The High Court of Kenya, in an appeal filed in the case of Joseph Ndungu vs Nathaniel Mwambonje and others Malindi HCCA No. 23 of 2019 (unreported), set aside the judgement of a magistrate’s court which found in favour of the respondent and ordered the retrial of the case before the magistrate’s court. The advocate for the successful appellant was the firm of Okello Kinyanjui and Company Advocates.
The respondent Nathaniel Mwabonje Kuto suing as the administrator to the estate of Kuto Mwambonje filed suit against the appellant alleging that on the 18th of June 2016, the deceased was walking along Bundacho heading to Kitsoeni, within Kilifi – Kaloleni Road, when the appellant’s motor vehicle being carelessly controlled, and driven permitted the said motor vehicle to cause an accident. That by the driver, agent, servant, being in control of motor vehicle registration number KBY 094A it veered off the road and violently knocked the deceased who at the time sustained fatal injuries in which he died on 21.6.2016 while undergoing treatment. The suit was heard in the magistrate’s court where judgment was given in favour of the respondent.
The appellant being dissatisfied with the decision appealed against the same. Though there were several grounds of appeal, the major ground of appeal was that the magistrate’s court had relied on hearsay evidence to find the appellant liable. The appellant’s complaint was that the trial court had relied on the evidence of the respondent who was not a witness to the accident.
The High Court heard the appeal and agreed with the appellant that there was indeed no evidence upon which the magistrate’s court could have found the appellant negligent. However, the High Court felt that the error fell with the magistrate in not calling evidence that would tend to support the respondent’s case. With that finding the High Court ruled as follows:
1. That the impugned Judgment of the trial court dated 23.4.2019 be and is hereby set aside.
2. The claim be remanded back to Kilifi Senior Principal Magistrate for a retrial before another Magistrates besides Hon. L. N. Juma (SRM); on a priority basis and to be concluded within sixty days (90) from the date of pretrial directions, but cumulatively not later than ninety (120) days with effect from post Judgment date of this court.
3. That the trial court consider it suitable admission of evidence by the investigating officer at Kilifi Traffic Base Commander, and conduct an examination of the witnesses and find facts based on all relevant evidence.
4. Based on the pretrial conference under Order 11 of the Civil Procedure Rules, the question of contributory negligence be ascertained in any event.
5. The costs of this appeal to abide the outcome of the primary suit and shall lie in favour of the appellant.
The decision to set aside the judgment of the magistrate’s court was a good decision. The High Court could not have made any other decision especially having regard to the fact that there was no eye witness to the said accident. However, the decision by the High Court to order a retrial and/or the taking of fresh evidence does not appear to have any legal backing. To begin with, it was not a prayer that was sought by any of the parties to the appeal and further, the jurisprudence from the Court of Appeal, whose decisions are binding on the High Court, is that for an appellate court to order retrial and/or the taking of fresh evidence, apart from other principles identified by the Court of Appeal in Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamud & 3 others  eKLR, such an order must be made sparingly and with abundant caution.
The decision is available on http://www.okadvocates.com/blog/wp-content/uploads/2020/04/Joseph-Kamau-Ndungu-vs-Nathaniel-Mwambonje-and-ors.pdf