1.The Appellant’s herein were the 1st and 2nd Defendants' respectively in Eldama Ravine CMCC NO. E009 OF 2020 in which the Respondent instituted a suit against them on 5th November, 2020.
2.It is the Respondent's case that on 21st May, 2018 or thereabout the Respondent was lawfully driving motor vehicle registration number KBL 852L along Nakuru-Eldoret Road at Equator when motor-vehicle registration number KBP 852L belonging to the 2nd Appellant and being driven by the 1st Appellant was so negligently and or carelessly driven caused it to hit Motor Vehicle Registration No. KBL 852L occasioning extensive damage to the same.
3.The Appellants' entered appearance on 27th April, 2021 and later filed their statement of defence on even date in which they denied the claim by the Respondent and averred that if at all an accident occurred (which they totally denied) the same was occasioned by the negligence on the part of the Respondent in the manner in which he handled, controlled and or managed motor vehicle registration number KBL 852L.
4.The matter came up for hearing on diverse dates wherein some documents were produced as evidence and some marked for identification.
5.However, after negotiations parties consented on liability in the ratio of 80:20: The only issue that was left for determination was on quantum, however parties agreed to canvass the same by way of written submissions. Consequently, on 14th April, 2022 judgment was entered in favour of the Respondent against the Appellants in the sum of Kshs 1,184,000/= plus costs and interest from the date of the judgment.
6.The Appellants' being aggrieved by the said judgment, preferred the present appeal by filing a Memorandum of Appeal [in which they raised the following grounds:
The Appellants Case
7.In their written submission dated 28th February 2023, the Appellant has consolidated all ground (i - iv) of the Memorandum of Appeal
8.That, the Respondent pleaded to have incurred the following damages;i.Pre-accident Value Kshs 2,100,000.00ii.Recovery and Towing Charges Kshs 75,000.00iii.Assessment fee Kshs 7,000.00iv.Tracing charges Kshs 30,000.00v.Estimated loss of revenue Kshs 200,000.00TotalKshs 2,412,000.00
9.That on the 11th of November. 2021 PW-2 John Jomo Mwangi testified that; on 21st May, 2018 at around 9.00pm he received a call from his driver PW-1 James King'ori Nyagaka that he had been involved in a road traffic accident at Equator. PW-2 testified that PW-1 did not sustain any injuries but damage was occasioned on his motor vehicle registration no KBL 852L in which he now Seeks for compensation. On cross-examination PW-2 confirmed that there were no receipts for recovery and towing charges, assessment fee and tracing charges before court at the time of hearing.
10.The Appellant further submits that, PW-2 further testified that he had a contract between Arishaw and Mt Meru in Uganda to deliver fuel from Mombasa to Kampala worth Kshs 8,000,000.00 which he lost after the accident. The Respondent produced invoices as proof of loss of revenue but the same were not admitted as evidence rather marked as PMFI-5. PW-2 further testified that he engaged an assessor to assess the damage occasioned to motor vehicle registration no KBL 852L. The assessors report cited the pre-accident value of the vehicle to be Kshs 2,100,000.00 and the Salvage value to be Kshs 620,000.00, however the report was not produced as exhibit but was marked as PMFI-6.
11.That on 27th January, 2022, the matter came up for mention wherein parties recorded a consent on liability in the ratio of 80:20 and proceeded to prepare submissions without going for hearing in order to have the makers of the documents marked for identification attend court and produce the Same, The trial court then proceeded to prepare the judgement wherein it relied on the assessor's report marked for identification to award the Respondent the sum of Kshs 1,184,000.00 which the appellants herein are appealing against.
12.The Appellants' position is that the trial court misdirected itself by relying on the plaint and the plaintiffs list of documents and more specifically the assessor's report which were filed in the said suit to arrive at its decision. It is important for this honourable court to note that no hearing took place address the assessors report and the invoices marked for identification nor did the parties agree to produce any document by consent or otherwise.
13.It is the Appellants position that, parties only recorded a consent on liability and the consent did not deal with the calling of witness. It was not stated in the consent that the aforesaid documents were to be produced in evidence. It would seem that the court was misguided believing that parties having recorded a consent on liability all the documents filed in the suit were automatically admitted as evidence.
14.The Appellants' position is that once parties had recorded a consent on liability, the next step would have been for the Respondent to prove the loss suffered particularly as regards special damages which must not only be specifically pleaded but must be strictly proved by calling the makers of the documents marked for identification to attend court and be examined on the same. The invoices and assessment report were not produced as exhibits before the trial court.
15.The Appellants submit that, the law is quite clear on how exhibits are to be produced. Even in a full-fledged trial, if documents are simply referred to by witnesses but not formally produced, they do not acquire the status of exhibits in the case and can therefore not form as a basis to any award.
16.To further buttress this point, the Appellants' refer to the case of Kenneth Nyaga Mwige v Austin Kiquta & 2 others  eKLR wherein the court had this to say:
17.Further reliance is placed the Court of Appeal case, in Finmax Community Based Group & 3 others v Kericho Technical Institute  eKLR the court observed that:
18.The Appellants Submit that, in this case, no witness was called to produce the invoices and the assessors report. From the proceedings, it is very clear that parties did not indicate to court on the date that they consent on liability that they would also be consenting to the production of the aforesaid documents without calling their makers.
19.That, the Respondent ought to have called the makers and them produce the documents which would have given the Appellant herein an opportunity to cross-examine the maker. As long as this was not done by the Respondent greatly reduces the value and weight of the evidence.
20.That, it is instructive to note that, special damages must both be pleaded and proved, before they can be awarded by the court. In Hahn vs. Singh, Civil Appeal No. 42 Of 1983  KLR 716, at P. 17, and 721 the Court (Kneller, Nyarangi JJA, and Chesoni Ag. J.A. – as he then was, emphasised that:
21.That, the rationale for requiring a party to plead and prove special damages was given by the Court in Jackson Mwabili v Peterson Mateli  eKLR, as follows;
22.The Appellants further submit that, the learned Magistrate failed to consider and/or ignored the Appellants' submissions on record thus arriving at a wrong conclusion in assessing damages. The impugned judgement of the lower court is found at [page 72-76 of the Record of Appeal. Of particular importance is [page 73 of the Record of Appeal] where the learned trial Magistrate proceeds to assess the quantum of damages on the basis of the documents in the Plaintiff's List of documents and renders his decision on quantum. It is also important to note that the trial court only refers to the list of documents by the Plaintiff and ignores that which was tendered by the Appellants in callous disregard of the principles of fair hearing enshrined in Article 50 of the Constitution of Kenya, 2010.
23.That the upshot of the Appellant's submissions is that, the appeal filed herein has merit, the same should be allowed and the lower court decision reversed and/or set aside and substituted with a judgment that meet the ends of justice.
24.The Respondent humbly submit that, it is not in dispute that the accident happened. Neither is the admission of liability disputed as it is evidenced by the consent at 80:20 on liability in favour of the Respondent. It is also not in dispute that the motor vehicle belonging to the Respondent sustained damage.
25.That, the appellants demanding the failure to call an assessor is trying to steal a match after consenting to liability. We rely on the principle of nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong)
26.That it is an established legal principle that the fact that damages cannot be assessed with certainty does not relieve the wrong doer of the necessity of paying them as every wrong must be remedied, and the court is duty bound to do the best in the circumstances no matter the difficulty, reliance is placed on the following authorities:i.McGregor on Damages 19th edition paragraph 10-001 paragraph 10-003 and page 348 to 350ii.Samuel Kariuki Nyangoti v Johaan Distelberger  eKLRiii.Patrick Wambugu Gitahi t/a Wambugu Garagev Kenya Power Limited Company  eKLR
27.The Respondent submit that, the best judge of the facts of the case was the learned magistrate, having heard the plaintiff's witnesses and arrived at the conclusion that the evidence placed before him was sufficient.
28.That is also true in the fact and law that it is not mandatory to produce an assessment report.
29.That the evidence of the Respondent in the trial court was enough and that, the burden of proof in civil matters is on a balance of probabilities and failure to call the assessor did not take anything away from his duty which in our humble submission was discharged.
30.That, the Appellants have relied on the court of appeal decision in Finmax Community Based Group & 3 others Vs Kericho Technical Institute (2021) eKLR where the court allowed the appeal since the case was instituted by an unincorporated organization thus lacking capacity to sue in its own name. The case the appellant seeks to rely on is not relevant to the present appeal.
31.The Respondent submit that, the Appellant have also sought to rely on the Court of Appeal decision in the case of Kenneth Nyaga Mwige v Austin Kiguta (2015) eKLR which was a defamation claim that dealt with issues to deal with general damages and exemplary damages unlike the case that is the subject of this Appeal.
32.The Respondent submit that, all the documents were produced by consent of all parties and the appellant cannot change tune by challenging the evidence in the documents. Reliance is placed on the case of David Chege Ndungu v Robert Macharia and 2 others  eKLR.
33.The Respondent submit that, the Court of Appeal in Nkuene Dairy Farmers Co-operative Society 7 Another Vs Ngacha Ndeiya  eKLR held:
34.That, the decision in Nkune has been echoed and relied upon in Geranda Maria Simon Vs Global Trucks  eKLR where the High Court at Naivasha found that an assessor's report without calling the assessor is sufficient evidence of material damage claim.
35.That it is clear that the Respondent only needed to prove the extent of the damage to his motor vehicle. The Respondent submit that, it is a cardinal principle in law that the burden of proof was on the plaintiff at all times and was on a balance of probabilities.
36.Further reliance is placed on the case of Jebrock Sugarcane Growers Company Limited v Jackson Chege Busi Civil Appeal Number 10 of 1999 which has been cited by the Court of Appeal in Samuel Kariuki Nyangoti v Johaan Distelberger  eKLR where the court stated as follows:
37.Further the Respondent posits that, it is well settled that the award of damages is always at the discretion of the trial court. An appellate court should not interfere with the trial court's award on damage unless it is satisfied that in awarding the damages, the trial court misapprehended the facts or applied the wrong legal principles or that the award was either too high or too low as to lead to an inference that it was an erroneous estimate of the loss or damaged suffered.
38.That, the Learned trial Magistrate used the correct principles in settling, that the Plaintiff was entitled to the differential amount between the vehicle's pre-accident value and the salvage value as was determined in the case of Permuga Auto Spares & Another v Margaret Korir Tagi  eKLR where Mulwa J held that:
39.The Respondent submit that, this position was advanced in the case of Concord Insurance Company Limited v David Otieno Alinyo & Another  eKLR where the Court of Appeal while discussing the measure of damage to chattels agreed with the principles laid down by Herman LJ in Darbishire v Warran [196311 WLR 1067 at page 1070 thus.
40.That more recently in Burdis Vs Livsey  3 WLR 702, the English Court of Appeal stated at page 792 paragraph 84:
41.That, the Appellants seek to rely on the case of Jackson Mwabili Vs Peterson Mateli (2020) eKLR which the Respondent submit that it is not relevant as it pertained to loss of user which was not awarded by the lower court in this present appeal.
42.That. the upshot of the Respondent's submission is that, the appeal as filed has no merit and its only aim is to delay the Respondent's claim therefore it is in the interest of justice that the same should be dismissed with costs.
Analysis and Determination
43.That this being the first appeal against judgment and on finding of fact, is by way of a re-trial and the Appellate court is duty bound to re-evaluate and scrutinize the totality of evidence on record in order to draw its own conclusions as was held in the much-celebrated case of Selle v Associated Motor Boat Co. Ltd (1968) EA 123:-
44.As a first appeal court according to Peters v. Sunday post Ltd (1958) EA 424, I am only allowed to interfere with a finding of fact, if, it is not supported by evidence or it is contrary to the totality of the evidence produced at trial.
45.This court has considered the appeal herein, the evidence before the trial court, the grounds of appeal and the rival submissions by both the appellant and respondents’ counsel both before the trial Magistrate and before this court. In my humble view, the only issue for consideration is whether the Appellant Proved the damages resulting from the alleged accident on a balance of probability?
46.After re-assessing the entire evidence, I find as a fact that, the trial court was in error to admit marked documentary evidence not produced or proven in evidence and proceeded to ascribe probative value and asses quantum on the basis of the Respondent’s list of documents.
47.This court finds that the trial magistrate was in gross error in his view at Line 14-19 page 73 Record of Appeal that:
48.This court has perused the court record and the same shows that, the case the subject matter of this appeal, came up for hearing on the 11th day of November 2021, PW1 testified and adopted his written statement as his evidence in chief, PW2 testified and adopted his statement as evidence in chief, he further produced Exhibits 2, 3, 4, 7 and 8 and identified PMFI 1 and PMFI5, PMFI 6 being the police abstract, Invoices and the Assessors Report respectively.
49.At the Close of hearing on the 11th November 2021, Mr. Kogi dutifully informed the court he shall at a future date be calling two more witnesses.
50.On the 22nd January 2022, the matter came up for hearing, Mr. Gatonye held Mr Mureithi’s brief for the Appellants herein while Mr. Nyagaka held Mr. Kogi’s brief for the Respondent herein. Mr. Nyagaka indicated that parties hand agreed to enter a consent at the ratio of 20;80 on liability, urging the court to give them a date for submissions. The position was supported by Mr Gatonye.
51.The court proceeded to adopt the consent marking the matter to be mentioned on the 3rd March 2022.
52.There is no record of the intention of the parties to either by consent produce all other documents on record yet to be produced and in fact the record is silent as to whether the parties closed their respective cases.
53.Order 18 of the Civil Procedure Rules (2010), Cap 21 Laws of Kenya is very comprehensive on how a trial should proceed in court including the recording and production of evidence of importance to this court is Order 18 Rules 1 and 2 which provide as follows: -(1)On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.(2)The other party shall then state his case and produce his evidence, and may then address the court generally on the case. The party beginning may then reply.(3)After the party beginning has produced his evidence then, if the other party has not produced and announces that he does not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to address the court at the conclusion of the address of the other party for the purpose of observing on the case or cases cited.”
54.In view of the above provisions, can the procedure that was adopted by the parties be said to have complied with the procedure as laid down in the Civil Procedure Act? I find not.
55.I am persuaded by the court of appeal in the case of Kenneth Nyaga Mwige vs Austin Kiguta and 2 others  eKLR that had this to say on production of documents.
56.The Court of Appeal further stated: -Once a document has been marked for identification it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for is authenticity and relevance to the facts of the case. Once the foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit; it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an authenticated account.
57.This court is well guided by the Court of Appeal in the case of Nzuki Isaac Muveke v Francis Njogu Niehia  eKLR:-The Court of Appeal is entitled to interfere (with a finding) if one or more of the following mattes are established:
- first, that the Judge misdirected himself in law;
- secondly, that he misapprehended the facts;
- thirdly, that he took account of or consideration of which he should not have taken account;
- fourthly, that he failed to take account of or consideration of which he should have taken account;
- fifthly, that his decision, albeit a discretionary one, is plainly wrong."
58.On this sole important issue, the law is clear that he who alleges must proof. The term burden of proof draws from the Latin Phrase Onus Probandi and when we talk of burden we sometimes talk of onus.
59.Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term ‘burden of proof’ has two distinct meanings:
60.The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence.
61.Section 107 of Evidence Act defines Burden of Proof as– of essence the burden of proof is proving the matter in court. subsection (2) Refers to the legal burden of proof.
62.Section 109 of the Evidence Act exemplifies the Rule in Section 107 on proof of a particular fact. It is to the effect that, the burden of proof as to any particular fact, lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the court is the person said to bear the burden of proof. Thus, if one does not discharge the burden of proof then one will not succeed in as far as that fact is concerned.
63.The Court of Appeal in Dakianga Distributors (K) Ltd v Kenya Seed Company Limited  eKLR stated:
64.I am of the Considered View that, the Respondent had not discharged the burden of proof and proved on a balance of probabilities, that the Appellants were negligent, causing the aforesaid accident and that as a result thereof he suffered loss and damage. The Consent on liability at the Ratio of 80:20 is indicative of where the blame lay.
65.The decision of the trial magistrate’s finding, that when the parties recorded a consent on liability they intended that documents to prove quantum be admitted without calling the makers was in error and is hereby set aside.
66.In view of all the foregoing and since the documents referred to in the list of documents were not formally produced in support of the suit, coupled with the fact that the correct procedure for recording and production of evidence as laid down in Order 18 Rules 1 and 2 was not complied with, the learned magistrate, with tremendous respect, fell into error and the whole trial was rendered a nullity. There was no trial at all as contemplated by the law.
67.This Appeal accordingly succeeds on that limb the Judgment/Decree of Hon. Richard Koech, Senior Principal Magistrate at Nakuru, entered on the 14th day of April 2022, in Eldama Ravine CMCC Number E009 of 2020 is hereby set aside.
68.The matter is hereby remitted to the trial court for hearing and determination in the manner stated hereinabove.
69.Since the parties had entered into a consent on the flawed procedure, each party should bear its own costs of the appeal.It is so ordered.