct in dismissing the suit for failure by the Appellant to prove negligence on the part of the Respondents on a balance of probability which is the standard of proof in civil cases. In the case of Hellen Wangechi –v- Carumera Muthoni Gathua (2015) KLR the court held that the burden of proof in civil cases is on a balance of probabilities and quoted from the case of Miller –v- Minister of Pensions where the court held that…… “the standard of proof is well settled. It must carry a reasonable degree of probability….. if the evidence is such that the tribunal can say we think it more probable than not, the burden is discharged but if the probabilities are equal it is not..”
23.The trial magistrate held that she found it hard to believe the plaintiff …. This was finding of fact. The court had the opportunity to the see appellant and assess her demeanor. This court has to leave room for that. I find that considering the evidence on record, the appellant fell short of proving her case on a balance of probabilities. The finding by the trial magistrate was proper in the circumstances of this case.
24.I have considered the fact that the respondent had pleaded guilty to a charge of carrying uninsured passenger. This charge was not on the manner of driving. The failure to insure a motor vehicle cannot contribute to the cause of the accident and no liability can arise as envisaged under Section 47A of the Evidence Act (Cap 80 Laws of Kenya.
ConclusionI find that the appeal lacks merits. I order that it be dismissed with costs.