[2024] KEHC 3668 (KLR)

Car & General (Trading) Limited v Muriitthi & Muriithi (Suing as the Administrators of the Late Estate of Monica Wangechi Muriithi - Deceased) & another (Civil Appeal 71 of 2021) [2024] KEHC 3668 (KLR) (Civ) (12 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3668 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 71 of 2021

JN Njagi, J

April 12, 2024

Between

Car & General (Trading) Limited

Appellant

and

Marion Wairimu Muriitthi & Virginia Wacheke Muriithi (Suing as the Administrators of the Late Estate of Monica Wangechi Muriithi - Deceased)

1st Respondent

Peter Njeru

2nd Respondent

(Being an appeal from the judgment and decree of Hon. G. Mmasi (Mrs), SPM, in Milimani CMCC No.4655 of 2018 delivered on 10/2/2018)

Judgment

1. The 1st Respondents herein brought suit against the Appellant and the 2nd Respondent as administrators of the estate of the deceased herein after the deceased was fatally knocked down by a motor cycle that was at time of the accident being ridden by the 2nd respondent and was at the time registered in the name of the appellant. The Appellant in their defence contended that they are motor cycle dealers. That though the motor cycle was registered in their name they had prior to the accident sold it to one Hon. Timothy Wetangula, Member of Parliament. The 1st respondents blamed the 2nd respondent for carelessly riding the motor cycle as a result of which he was involved in an accident thereby causing the death of the deceased who was his pillion passenger. The trial court held the appellant vicariously liable for the death of the deceased. The court awarded damages to the 1st respondents jointly and severally against the appellant and the 2nd respondent. The appellant was aggrieved by the judgment and lodged the instant appeal.

2. The appeal raised 26 grounds that can be summarized as follows;a.That the learned trial magistrate erred in law and in fact in making a finding on liability against the appellant without any evidence proving vicarious liability against it;b.That the learned trial magistrate erred in law and in fact in finding that the appellant was the owner of motorcycle registration No KMDM 028L despite evidence to the contrary.c.That the learned trial magistrate erred in law and in fact in making a finding on liability against the appellant despite there being no evidence or nexus to prove that there was an agent, servant or any employment relationship existing between the appellant and the 22nd respondent herein at the time of the alleged accident;d.That the learned trial magistrate erred in law and in fact by entering judgment against the appellant which sum is astronomically high and will cause the appellant tremendous financial loss and may lead to the appellant shutting down its business to the detriment of other employees.

3. The respondents relied on the copy of the police abstract that showed that the motor cycle was registered in the name of the respondent.

4. The appellant called one witness in the case, DW1, who testified that he was an employee of the appellant. That the appellant is in the business of selling motor cycles. That on the 26/1/2015, the company sold 20 motor cycles to Hon. Timothy Wetangula , among which is the motor cycle that is the subject of this case. He produced a cash sale receipt for the sale. He could however not produce a bank slip to confirm deposit of the money nor could he produce a sale agreement to show that the motor cycle was sold to the said person. It was further evidence of the witness that the motor cycle was even at that time still registered in the name of the company. He said that the 2nd respondent was not their employee.

5. The appeal was disposed of by way of written submissions.

Appellant’s submissions 6. The appellant submitted that the only reason the respondent instituted suit against the appellant is due to the fact that it was the registered owner of the motor cycle as per search records of National Transport and Safety Authority. However, that the appellant adduced sufficient evidence to show that it was in the business of selling motor cycles and that it had sold the subject motor cycle to Hon. Timothy Wetangula prior to the accident.

7. The appellant submitted that the trial court failed to appreciate and consider the evidence presented with regard to the sale of the said motorcycle to Hon. Timothy Wetangula. Counsel submitted that the appellant was only a paper owner of the suit property and should not be held liable for the accident on that basis. Reliance was placed on section 8 of the Traffic Act Cap 403 Laws of Kenya and the authority in Gichira Peter v Lucy Wambura Ngaku & another [2021] eKLR, Muhambi Koja v Said Mbwana Abdi [2015] eKLR, Albson Motors Ltd v Tabitha Syombua Mutua & another [2019] eKLR and Anthony Kuria Wangari v Guardian Bank Kenya Ltd [2021] eKLR to buttress this position.

8. On the issue of proof of ownership of the motorcycle, it was submitted that a paid-up tax invoice had been adduced as evidence of sale which took place on 26/1/2015.

9. It was argued that that parties are bound by their own pleadings as was held in Raila Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR to establish that the 1st respondent pleaded that the 2nd respondent was the rider and did not plead the position of the appellant over the said motor cycle.

10. On the issue of liability, it was submitted that there was no evidence of any agency, servant or employment relationship existing between the appellant and the 2nd respondent. Therefore, that the trial court misdirected itself in finding the appellant 100% jointly and severally liable for the accident despite there being no evidence that the 2nd respondent was an employee of the appellant. Further that the 1st respondents stated that the 2nd respondent was the owner of the motor cycle which shifted liability from the appellant to the 2nd respondent. Neither was there any evidence adduced that the appellant derived any benefit from the use of the motor cycle or enjoyed any form of control over it. The appellant in this respect relied on the case of Securicor Kenya LTD v Kyumba Holdings Ltd [2005] eKLR where it was held that:In the case before us, it was proved that at the time of the accident the appellant was no longer the owner of KWJ 816. It had sold it to G.M. Thangwa to whom possession had been transferred. It appears that Mr. Karume had not been put into possession of it by the appellant. Moreover, KWJ 816 was not being driven by appellant’s driver or its employee on an occasion in which the appellant had any interest, matatu business not being its concern. There was no relationship whatsoever between the appellant and the 2nd defendant. Indeed, there was no agency relationship. It is difficult therefore to see how the trial Judge could import into the case the doctrine of vicarious liability. It was simply not applicable.Moreover, if, which we do not consider to be the position, the appellant was still the owner by way of the logbook being in its name, such ownership was not sufficient to create vicarious liability for the negligence of everyone who happened to drive it.

11. On whether the appellant was vicariously liable, the appellant cited the case of John Nderia Wamugi v Rubesh Okumu Otiagala & 2 others CA Kisumu 24 of 2015 where the court held that:“Vicarious liability is not pegged on legal ownership but on employer/employee or agent/principal relationship with particular emphasis on who employed and controlled the tortfeasor.”

12. The appellant argued that the suit was statutorily barred and in breach of Section 29(4) of the Limitations of Actions Act cap 22 laws of Kenya having been filed on 16/5/2018 whereas the deceased had passed away on 2/7/2015.

13. The appellant submitted that the 1st respondent had not proved its case to the required standard. They urged the court to allow the appeal with costs.

1st Respondent`s Submission. 14. The 1st respondent submitted that there was no dispute that;a.The deceased was involved in a road traffic accident where she was riding as a pillion passenger on Motorcycle Registration No KDMD 028L;b.The deceased sustained fatal injuries as a result of the accident;c.At the time of the accident the Motorcycle Registration No KDMD 028L was registered in the name of the appellant;d.At the time of hearing of the suit in the lower court the said motorcycle was still in the name of the appellant;e.That no third-party notice or proceedings were taken out against Timothy Wetangula;f.It is not disputed that the accident occurred as a result of the 2nd defendant’s negligence;g.It is not disputed that the deceased estate suffered loss and damage.

15. It was submitted that although the appellant had indicated that the motorcycle belonged to Hon. Timothy Wetangula, the mode of disposal had not been disclosed in the defence. That no sale agreement nor transfer forms were produced to prove the sale. It was submitted that the invoice such as the one produced by the appellant is not conclusive proof of sale of the motor cycle in the absence of payment receipt, sale agreement and transfer as there is no payment receipt, sale agreement and transfer.

16. It was submitted that the evidence before the court at the time of the accident was not controverted.

17. The 1st respondent asked the court to take cognizance of Order 1 rule 15 of the Civil Procedure Rules 2020 which provides for institution of third-party proceedings. It was submitted that no third-party proceedings were taken against Hon. Wetangula.

18. It was submitted that the evidence produced by the police abstract and the NTSA records outweighed the evidence in the appellant’s invoice. The 1st respondent submitted that a mere denial without rebutting evidence cannot hold and the trial court did not overlook the appellant’s evidence.

19. On the issue of liability, the 1st respondent submitted that the burden of proof was on a balance of probabilities as was held in William Kabogo Gitau v George Thuo & 2 others [2010] eKLR. It was submitted that the appellant acknowledges owning the motorcycle but alleges that at the time of the accident it was not the owner. The burden to prove that it was not the owner therefore shifted to the appellant which burden it failed to establish.

20. The 1st respondent placed reliance in the case of Rentco East Africa Ltd v Dominic Mutua Ngozi [2021] eKLR where the court cited the case of Kansa v Solanki [1969] EA 318 where it was held as follows on vicarious liability;“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (See Bernard v Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.”

21. The 1st respondent urged the court to find that the appellant was vicariously liable.

22. On the issue of limitation of time, the 1st respondent submitted the cause of action arose on 2/7/2015 and the suit was filed on 16/5/2018 which was well within the 3 years limitation.

Analysis and determination 23. It is the duty of this court, as the first appellate court, to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing its own conclusions from that analysis and bearing in mind that the court did not have an opportunity to hear the witnesses first hand - see the Court of Appeal case of Gitobu Imanyara & 2othersv Attorney General [2016] eKLR.

24. I have considered the pleadings, the record of the trial court and the submissions filed by the respective advocates for the parties. The issues for determination are on liability and whether the claim was time barred when it was instituted in court.

Liability 25. It was the case for the Appellant that it had sold the motor vehicle to Hon. Timothy Wetangula as at the time of the accident. The appellant faulted the trial magistrate for relying only on the NTSA record that indicated that the motor cycle was registered in the name of the Appellant and ignored their evidence of having sold the motor vehicle to Hon. Wetangula.

26. In holding the Appellant liable for the accident, the learned magistrate stated that the Appellant did not produce any sale agreement to prove that he had sold the motor cycle to Hon, Wetangula. That they did not produce a credible register to show that the 2nd Respondent was not their employee.

27. It is trite law that the registration of a person in a vehicle`s log book is not conclusive evidence that the person so registered is the owner of the vehicle. In the case of Nancy Ayemba Ngaira v Abdi Ali, Civil Appeal No 1607 of 2000 (2010) eKLR, Justice Ojwang (as he then was) identified various categories of ownership, to wit, actual ownership, beneficial ownership and possessory ownership.

28. It was the evidence of Marion Wairimu Muriithi, PW1 that she was the mother to the deceased. She stated in cross-examination that the subject motor vehicle belonged to the 2nd respondent (Peter Njeru). That he was using it as a boda boda taxi and she had seen him take the deceased home on the motor bike on several occasion. It was her further evidence that Njeru and other boda boda riders had been given the motor cycles by Mr. Wanyonyi, Member of Parliament. This evidence corroborates the evidence of the Appellant that they had sold the motor cycle to Mr. Timothy Wanyonyi (Wetangula). The court takes judicial notice that the said person is the Member of Parliament for Westlands Constituency in Nairobi, who appears to have given the motor cycle to the 2nd Respondent to operate as a boda boda taxi. The evidence of Marion that the 2nd Respondent was given the motor cycle by the said MP to operate it as a boda boda taxi discounted the association of the appellant as the owner of the motor cycle though it was still registered under its name. The trial court failed to consider the evidence of Marion in the context that she said that the motor cycle was given to the 2nd Appellant by Hon. Wetangula to operate it as a taxi. There was no evidence that the appellant was in any way connected with the 2nd Respondent. There was no evidence that he was an employee for the appellant. There was no reason to hold the appellant vicariously liable for the accident when the Respondent did not adduce any evidence that the 2nd Respondent was an employee for the appellant.

29. In my view the learned magistrate erred in holding the appellant liable for the accident when there was no sufficient evidence that he was the owner of the motor cycle. Mere registration did not prove that he was the owner in view of the fact that it was in the hands of the 2nd Respondent whom Marion pointed out as the beneficial owner through the courtesy of a Member of Parliament. The entry of judgment against the Appellant is for dismissal.

Whether statute barred 30. It is trite that a suit that is filed out of the statutory period would in essence oust the jurisdiction of the court in determining that dispute. Furthermore, jurisdiction is everything, without which a court of law downs its tools -see Owners of Motor Vessel Lilian S’ v Caltex Oil (K) Ltd [1989] KLR.

31. Under section 4(2) of Limitation of Actions Act, an action founded on tort shall not be brought after the expiration of three years from the date in which the cause of action occurred. Time begins to run when the cause of action accrues. The real contention as seen from the pleadings and submissions by parties lies in ascertaining when the cause of action began to accrue in the present instance.

32. From my perusal of the plaint, I have noted that the deceased died on 2nd July 2015 and the plaint was filed on 16th May/2018 which was well within the period of three years. However, Section 27, 28 and 29 of the Limitation of Actions Act provide that where the injured person dies, an action must be brought within twelve months from the date when the person died. Where such suit is not brought within the stated limitation period, then the plaintiff is given an opportunity, either before or after filing of suit, to seek leave by filing an application to extend time within which the suit should have been filed. In Philemona Mutheu Nzyoka (Suing as the Legal Representative of the Estate of the late TKM) v Transpares Kenya Limited (2016) eKLR, the court held that a suit not filed within twelve months of the death of the deceased is a nullity.

33. Section 4 (2) of the Limitation of Actions Act as read with Section 29 of the same Act renders the present suit a nullity ab initio.

Quantum 34. I am obligated to assess the amount of damages I would have awarded the estate of the deceased had the appeal failed. The deceased died at the age of 31. She was working as a waiter. The trial court adopted earnings of Kshs 500/- per day totaling to Kshs 15,000/-per month and a multiplier of 20 years. The award was as follows:Pain and suffering Kshs 10,000/-Loss of expectation of life Kshs 100,000/-Loss of dependency-15,000 x 20 x 12 x 2/3 Kshs 2,400,000/-Special damages Kshs 1,275/-Total Kshs 2,511,275/-I find the award to be reasonable and I would have confirmed the award had the appeal been unsuccessful.

35. In view of the foregoing, it is my finding that the 1st respondent had, in the first place, not proved liability against appellant and secondly, that the suit was filed outside the limitation period and was thus a nullity ab initial. The upshot is that the appeal herein is upheld. In the premises, the judgment of the lower court against the appellant is set aside and the 1st respondents` suit against the appellant is dismissed with costs to the appellant.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 12TH DAY OF APRIL 2024. .......................J. N. NJAGIJUDGEIn the presence of:Ms Muthee holding brief for Mr. Kabiru for AppellantMs Matunda for 1st RespondentCourt Assistant -30 days R/A.