Automated Summary
Key Facts
A 7-year-old boy, Kelvin Gitari, died after being struck by a white lorry. The plaintiff's witnesses testified that children boarded the lorry, but the driver claimed he did not see any children. The trial magistrate dismissed the case due to lack of evidence establishing negligence or liability against the driver. The appeal was also dismissed because the appellant failed to file supporting submissions, and the court found no basis to overturn the lower court's decision. The court concluded that it was unclear how the deceased came into contact with the lorry to suffer fatal injuries.
Issues
The court addressed whether the driver of the white lorry was negligent in causing the fatal injury to Kelvin Gitari, a 7-year-old child, based on evidence that the deceased did not board the vehicle, the driver claimed no visibility of children at dusk, and there were no eyewitnesses to establish liability. The appeal was dismissed due to insufficient evidence of negligence and the appellant's failure to file supporting submissions.
Holdings
- The court dismissed the appeal filed by Patrick Gitari Mberia, upholding the lower court's decision to dismiss the plaintiff's case. The court found that the deceased did not board the lorry in question and that the driver was not negligent, as there was no eyewitness to the accident and the circumstances at dusk made it difficult to determine how the deceased sustained fatal injuries. The court further noted that the appellant failed to file written submissions in support of the appeal, and the plaintiff's witnesses did not establish the driver's causation in the accident.
- The court ruled that each party shall bear their own costs in this case.
Remedies
- The court dismissed the appeal from the judgment of Hon. P. Ngari delivered on 30th April 2012 in Chuka PMCC No. 38 of 2010.
- The court ruled that each party will bear their own costs of the suit.
Legal Principles
- The court dismissed the appeal due to the plaintiff's failure to meet the burden of proof, as the deceased was not shown to have boarded the lorry and no negligence was established.
- The court found no direct causal link between the driver's actions and the deceased's injuries, as witnesses did not confirm the deceased was on the lorry's trail guards.
Judge Name
HON. A. ONG'INJO
Passage Text
- I have perused evidence on record... giving consideration that I did not have advantage of seeing or listening to the witnesses physically find no reason to interfere with the findings of the Honourable Magistrate for reasons the appellant failed to file submissions in support of that appeal and secondly for reasons that even the plaintiffs witnesses particularly PW3 did not fault the driver DW1 with causation of the accident.
- It is unfortunate that such young life was cut short but it is a opponent the driver did not do anything that can be said to have been negligent conduct to make this court, overturn the findings of the lower court. The appeal is therefore dismissed.
- The trial magistrate found that it was established the deceased did not board the lorry in question and considering that it was getting dark at night the driver was not likely to have known that the deceased was running after the vehicle and being there was no eye witness, it is difficult to attribute any negligence or liability on the driver of the lorry or even the defendant.