[2023] KEHC 27197 (KLR)

Car & General (Trading) Limited v Divinah Kwamboka Abuga & Abuga Makori (Suing as the legal representatives of the Estate of Valerian Nyaboke Abuga - Deceased) & 3 others (Civil Appeal E003 of 2023) [2023] KEHC 27197 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27197 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E003 of 2023

WA Okwany, J

November 16, 2023

Between

Car & General (Trading) Limited

Appellant

and

Divinah Kwamboka Abuga & Abuga Makori (Suing as the Legal Representatives of the Estate of Valerian Nyaboke Abuga - Deceased)

1st Respondent

Bogonko Simon Moche T/A Boflos Investments

2nd Respondent

Lady Ken

3rd Respondent

Evans Masira Alunga

4th Respondent

(Being an appeal from the Judgment in the Chief Magistrate’s Court at Nyamira, Civil Suit No. E187 of 2021 by Hon. C. Waswa, Resident Magistrate delivered on 9th December 2022)

Judgment

Introduction 1. The Appellant herein, was a third party in the trial court where the 1st Respondent sued them for compensation under the Fatal Accidents Act and the Law Reform Act, arising out of a road traffic accident.

2. The 1st Respondent filed a Plaint dated 24th September 2021 and later filed an amended Plaint dated 16th June 2022. The facts of the case were that on 24th December 2019, the deceased Valerian Nyaboke Abuga was lawfully travelling as a pillion passenger on motorcycle registration No. KMDY 338U, U TVS STAR along the Nyamira-Miruka road, when at Corner ‘S’ area or thereabout, the 1st Defendant’s (2nd Respondent) driver negligently drove motor vehicle registration No. KCC 718W, Isuzu Tipper (lorry) along the said road and caused it to violently lose control and collide with the motorcycle, fatally injuring the deceased.

3. The 1st Respondents prayed for compensation as follows:-(a)Special Damages of Kshs. 189,850/=(b)General Damages(c)Costs of and incidental to this suit(d)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. Judgment was delivered before the Lower Court 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 – Kshs. 100,000/=(iii)Loss of Dependancy – Kshs. 1,200,000/=(iv)Special Damages – Kshs. 30,000/=Total – Kshs. 1,380,000/=

5. Being dissatisfied with the judgment of the trial court, the Appellant filed a Memorandum of Appeal dated 19th December 2022 raising 31 grounds which are summarized as follows: -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. It was the Appellant’s prayer that the appeal be allowed, that judgment of the trial court be set aside, that the suit be dismissed against the Appellant and costs in the appeal and trial court be awarded.

7. The Appeal was canvassed by written submissions.

Appellant’s submissions 8. Counsel submitted on behalf of the Appellants that the trial court erred in finding the Appellant 50% liable for the claim yet he had appreciated in his judgment that the Appellant was in the business of selling motorcycles and that the buyer of the said motorcyle one Lady Ken was already a party to the suit but had been struck out of the suit because the Plaintiff/1st Respondent could not trace and serve them and the rider due to lack of funds. The Appellant relied on Order 1 Rule 15 of the Civil Procedure Rules in explaining the legal principles governing the taking out of Third-Party proceedings. Counsel submitted that the Appellant denied liability for the fatal accident because the rider was not their employee and that they had no obligation to enjoin the purchaser of the suit motorcycle as a third party since the Plaintiffs had already exercised their rights under Order 1 Rule 15. Counsel cited the cases 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 arose by operation of the law and could only involve triable issues between the defendant and the third party, not the plaintiff and the defendant.

9. Counsel faulted the trial magistrate for finding the Appellants 50% liable without establishing a nexus between them and the rider of the motorcycle as explained in Nairobi HCCA No. 152 of 2023, Statpack Industries Ltd vs. James Mbithi and Securicor Kenya Limited vs. Kyumba Holdings Limited (2005) eKLR. That it was 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. On this, Counsel cited 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 depended on ownership not on delegation of tasks. Counsel further cited 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 which cases expounded on the doctrine of vicarious liability.

10. It was submitted that the evidence on Record was not considered by the trial court in finding liability on the Appellants despite the Appellant demonstrating that it had long sold the suit motorcycle. Counsel cited sections 107-109 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. Counsel urged the Court to award the Appellants costs in the Appeal and the trial court because they were wrongfully sued. Counsel relied on Judicial Hints on Civil Procedure 2nd Edn. at page 101 to this end.

The 1st Respondents’ Submissions 11. Counsel submitted that the 2nd Respondent in this case ought to have borne 100% liability and they conceded to the Appeal arguing that the trial court ought not to have apportioned liability at 50:50% between the 2nd Respondent and the Appellant/Third Party because the Appellant only dealt with the sale of motorcycles. On quantum, Counsel submitted that the award by the trial court was not excessive and ought to be upheld by this Court.

The 2nd Respondent’s Submissions 12. Counsel submitted on behalf of the 2nd Respondent that the Appellants failed to enjoin the party that had purchased the suit motorcycle, Lady Ken, as required under Order 1 Rule 15 of the Civil Procedure Rules. That there was a need to institute a second third party proceedings to properly determine the issue of liability between the parties which the Appellant failed to do to its detriment. Counsel cited the case of 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 in those cases 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.

The Duty of the Court 13. This being a first appellate court, I am duty-bound to analyze and re-evaluate the entire evidence on Record and arrive at my own independent findings. Indeed, this principle was aptly espoused 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.”

Issues for Determination 14. I have perused the entire record of appeal and considered the submissions of Counsel for the parties alongside the authorities cited. I note that this entire appeal relates to the issue of liability and particularly whether the Appellant as a third party could also take out third party proceedings in the trial court suit.

Analysis and Determination 15. The law on Third Party Proceedings is anchored on Order 1 Rule 15 of the Civil Procedure Rules as follows: -(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; or(b)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; or(c)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…..

16. Further, Order 1 Rule 22 of the Civil Procedure Rules, 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.

17. The above Rules posit that a defendant can take out third party proceedings in a claim where they have been sued but they feel that someone else was responsible for the claim and such proceedings must be heard and determined either at or after the trial. In essence, a court must give directions on the third party proceedings after the third party enters appearance. This was the position clearly established by Riaga Omolo J. (as he then was) in the case of Solomon Mwarimbo vs. Kenya Bus Services Ltd [1993] eKLR when discussing 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)

18. Applying the above to the instant matter, I have found no evidence from the trial proceedings that the Defendant filed a formal application for directions regarding the third party. There is also no evidence that the Court issued directions with respect to liability between the third party/Appellant and the 1st Defendant/2nd Respondent. In essence, there were no proceedings conducted or directions issued to determine the extent of liability by the Appellants in order to determine whether they were a proper third party.

19. It is my finding to this extent that there was already a legal and procedural error by the 2nd Respondents failure to move the trial court to issue directions and on the other hand, the trial court, by proceeding to determine the matter with the Appellant being improperly enjoined as a third party.

20. As to whether this was fatal to the trial in the lower court, I am guided by the Court of Appeal 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. Thus, having failed to take out directions and the trial court proceeding to determine the matter, the 2nd Respondents placed the Appellants in a precarious position requiring them to defend themselves in a suit where the question of liability between them (the Appellants) 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 could institute third party proceedings once they were enjoined in a suit. In determining this, I find guidance from the relevant section of the law being Order 1 Rule 15 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 Rules are perspicuous in this regard. It follows then that, the Appellant’s submissions that they were not obligated to enjoin the purchaser of the motorcycle, Lady Ken to the present suit were not only erroneous but worked perfectly to their detriment. It was incumbent on them, as a party likely to be adversely affected by to have instituted the said Third Party Proceedings and enjoin the rightful party which they felt was responsible to answer to the claims before the court.

24. The above notwithstanding, the next issue for my determination is whether the Appellants were liable on their part in the present suit. It is trite that he who alleges must prove. (See sections 107-109 of the Evidence Act).

25. From the inception of the Third Party Proceedings, it is clear that the 2nd Respondents herein alleged that they were not entirely responsible for the claim in question and that was why they enjoined the Appellants, albeit wrongfully as already determined, in the trial court suit. I have also considered the Appellant’s Statement of Defence dated 5th May 2022 and noted that they denied being liable for the fatal accident because they were neither the owners of the motorcycle which was involved in the accident nor was the motorcycle rider (third Defendant in the suit, Evans Masira Abuga) their agent or servant.

26. I have examined the documents on Record and noted 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. However, a rebuttable presumption exists with respect to the above legal provision in that, ownership of a vehicle from a search is considered to be prima facie evidence and may be rebutted by evidence. This was the holding of the Court of Appeal in Francis Nzioka Ngao vs. Silas Thiani Nkunga Civil Appeal No. 92 of 1998 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 Appellants’ case that they sold motorcycles and that on 12th November 2016, they sold a number of motorcycles to a business enterprise in Kisii town known as ‘Lady Ken’. They produced a copy of a paid-up Invoice Document No. DIST000012332 (‘D.Exh1’) dated 12th November 2016 and issued to the said enterprise. In his testimony, DW2 Joseph Mulwa Mwambi testified that they imported motorcyles and due to statutory regulations, they were required to register them in their name. It was his testimony that at the point of sale, they would normally initiate the ownership transfer process and it was up to the purchaser to accept and complete the transfer online.

30. From the above evidence, it is clear to this Court that the Appellants herein were in the business of selling motorcyles and that a purchase was made by Lady Ken on 12th November 2016. The accident in question occurred on 24th December 2019 at which point the Appellant had already sold off the motorcycle. There was therefore no way of the Appellants knowing to whom the motorcycle belonged and further, no connection was made by the 1st Defendants/2nd Respondents between the Appellants and the motorcycle rider, whether as an agent or a customer. The Appellant’s evidence that they had long sold the motorcycle in 2016 remained unchallenged even during cross-examination.

31. In the premise, it is my finding that there was no evidence linking the Appellant to the motorcycle herein as such, they could not in any way, directly or remotely be held liable for actions committed by another in the course of using the said motorcycle. I find no nexus between the Appellant and the motorcycle in question or its rider. Further, it is my finding that having failed to prove that the Appellants were equally liable for the accident in this case, 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 were equally liable for the accident was improper and unfounded by evidence. This Appeal has merit and is therefore allowed. I set aside the judgment of the trial court.

33. The Appellants are awarded costs of the Appeal. However, on the issue of costs in the trial court suit, I find that failure to exercise their right to enjoin the purchaser of the motorcycle was a demonstration of indolence on their part to protect their interests and as such, I see no need to interfere with the order of the trial court.

34. Orders accordingly.

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