[2023] KEHC 25086 (KLR)

Bolpak Trading Company Ltd v SMM alias SM alias MM (Minor suing through his father and next friend GMN) & another (Civil Appeal 086 of 2021) [2023] KEHC 25086 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25086 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 086 of 2021

TM Matheka, J

November 10, 2023

Between

Bolpak Trading Company Ltd

Appellant

and

SMM alias SM alias MM (Minor suing through his father and next friend GMN)

1st Respondent

Henry Maingi Muli

2nd Respondent

(Being an Appeal from the Judgment of Hon. J.N Mwaniki (SPM) in the Senior Principle Magistrate’s Court at Makueni, Civil Case No.86 of 2016, delivered on 15th September 2021)

Judgment

1. On 4th January 2016 Sebastian Mutinda Muli, a minor aged 17 years old at the time was walking with his friends along the Kaumoni Itangini Wote Road, when his cap was blown by a strong wind off his head. He went to pick it. That is when m/registration o. KCF 547D belonging to the 1st respondent and driven by the 2nd respondent hit him. He sustained injuries a closed fracture of the right tibia fibula distal 1/3.

2. His father the 1st respondent filed a suit in the subordinate Court. He accused the applicants of negligence in the manner in which the m/v was driven and for causing the accident, and injuries on his son. He sought judgment against the defendants for general damages for pain, suffering and loss of amenities, costs of the suit and interest.

3. The appellant and 2nd respondent filed separate statements of defence, denied each and every allegation of fact in the plaint and put the plaintiff to strict proof thereof. The appellant specifically averred that it had sold the motor vehicle to the 2nd respondent.

4. The record shows that the matter proceeded for hearing on the 18th May 2021. It appears that the matter proceeded ex parte after the trail court satisfied itself that the 2nd defendant was served since the 1st defendant’s counsel was present when the hearing date was taken.

5. An effort to re-open the case for the defendants was refused by the court vide its ruling dated 15th September 2021. On 10th November 2021 the court delivered its judgment finding in favour of the plaintiff, liability at 100% against the defendants and General Damages of Ksh 600,000 plus costs and interest.

6. Aggrieved by the decision, the appellant filed this appeal on the following grounds:a.The learned magistrate erred in law and fact by condemning the appellant to pay general damages to the 1st respondent of Kshs 600,000/= plus costs and interest. It is trite law that a defendant should be afforded a fair and a fine day hearing of its defence case on merit hence this honorable court should in the interest of justice set aside the final judgment against the appellant who was the 1st defendant and the suit be retried and heard before another magistrate.b.The learned magistrate erred in law and fact by denying the applicant a fair hearing of its defence arising from a mistake, error or omission of the appellant’s advocates who could not travel on 18/05/2021 on face of the covid-19 restrictions which were in force until 31/05/2021. c.The learned magistrate erred in law and fact by failing to find that the appellant’s advocates on record are situated within the 5 counties, to wit, Nairobi, Machakos, Kajiado, Nakuru and Kiambu whose movement into and out were restricted by the presidential Covid-19 rules/ directives of 26/03/2021 to 31/05/2021. Hence the counsel could not travel on 18/05/2021 to Makueni County for the physical hearing which was understandable and reasonable explanation in view of the Covid-19 restrictions and personal health safety of the appellant advocates aged over 58 years.d.The learned magistrate erred in law and fact by failing to find that the appellant’s advocate relied on the acting chief Justice, Lady Justice Philomena Mwilu’s circular issued around 27/03/2021 which suspended all physical hearings until further notice which had not been lifted as on 18/05/2021. The hearing had been fixed earlier in court on 24/03/2021 before the acting Chief Justice’s practice directions which had stopped all physical hearings.e.The learned magistrate erred in law and fact by failing to find that the appellant’s counsel was therefore not aware there would be any physical hearing on 18/05/2021 as the court also did not have a virtual link for conducting its hearings like the other court stations.f.The learned magistrate erred in law and fact by failing to find that the appellant has a strong and triable defence on record filed on 06/02/2019 which raises triable issues as it was only an importer/seller and financier of the motor vehicle Reg. No. KCF 547D which it sold to the 2nd defendant vide a sale agreement executed on 21/10/2015 long before the alleged accident date on 04/01/2016 hence it was not in actual control of the accident motor vehicle and the driver was not its servant or employee whatsoever.

7. Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions.

The Appellant’s Submissions 8. Relying on Article 50 of the Constitution, the appellant submits that its right to a fair hearing was disregarded by the subordinate court when it allowed the suit to proceed ex parte. That due to the Covid-19 restrictions, the appellant’s absence was understandable and reasonable. The appellant submits that this court has discretion to interfere with the trial court’s finding as its evidence was not considered. That it sought to rely on evidence showing that it had parted with the motor vehicle 2 months before the accident occurred. It has relied inter alia on Nrb H.C Civil Appeal No. 372 of 2018; Bolpak Trading Co. Ltd –vs-Charles Njoroge Munga & Anor where the court held that;“It is long settled that a copy of records is only prima facie evidence of ownership. The appellant successfully rebutted the 1st Respondent’s evidence of ownership via a copy of records and discharged its evidential burden by proving that as of the date of occurrence of the accident, it had sold the motor vehicle KAY 518R to one Hulda W. Mwesela…….applying the above precedents to the evidence presented before the lower court, the inescapable conclusion is that as of 28th November 2015 when the alleged accident occurred, the appellant had no legal, beneficial or equitable interest in the motor vehicle KAY 518R and further, that paragraph 6 of the sale agreement immunized the appellant from any liability arising from the said motor vehicle after the sale..”

9. The appellant submits that the sale agreement was executed on 21st October 2015 and delivered on the same day. That consequently, it parted with the actual possession and physical control of the accident motor vehicle upon delivery to the buyer. It contends that the onus was on the buyer to transfer the motor vehicle to its name.

10. The appellant submits that it could not have legally transferred the motor vehicle to the 2nd Respondent/buyer as at the accident date as the motor vehicle was bought on hire purchase and the buyer had not repaid the full purchase price.

11. Further, it submits that the 2nd Respondent was not its employee, servant or driver hence the issue of vicarious liability does not arise and it was therefore erroneous for the trial magistrate to hold as much.

Respondent’s Submissions 12. The respondent has identified the following as the issues for determination;a.Whether the learned magistrate erred in awarding Kshs 600,000/= as general damages to the 1st Respondent.b.Whether the trial magistrate accorded the appellant an opportunity to be heard.c.Whether the orders are warranted in light of the prejudice to be occasioned to the 1st Respondent considering the interests of justice on the whole.

13. On whether the learned magistrate erred in awarding Kshs 600,000/= as general damages to the 1st Respondent the respondent has relied on Butt –vs- Khan (1981) KLR 356 and Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini –vs- A.M Lubia & Olive Lubia (1982-88) 1KAR 727 for the submission that; general damages cannot be disturbed unless the award is inordinately high /low resulting in an erroneous estimate or where the court proceeded on a wrong principle, misapprehended the evidence, took into account an irrelevant factor or left out relevant factors.

14. He submits that the grounds upon which the appeal is based are unrelated to the principles under which an award of damages may be disturbed.

15. 14. On issue whether the trial magistrate accorded the appellant an opportunity to be heard he submits that the appellant was given a reasonable opportunity to be heard as the hearing date had been fixed by consent. That the matter had been previously adjourned severally at the instance of appellant’s advocate and had also been given a last adjournment. He contends that the right to a fair hearing cannot be used to hold a court hostage or protract a matter any further.

16. With regard to the averment that the appellant’s advocate could not travel due to Covid-19 restrictions, the respondent submits that advocates were cleared as essential service providers on 07th April 2021 hence exempted from movement restriction as ordered by the High Court at Nairobi vide Petition No. E110 of 2021.

17. Further, he submits that the appellant’s advocate was at liberty to contact the court and request that the matter be heard via virtual platforms. He contends that the appellant’s application to set aside the ex-parte proceedings was declined by the trial court as it was of the opinion that the appellant’s counsel was out to delay the course of justice. He relies on Tana Teachers’ Cooperative and Credit Society Ltd –vs- Andriano Muchiri [2018] eKLR where the court stated;“A party cannot egregiously fail or refuse to comply with directions of the court claiming that the said directions were salutary and not accompanied by any sanctions and hope to seek refuge in the overriding principle. That, in our view amounts to gross abuse of the court process. There must be an end to litigation and it behoves this court to tell the appellant that its journey ends at this point.”

18. He submits that the appellant lodged an appeal (Makueni HCCA No. 67 of 2021) against the trial court’s ruling delivered on 15th September 2022 and the grounds therein are similar to the ones herein. He contends that this is a duplication of proceedings aimed at causing delay, denying justice to the 1st Respondent and wasting this court’s time.

19. On whether the orders are warranted in light of the prejudice to be occasioned to the 1st Respondent considering the interests of justice on the whole he submits that this matter started in 2016 and the trial court was accommodating and gracious to all parties with a view of ensuring a fair hearing. He contends that the appellant’s ostensible cavalier attitude is inexcusable and has now been delicately guised as mistake, error or omission of the appellant’s advocate.

Analysis and Determination 20. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.

21. Having considered the grounds of appeal, the rival submissions and entire record, it is my considered view that the following issues arise for determination;a.Whether the appellant’s right to a fair trial was infringed.b.Whether the appeal has merit.

Whether the appellant’s right to a fair trial was infringed. 22. On the day the matter proceeded ex parte, the record shows that the date between the appellant and 1st respondent had been taken by consent. The record also shows that the appellant applied to have the ex-parte proceedings set aside but the trial court rejected the application. The appellant appealed against the ruling to this court, vide Makueni HCCA No. 67 of 2021, and I have confirmed that the same was withdrawn on 21st November 2022. Consequently, the issue was not determined on merit hence the court can still consider it at this stage.

23. It is indeed true that the hearing proceeded at a time when the government had issued travel restrictions but as correctly submitted by the respondent, Advocates had no travel restrictions as they were in the category of essential service providers. The appellant’s counsel assumed that the matter would not proceed and did not bother to get someone to hold his brief as he had done previously. He did not even make a prior enquiry from court as to whether the matter would proceed. By all means, that was an abdication of responsibility by counsel and the failure to participate in the proceedings was self-inflicted.

Whether the appeal has merit. 24. The appellant’s position is that no liability should be attached to it because it had sold the motor vehicle to the 2nd respondent at the time of the accident. There is no dispute that an accident involving the motor vehicle and the minor respondent occurred on the material day along the Machakos-Wote road.

25. The 1st respondent produced a copy of records showing that the registered owner of the motor vehicle as at 23rd March 2016 was Bolpak Trading Company Ltd .On the other hand, the appellant’s list of documents contained a sale agreement dated 21st October 2015 between it and the 2nd respondent. Clauses 3 and 7 are relevant and they provide as follows;“3. The buyer has confirmed by signing this agreement that he/she has taken possession of the aforesaid motor vehicle in a proper condition.7. Should the motor vehicle be involved in an accident or stolen, burned etc., it shall be the sole responsibility of the buyer, notwithstanding the fact that the motor vehicle has not been formally transferred into the buyer’s name.”

26. The appellant was sued as the registered owner of the m/v registration no. KCF 547D, and the 2nd defendant as the beneficial owner. In the plaint the 1st respondent states:“On or about the 4th January 2016…the 2nd defendant by himself, his authorized driver agent and or servant so negligently carelessly and recklessly drove, controlled and or managed m/v registration no. KCF 547D that he caused the same to lose control, veer off the road, hit and knocked down the plaintiff from behind”.

27. The plaint continues to lay out the particulars of negligence on the part of the “2nd defendant, his authorized driver servant and /or agent” and that the “2nd defendant is vicariously liable for the acts of negligence of his authorized driver agent or driver (sic)”

28. It is clearly evident from these averments that the appellant was sued merely as the registered owner of the motor vehicle. There is nowhere in the plaint that the plaintiff/1st respondent is attributing any lability on the part of the appellant vicarious or otherwise. It is all about the 2nd defendant and his servant, gent or driver, nothing is laid on the appellant. It appears to me that the plaintiff was aware of the situation hence the deliberate omission on his part to allocate any liability on the part of the appellant.

29. In any event there was on record the documents filed by the appellant to demonstrate that the m/vehicle had been sold to a third party who wools be solely responsible for the m/vehicle. This is bolstered by the fact that even the police abstract indicates that the m/vehicle was insured in the name of the 2nd defendant in the suit in the subordinate court. This carried together with the sale agreement exhibited by the appellant are a clear factual demonstration of the pronouncements made in the authorities cited by the appellant to the effect that a certificate of registration is not the only proof of ownership of a motor vehicle. See Palace Investment Limited v Geoffrey Kariuki Mwenda [2015] eKLR, cited in Bolpak Trading Co Ltd v Charles Njoroge, Nancy Ayemba Ngaira v Abdi Ali [201] eKLR.

30. The pleadings in the subordinate court indicate that the plaintiff was aware of the fact that the appellant was merely the registered owner of the m/v as per the copy of records but was not and could not be held responsible for the accident as the actual owner of the m/v was the 2nd defendant. I am of the view that had the learned trial magistrate taken this fact into consideration he would have given the opportunity to the appellant to adduce its evidence and to be cross examined on the same by the plaintiff’s counsel otherwise there would be an unjust outcome. Courts exist not only to ensure the rule of law but also to ensure just outcomes in disputes. It is my considered view that the failure by counsel to appear in court as and when required could have been punished by way of costs, and he be given the chance to present his clients case.

31. It appears to me that the sale agreement and the police abstract presented a strong and triable defence on the part of the appellant.

32. It is on this ground alone that I would allow the appeal.

33. However, considering that counsel for the appellant had failed to show up in court on the hearing date for reasons that were refused by the subordinate court, and which reasons I find untenable, there will be double costs to pay.a.The appeal is allowedb.The judgment of the subordinate court dated 15th November 2018 be and is hereby set aside.c.The appellant to pay thrown away costs of Ksh 50,000 plus interest from 18th May 2021 to the 1st respondent within 30 days hereof in default execution to issue.

34. The matter be mentioned before the Chief Magistrate within seven days hereof to be assigned for hearing and determination on priority taking into consideration the age of the case.

35. Orders Accordingly

DATED SIGNED AND DELIVERED THIS 10TH OF NOVEMBER 2023. .............................MUMBUA T MATHEKAJUDGECA MwiwaAppellant’s AdvocatesGitau J.H Mwara Co. Advocates – No appearancegmwara64@gmail.com1stRespondent’s AdvocatesAnne M Kiusya & Advocates – No appearanceannekiusya@yahoo.comJudgment HCCA E086 of 2021 Page 4 of 4