[2017] KEHC 1335 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CIVIL APPEAL NO. 4”A” OF 2016

BRITISH AMERICAN INSURANCE COMPANY......APPELLANT

VERSUS

JOSEPH KASALE OLE NARIMO ………………RESPONDENT

JUDGEMENT

1. The appellant has appealed against the judgement and decree of the trial court which ordered the appellant to compensate the respondent for the loss of his motor vehicle.

2. Liability in favour of the respondent was based on the direct evidence of David Ngosila (PW 2). The evidence of PW 2 was that his father Joseph Kasale Ole Narimo (PW 1) instructed him to watch over the cleaning of the subject motor vehicle.He then entered the rear seat of the subject motor vehicle, which was being cleaned at Ntulele centre. After it was cleaned, 2 people approached him, took out a knife and dared him not to attempt to talk. They blindfolded him and tied both his legs and hands and was taken to a forest, where he was tied to a tree from where he was rescued by 2 maasais. The robbers took the motor vehicle. PW2 then got in touch with his father and told him about this robbery. While under cross-examination, he denied telling the investigators that someone came and asked him to take him somewhere. It is during that process of taking him somewhere that the robbers took the motor vehicle.

3. Furthermore, the evidence of the respondent was that he drove from his home and left the subject motor vehicle and left the at the car wash at Ntulele. He then went to sell sheep at Suswa. He then reported the robbery of his motor vehicle registration No. KBT 925H Toyota Probox, which had been stolen to Ntulele police station. It was his evidence that he had left the car keys with his son (PW 2).

4. The appellant has raised 9 grounds of appeal in his memorandum of appeal to this court. In grounds 1 and 2, the appellant has faulted the trial court both in law and fact in entering the judgement for the plaintiff (respondent), when the case had not been proved as required by law. He has also stated that there were inconsistencies in the testimony of PW 1 and PW2. He has further complained that the evidence of PW 1 and PW 2 was not corroborated. In this regard, I find that the evidence of PW 1 and PW 2 was cogent, consistent and credible. The evidence of PW 1 and PW 2 did not need corroboration in view of the fact that they were adult persons and not minors. I further find that they were not accomplices in the robbery that led to the loss of the subject motor vehicle. In the circumstances, I find that the judgement is based on the unrebutted evidence of PW 1 and PW 2. In the circumstances, I find that there is no merit in these grounds of appeal and I hereby dismiss them.

5. Furthermore, in grounds 3 and 4, the appellant has faulted the trial court for failing to consider the evidence of the defence witness who tendered the investigation report. In this regard, I find that the appellant tendered the report of the investigation which was put in evidence by Joseph Njooge Kuria (DW 1). His evidence was that he worked with Britam Insurance in the claims department. He testified that they refused to compensate the respondent for the loss because he had made misrepresentation of material facts. He testified from their investigation that at the time of the theft, David Ngosila (PW 2) was driving the subject motor vehicle. He further testified that PW 2 was not a licensed driver and that he did not have PSV. The report was put in evidence as defence exhibit 2 -1. Under cross-examination, he maintained that the vehicle was stolen when it was being driven by PW 2. Finally, he testified that the respondent had not fixed anti-theft devices on the subject motor vehicle. However, he testified that the non-fitting of the anti-theft devices alone could not prevent them from compensating the respondent. Instead, it would reduce and call for higher excess to be paid by the respondent. It was also his evidence that the contract of insurance commonly known as the insurance policy becomes invalid if its driven by an unlicensed person, in support of which they produced the insurance policy as defence exhibit 2.

6. It is clear from the judgement of the court that the defence evidence was considered and found to be contradictory. For instance, the evidence of DW1 was that David Ngosila was an unlicenced driver and was also not the respondent’s son. In the same report, the investigators acknowledged that David Ngosila was the respondent’s son. While giving evidence as PW2, it was not put to him that he was not a licenced driver. Furthermore, it was also not put to him that he was not the a son of the respondent. I find that the trial court considered the defence evidence and rightly rejected it. It found that on a balance of probabilities that the respondent had proved his case. In the circumstances, after reassessing the evidence, I find that the unrebutted evidence of PW 1 and PW 2 was credible and had proved their case on a balance of probabilities.

7. In grounds 5 and 6, the appellant has faulted the trial court for shifting the burden of proof to the respondents and for failing to take to account the submission of the appellant. In this regard, I find that the trial court considered the evidence and the submission of the parties and came to the conclusion that on the balance of probabilities that the respondent had proved his case against the appellant as required by law.

8. In ground 7, the appellant has faulted the trial court in failing to appreciate the essence of the principle of good faith and in doing so, failed to find that the respondent was in breach of that principle.In her judgement, the trial court found as a fact that there was no conclusive proof that the respondent misrepresented the facts. In view of that finding of fact which is supported by evidence I find that this ground of appeal is lacking in merit and is hereby dismissed.

9. In ground 8, the appellant has faulted the trial court the entering judgement in favour of the respondent in respect of prayer 1 of the plaint which was vague and ambiguous. I find that there was ample evidence and the pleadings were clear that the issue in contention was whether the respondent was to be compensated for the loss of the subject motor vehicle. In the circumstances, I find that the prayers sought were clear and unambiguous. I find no merit in this ground of appeal and is hereby dismissed.

10. In ground 9, the appellant has faulted the trial court for basing its decision on wrong principles. I have shown in the foregoing paragraphs that the judgement was based on the evidence that was tendered in court and on the principles of the applicable law. I therefore find no merit in this ground and is hereby dismissed.

11. This is a first appeal. As a first appeal court, I am required according to Peters v. Sunday Post Ltd (1958) EA 424, to reassess the evidence upon which judgement was entered for the respondent. I have done so and I find that the evidence upon which judgement the was based was cogent and credible.

12. In the light of the foregoing considerations, I hereby dismiss the appellant’s appeal with costs to the respondent.

Judgement delivered in open court this 20th day of November, 2017 in the presence of Mr. Kiptoo holding brief for Mr. Kagucia for appellant and Mr. Lempaa holdng brief for Mr. Onduso for the respondent.

J. M. Bwonwonga

Judge

20/11/2017