[2014] KEHC 3196 (KLR)
The court found that the appellant's evidence that the respondent was driving at high speed was credible and unchallenged, and that the respondent failed to enjoin the alleged negligent third party (owner/driver of KAE 066J) to the proceedings. The occurrence of the accident and the injuries were not disputed. The...
Source-derived case information.
- Citation
- [2014] KEHC 3196 (KLR)
- Parties
- Appellant: Arnold Musa Mbalanya; Respondent: Jack Ayimbo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 177 of 2011
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- HK Chemitei
- Legal Topics
- Negligence, Road Traffic Accidents, Personal Injury, Apportionment of Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Arnold Musa Mbalanya
Appellant
Jack Ayimbo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether negligence was established against the respondent in the occurrence of the road traffic accident.
- 2 Whether the respondent was liable for the injuries sustained by the appellant.
- 3 Whether the trial court erred in failing to enjoin the owner of motor vehicle KAE 066J as a third party.
Ratio Decidendi
The court found that the appellant's evidence that the respondent was driving at high speed was credible and unchallenged, and that the respondent failed to enjoin the alleged negligent third party (owner/driver of KAE 066J) to the proceedings. The occurrence of the accident and the injuries were not disputed. The fact that the respondent's vehicle hit another vehicle from behind was taken as prima facie evidence of negligence. The respondent's failure to call witnesses or provide evidence to rebut the appellant's case further supported the finding of liability. The trial court's finding that negligence was not established was therefore set aside, and the appeal was allowed. The quantum...
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The appellant is awarded Kshs. 480,995 together with costs and interest from the date of judgment at the trial court.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL APPEAL NO. 177 OF 2011
ARNOLD MUSA MBALANYA.................................APPELLANT
VERSUS
JACK AYIMBO......................................................RESPONDENT
J U D G M E N T
1). The appellant on 6-1-2009 rode on his friend's motor vehicle the respondent herein from Kisumu to Maseno. On the way they were involved in a road traffic accident. He sustained bodily injuries namely:
(i) Injuries and swelling on the left upper limb.
(ii) Deformed left arm.
He then proceeded to file his claim for compensation but he lost the suit hence this appeal.
In the Memorandum of Appeal dated 21-11-2011 the appellant has attacked the lower court judgment on 4 grounds which can be summarised as follows:
1. the trial court erred in finding that negligence was not established against the respondent.
2. that the plaintiff ought to have enjoined the 3rd party, the owner of motor vehicle Reg. No. KAE 066J.
3). The appellant called two witnesses. PW2 produced medical documents from Maseno Mission Hospital. PW3 the police officer from the traffic department produced the police abstract to establish that an accident indeed occurred. The respondent on the other hand did not call any witnesses.
4). The question that needs to be established is whether negligence was proved against the respondent. It is not in doubt that the appellant was traveling aboard the said motor vehicle. The ownership of the said motor vehicle was not a subject of dispute at the lower court. Neither was the occurrence of the accident an issue.
5). The appellant testified as follows:
“I agreed to take the lift and we left Kisumu at around 7. 00 p.m Gilbert drove the car with speed. Near Maseno as we drove uphill, another motor vehicle joined the road from the left side infront of our car. Our car rammed into the vehicle.....”
6). On cross examination he maintained that the respondent was speeding. The accident from the evidence on record occurred when another motor vehicle KAE 066J joined the road from a junction. Who was then to blame for the accident? Certainly the respondent was not in control of the vehicle but the driver who had allowed him to hike a lift. Was the driver of the other vehicle negligent? This question could have been answered by the respondent or his driver. There is no evidence to show that he was brought in as a 3rd party. The respondent at paragraph 16 of its defence stated as follows:
“Absolutely and without prejudice to the foregoing and in the alternative, the defendant hereby given notice that he shall apply to enjoin the owner driver, servant, agent or employee to motor vehicle Reg. No. KAE 066J to this suit as on the 3rd party”.
7). This of course was never effected. Contrary to the findings of the trial court, there was no objection for the appellant to bring the 3rd party as a defendant. It was incumbent upon the defendant to bring the said 3rd party in the proceedings to establish its culpability.
8). I do find that the assertion that the respondent was driving at a high speed by the appellant believable. If he was not then he would have rammed into the other vehicle which was joining from the junction. If the accident was caused by the other vehicle then there was nothing difficult in bringing it as a party to the proceedings. Equally, PW3 confirmed that he charged the driver of motor vehicle Reg. No. KBE 884Y with a traffic offence. Prima facie therefore, and regardless of the outcome of the said traffic offence, the traffic police believed that he was on the wrong. I do find that negligence was established against the defendants wholly.
9). My findings are further buttressed by the fact that the respondent hit the other vehicle from behind which shows that it was already properly on the road.
The other issue on quantum was not challenged. I have perused the medical reports as well as the treatment documents produced by PW2. The same supports the injuries. I have also perused the court's finding on quantum and the authorities relied on and I do not see any reason to disturb the same.
In the premise I shall allow the appeal. On quantum I do adopt the trial court's finding and order the appellant to be paid the sum of Kshs. 480,995/= together with costs and interest from the date of the judgment at the trial court. The appellant shall also have the costs of this appeal.
Dated, signed and delivered at Kisumu this 23rd day of July, 2014.
H.K. CHEMITEI
JUDGE