[2023] KEHC 25431 (KLR)

Car & General (Trading) Limited v Abuga & another (Suing as the Legal Representatives of the Estate of Sylvia Kemunto Abuga - Deceased) & 3 others (Civil Appeal E002 of 2023) [2023] KEHC 25431 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25431 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E002 of 2023

WA Okwany, J

November 16, 2023

Between

Car & General (Trading) Limited

Appellant

and

Divinah Kwamboka Abuga & Evans Abuga Makori (Suing as the Legal Representatives of the Estate of Sylvia Kemunto Abuga - Deceased)

1st Respondent

Bogonko Simon Moche t/a Boflos Investments

2nd Respondent

Lady Ken

3rd Respondent

Evans Masira Aunga

4th Respondent

(Being an appeal from the Judgment in the Chief Magistrate’s Court at Nyamira, Civil Suit No. E184 of 2021 by Hon. C. Waswa, Resident Magistrate delivered on 9th December 2022)

Judgment

Introduction 1. The Appellant herein, was the third party before the trial court where the 1st Respondent sued the 2nd, 3rd and 4th Respondent for compensation arising out of a road traffic accident. The 1st Respondent’s claim was brought under the Fatal Accidents Act and the Law Reform Act.

2. The 1st Respondent’s case was that on 24th December 2019, the deceased, one Sylvia Kemunto Abuga, was lawfully travelling as a pillion passenger on motorcycle Registration No. KMDY 338U along the Nyamira-Miruka road, when at Corner ‘S’ area or thereabout, the 1st Defendant’s driver (2nd Respondent) negligently drove motor vehicle registration No. KCC 718W, Isuzu Tipper (lorry) along the said road and caused it to lose control and violently collide with the motorcycle thereby injuring the deceased fatally.

3. The 1st Respondents sought compensation as follows: -a.Special Damages of Kshs. 189,850/=b.General Damagesc.Costs of and incidental to this suitd.Interests on (a), (b) and (c) above at court rates;e.Such other or further relief that this Honourable Court may deem just to grant.

4. The trial court heard the case and rendered judgment in favour of the 1st Respondent and against the Appellant and the 2nd Respondents (1st Defendant) as follows: -100% Liability against the 2nd Respondent and Appellant at 50% each.i.Pain and Suffering – Kshs. 50,000/=ii.Loss of Expectation of life – Kshs. 100,000/=iii.Loss of Dependancy – Kshs. 1,200,000/=iv.Special Damages – Kshs. 30,000/=Total – Kshs. 1,380,000/=

5. The Appellant herein was dissatisfied with the said judgment of the trial court. It filed the instant appeal and listed the following main grounds of appeal in the Memorandum of Appeal: -1. That the trial magistrate erred in finding that the Appellant/Third Party was liable for failing to take out third party proceedings against Lady Ken;2. That the trial magistrate erred in finding the Appellant liable for the said accident; and3. That the trial magistrate erred by not appreciating the evidence adduced when rendering the judgment.

6. The Appellant seeks orders to set aside the judgment of the trial court and for the dismissal of the suit against it with costs.

7. The Appeal was canvassed by written submissions. At the hearing of the appeal, parties agreed to consolidate this appeal with a related appeal being, Nyamira HCCA No. E007 of 2023. I however note that even though this appeal is related to HCCA No. E007 of 2023 in certain respects, it is more related to HCCA No. E003 of 2023 in all respects as they both raise the same issues. This means that the findings in this appeal will be adopted and apply to the related appeal being, HCCA No. E003 of 2023.

Appellant’s submissions 8. The Appellant faulted the trial court for finding that it was 50% liable for the claim despite having found that the Appellant was merely the seller of the subject motor cycle. The Appellant noted the trial court’s finding that the buyer of the subject motor cycle, one Lady Ken, was initially a party to the suit before it was struck out of the suit following the Plaintiff/1st Respondent’s claim that it was unable to trace them. The Appellant cited the provisions of Order 1 Rule 15 of the Civil Procedure Rules on the principles governing Third-Party proceedings.

9. It was submitted that liability for the accident could not be attributed to the Appellant because the rider was not its employee. It was the Appellant’s case that it was not under any obligation to enjoin the purchaser of the suit motorcycle to the suit as a third party since the Plaintiffs had already exercised their rights under Order 1 Rule 15. Reference was made to the case of ASC Metal Belgium vs. Blue Nile (East Africa) Limited & 2 Others (2018) eKLR, Kenya Commercial Bank vs. Suntra Investment Bank Ltd (2015) eKLR and Oceanfreight (EA) Ltd vs. Technomatic Ltd & Another (2010) eKLR where it was held that Third Party proceedings arise by operation of the law and can only involve triable issues between the defendant and the third party, not the plaintiff and the defendant.

10. The Appellant further faulted the trial court for finding that it was 50% liable for the accident when there was no nexus between it and the rider of the motorcycle. It cited the decisions Nairobi HCCA No. 152 of 2023, Statpack Industries Ltd vs. James Mbithi and Securicor Kenya Limited vs. Kyumba Holdings Limited (2005) eKLR wherein it was held that it is necessary for the 1st Respondent/Plaintiff to prove negligence against the Appellants by establishing an agency relationship with the rider or that the Appellants were vicariously liable. Reference was also made to the decisions in John Nderi Wamungi vs. Rubesh Okumu Otiagala & 2 Others Kisumu, CA. 24 of 2015; Kiema Mutuku vs. Kenya Cargo Hauling Services Ltd (1991) 2KAR 258 and HCM Anyanzwa & 2 Others vs. Lugi de Casper & Another (1981) KLR 10 where it was held that vicarious liability depends on ownership not on delegation of tasks. The cases of Morgan vs. Launchbury & Another (1972) 2 All ER, 606 which was quoted in the General Motor East Africa Ltd vs. Eunice Alila Ndeswa & Another (2015) eKLR were also cited on the doctrine of vicarious liability.

11. It was submitted that the trial court did not consider the evidence on record regarding the ownership of the motor cycle. The Appellant cited sections 107, 108 and109 of the Evidence Act and the case of Alice Wanjiru Ruhiu vs. Messiac Assembly of Yahweh (2021) eKLR where Ongudi J. relied on Halsbury’s Laws of England 4th Edn. Vo. 17 at paras 13-14 in explaining the legal burden of proof.

The 1st Respondents’ Submissions 12. The 1st Respondent conceded to the appeal and submitted that the 2nd Respondent should have been held 100% liable for the accident as the Appellant only dealt with the sale of motorcycles. On quantum, it was submitted that the award by the trial court was not excessive and ought to be upheld by this Court.

The 2nd Respondent’s Submissions 13. The 2nd Respondent argued that the Appellant should have enjoined the purchaser of the suit motorcycle to the suit as required under Order 1 Rule 15 of the Civil Procedure Rules. It was submitted that that the Appellant was required to institute a second Third Party proceedings to enable the court to properly determine the issue of liability between the parties. Reference was made to; James Gikonyo Mwangi vs. D M (Minor Suing through his Mother and next Friend, I M O) [2016] eKLR, Alex Njoroge & Another vs. Florence Nduku Mutua (2021) eKLR and Brian Muchiri Waihenya vs. Jubilee Hauliers Ltd & 2 Others (2017) eKLR where the learned judges held that defendants who failed to pursue third party proceedings were unjustified in shifting blame or responsibility to other parties which they claim also contributed to the negligence in question.

Analysis and Determination 14. The duty of the first appellate court is to re-analyze and re-evaluate the entire evidence presented before the trial court in order to arrive at its own independent findings while bearing in mind the fact that it neither heard nor saw the witnesses testify. This principle was aptly stated in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, thus: -“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

15. I have perused the record of appeal and considered the submissions of Counsel for the parties alongside the authorities that they cited. I note that the main issue for determination is whether the Appellant, as a third party, could also take out third party proceedings before the trial court.

16. Order 1 Rule 15 of the Civil Procedure Rules stipulates as follows on Third Party Proceedings: -(1)Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)—a.that he is entitled to contribution or indemnity; orb.that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; orc.that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.(2)A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons.(3)The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed within fourteen days of service, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith….

17. Order 1 Rule 22 of the Civil Procedure Rules, on the other hand, stipulates thus: -If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.

18. The above Rules posit that a defendant can take out third party proceedings in a claim where he has been sued but believes that someone else is responsible for the claim. Third party proceedings may be heard and determined either at or after the trial. This means that the court must give directions on the third party proceedings after the third party enters appearance. This is the position that was taken by Riaga Omolo J. (as he then was) in the case of Solomon Mwarimbo vs. Kenya Bus Services Ltd [1993] eKLR when he discussed the issue of directions in third party proceedings as follows: -“It appears to me that once a third party has entered an appearance and a defendant wishes to pursue the claim against the third party, then the burden shifts to such a defendant to apply to the Court, by way of a summons in chambers, to give directions and when giving such directions, the Court, if satisfied that there is a proper question to be tried as to the liability of the third party, order such question of liability to be tried at or after the trial of the suit. If there is no proper question to be tried regarding the liability of the third party to the defendant, then the Court is entitled to enter such judgment as it thinks proper against the third party. All these matters are to be determined at the stage where the Court is giving directions and directions can only be given on the application of the defendant.It is not to be forgotten that the purpose of a third-party notice is to avoid multiplicity of suits and at the hearing of the application for directions, the Court is entitled to determine whether the defendant’s claim against the third party should be heard at or after the trial of the plaintiff’s claim against the defendant. A defendant who fails to take out a summons for directions after a third party has appeared deprives the Court of its right to decide whether such defendant’s claim against the third party should be tried at the same time with, or after the trial of the plaintiff’s claim against the defendant. In my view, it is only at the stage of giving directions that the Court, if it thinks it is necessary, can order a third party to file a defence to the claim made in the third party notice.” (emphasis added)

19. Applying the principle advanced in the above-cited case to the instant appeal, I find that there is no evidence to show that the Defendant, before the trial court, sought any directions regarding the third party’s liability. There is therefore no evidence to show that the trial court issued directions with respect to liability between the third party/Appellant and the 1st Defendant/2nd Respondent. In essence, no proceedings were conducted to establish the extent of the Appellant’s liability so as to determine whether it was a proper third party. I therefore find that failure to take directions on third party proceedings resulted in a procedural error as the trial was conducted without first establishing the extent of the Appellant’s liability.

20. The Court of Appeal discussed the effect of procedural lapses in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 others [2013] eKLR where Kiage JA observed that: -“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness…”

21. It did not however escape the attention of this court that failure to take direction on third party proceedings placed the Appellant in a precarious position by requiring it to defend itself in a suit where the question of liability between it (the Appellant) as the Third Party and the 2nd Respondent was never considered or determined, both during and after the trial. It is this shortfall that has, in my view, led to the present Appeal.

22. I have consequently also considered the issue whether a third party can institute third party proceedings once he is enjoined in a suit. I find guidance in the provisions of Order 1 Rule 15 which stipulates as follows: -(4)Where a third party makes as against any person not already a party to the action such a claim as is mentioned in subrule (1), the provisions of this Order regulating the rights and procedure as between the defendant and the third party shall apply mutatis mutandis as between the third party and such person, and the court may give leave to such third party to issue a third party notice, and the preceding rules of this Order shall apply mutatis mutandis, and the expressions “third party notice” and “third party” shall respectively apply to and include every notice so issued and every person served with such notice.(5)Where a person served with a notice by a third party under subrule (4) makes such a claim as is mentioned in subrule (1) against another person not already a party to the action, such other person and any subsequent person made a party to the action shall comply mutatis mutandis with the provisions of this rule.

23. The Appellant’s case was that it was under no obligation to enjoin the purchaser of the motorcycle, Lady Ken, to the present. Having regard to the clear provisions of Order 1 Rule 15, I find that the Appellant’s argument is not only erroneous but also worked to their detriment as it was incumbent on them, as a party likely to be adversely affected by the court’s decision, to institute the said Third Party Proceedings and enjoin the party they felt was responsible to answer to the claims before the court.

24. My above finding notwithstanding, I am still minded to determine if the Appellants was liable in the present suit. It is trite that he who alleges must prove. (See sections 107-109 of the Evidence Act).

25. I note that from the inception of the Third Party Proceedings, the 2nd Respondents herein alleged that it was not solely responsible for the claim in question. This is the reason why the 2nd Respondent enjoined the Appellant to the suit. I have also considered the Appellant’s Statement of Defence dated 5th May 2022 and noted that it denied liability for the fatal accident on the basis that it did not own the motorcycle in question. The Appellant added that the motorcycle rider (third Defendant in the suit, Evans Masira Abuga) was neither its agent nor servant.

26. I have examined the documentary evidence tendered before the trial court and I note that a Certificate of Official Search in respect of the motorcycle in question marked ‘JKW1’ indicates that as at 18th March 2022, the motorcycle Registration No. KMDY 338U was officially registered under the name of Car & General (Trading) Limited, the Appellants herein.

27. Section 8 of the Traffic Act provides: -8. Owner of vehicleThe person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.

28. The above cited section shows that there is a rebuttable presumption of ownership of a vehicle where the search is considered as prima facie evidence that may be rebutted by other evidence. This is the position that was taken by the Court of Appeal in Francis Nzioka Ngao vs. Silas Thiani Nkunga Civil Appeal No. 92 of 1998 where it was held thus: -“In terms of section 8 of the Traffic Act, Cap. 403, Laws of Kenya, the registered owner of a motor vehicle is deemed to be its owner unless the contrary is proved on a balance of probabilities ..…Whether the property in a chattel being sold has or has not passed to the buyer is a question of fact to be determined on the facts of each individual case…A judge is perfectly entitled to draw an inference that by dint of section 9 of the Traffic Act, a purchaser of a motor vehicle is not supposed to use on the road for more than 14 days the said motor vehicle after the transfer unless he is registered as the owner thereof and therefore after the said period the original owner remained the registered owner…If a person is the registered owner of a motor vehicle and he transfers that ownership he must inform the Registrar of motor vehicles within seven days of the change of ownership in the prescribed form.”

29. It was the Appellant’s case that its business included the sale of motorcycles and that on 12th November 2016, it sold a number of motorcycles to a business enterprise in Kisii Town known as ‘Lady Ken’. The Appellant produced a copy of a paid-up Invoice Document No. DIST000012332 (‘DW1’) dated 12th November 2016 and issued to the said enterprise, Lady Ken. The Appellant’s witness (DW2), Mr. Joseph Mulwa Mwambi, testified that the Appellant imported motorcycles and that statutory regulations required them to register the motorcycles in their name. He added that at the point of sale, they would normally initiate the ownership transfer process after which it was up to the purchaser to accept and complete the transfer online.

30. From the evidence of DW2, it is clear that the Appellant herein was in the business of selling motorcycles and that it sold several motorcycles to Lady Ken on 12th November 2016. The accident in question occurred three years later, on 24th December 2019. I find that the Appellant could not have known the person who actually owned the motorcycle as at the time to the accident. I further find that Respondents did not establish a nexus was between the Appellant and the motorcycle rider, whether as an agent or a customer. The Appellant’s evidence that it sold the motorcycle in 2016 remained unchallenged even during cross-examination.

31. It is my finding that there was no evidence linking the Appellant to the motorcycle in question. This means that Appellant could not in any way, directly or remotely be held liable for actions committed by another person in the course of using the said motorcycle. I find that having failed to prove that the Appellant was liable for the accident, the 2nd Respondents were solely liable for the accident claim.

32. In the final analysis, I find that the trial court’s finding that the Appellants was 50% liable for the accident was not supported by any evidence. It is my finding that the Appeal has merit and I therefore allow it and set aside the judgment of the trial court.

33. The Appellant is awarded the costs of the Appeal. On the issue of costs before the trial court, I find that failure to enjoin the purchaser of the motorcycle to the suit shows that the Appellant was indolent in protecting its interests and as such, I will not interfere with the trial court’s orders on costs.

34. As I have already noted, elsewhere in this judgment, the issues raised in this appeal are exactly the same as the issues raised in HCCA No. E003 of 2023. I direct that a copy of this judgment be placed in the file in HCCA No. E007 of 2023 and be adopted as the judgment in the said file.

35. This matter is marked as concluded and/or closed.

36. Orders accordingly.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 16TH DAY OF NOVEMBER 2023. W. A. OKWANYJUDGE