[2023] KEHC 25338 (KLR)

CIC General Insurance Co Ltd v Mbilu (Civil Appeal 32 of 2022) [2023] KEHC 25338 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25338 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 32 of 2022

DKN Magare, J

November 7, 2023

Between

Cic General Insurance Co Ltd

Appellant

and

Omar Khamisi Mbilu

Respondent

Judgment

1. This is an appeal from the Ruling of the Honourable S D Sitati delivered on 19/3/2022 in Kilifi E044 of 2020. Omar Khamis v CIC General Insurance Co. Ltd.

2. The case will turn on the understanding of the burden and standard of proof. It has been my wish that litigants and their clients master the Evidence act. Even if not the whole of it, at least Section 107 - 112. They will reduce the number and scope of disputes.

3. I have several times stated that there nowhere in the Civil Procedure and the Evidence Act that the burden of proof did placed on the plaintiff. The burden of proof is placed on whosoever alleges. Section 107 to 109 of the Evidence Act states as doth:-“107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

4. Nowhere in the above Section of the word plaintiff used. therefore, each of the parties to a suit has a burden to whatever they allege.

5. As a fact, the burden can some time s reside is a party who has not alleged. This is the case relating to special knowledge. The special knowledge for criminal cases is governed under Section 111 of the Evidence Act, which states:“111. Burden on accused in certain cases(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence.(2)Nothing in this section shall—(a)prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; or(b)impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) of this section do not exist; or(c)affect the burden placed upon an accused person to prove a defence of intoxication or insanity.”

6. In the Civil Proceedings it is under Section 112 of the Evidence Act, which provides as doth: -“112. Proof of special knowledge in civil proceedings-In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

7. It is also important to have cognizance of Sections 46 and 47 of the Evidence which provides as doth: -“46. Inadmissible judgments, orders or decrees other than those mentioned in sections 43, 44 and 45 of this Act are inadmissible except where the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Act.

47. Proof that judgment was incompetent or obtained by fraud or collusion Any party to a suit or other proceeding may show that any judgment, order or decree which is admissible under the provisions of this Act and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion.”

8. The foregoing helps parties understand that court judgments, unless, set aside, or shown to have been obtained by collusion or fraud are not suggestions. No court can go round it unless evidence has been tendered to show that the judgment was procured by fraud or other material respects, which section 46 or 47 of the evidence Act applies.

9. Finally, on public documents, there is a presumption of legitimacy of public documents and public action, Omnia praesumuntur rite et solemniter esse acta. The Supreme Court in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment), paragraph 196 states as follows: -“We find merit in such a judicial approach, as is well exemplified in the several cases from Nigeria. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.”

10. In Civil matters the proof on a balance of probability. Meaning that once evidence is tendered tending to show a fact and there is no rival fact, then the court has no reason or reason d’etre to disbelieve such a fact. It is a solemn process of deciding on a balance of probabilities. I shudder to imagine and encompass, a scenario keeps asking the question, what if?. That makes the court to descend into the realm of conjecture, hyperbole and surmise.

11. The court is simply to be convinced. It should be membered that given that there no danger to life and liberty in civil cases, it is not that there is no doubt. There will be reasonable doubt. However, the Civil Standard does not go there. It is a balancing act between to possible scenarios.

12. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

13. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & another (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

14. The court keeps its doubts to itself and believes one or the other. It is therefore the duty of the parties not only to make the opponents case unbelievable but also make them believable our legal system is a story of the crocodile. If the crocodile comes and tells on that the whale is sick, you believe it. You will have doubt, as why one dint each the other, but keep it to yourselves, unless the whale tells us that it is not sick, you will find that it is sick. It is not enough to say that the crocodile ordinarily lies. There must believable evidence that it is lying this time.

15. The appellant filed a prolixious 9 paragraph memorandum of appeal lamenting the Ruling of the court. The Appellant should file concise Memorandum of Appeal. Under Order 42 Rule, 1 provides are doth: -“1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

16. The Court of Appeal had this to say in regard to rule 86 (which is pari materia with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v Firoz Hussein Tundal & 2 others [2013] eKLR) and Nasri Ibrahim v IEBC & 2 others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

17. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross v Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

18. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. The question this court will have to deal with is whether the magistrate’s erred in finding the Appellant vicariously liable for the accident herein.

Duty of the first Appellate court 19. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

20. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

21. In the case of Mbogo andanotherv Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

22. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another v Associated Motor Board Company and others [1968] EA 123, where the law looks in their usual gusto, held by as follows:-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

23. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

24. In the case of Peters v Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

25. In this matter, it was an application. the court had more latitude as it did not hear witnesses. the court herein also has latitude as it did almost in the same state as the court below except as regards exercise of discretion.

Pleadings 26. The Respondent filed suit on 24/10/2-0202 seeking a declaration that be defendant is statutory bound to settle the decretal sum awarded in PMCC 175 of 2017 Omar Mbilu v Stephen Ngala Ngonyo plus costs and interest. Among the documents they relied on was a statutory notice dated 27/4/2017 and it is received by the Appellant.

27. The defendant filed defence dated 10/12/2020. They state that the statutory notice was served over 14 days from filing of the claim and as such the court no jurisdiction. In a classic evasive defence the Defendants stated as doth in paragraph 4 as follows: -“The Defendant does not admit he content of paragraph 3 of the plaint and further does not admit that it insured motor vehicle registration No KCB 233M Subaru and/or entered into nay insurance contract and/or arrangement with the unnamed owners of the aforesaid motor vehicle pursuant to InsuranceMotor Vehicle (Third Party Risks) Act, Cap 405, as alleged in paragraph 3 of the plaint, or at all.”

28. Such defences were addressed in the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR, where the court of Appeal stated as doth: -“In the subsequent appeal to this court, it was held that a mere denial is not a sufficient defence in the type of action that had been brought against the defendant. In the judgment of this court delivered by Platt, JA as he then was, it is clearly stated as follows:“First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”Thus is Maguga General Stores this court authoritatively enunciated the principle in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence for the purposes of 06 r 13(1)(a). In 0 6 r 9, it is provided that every allegation made in a plaint which it is not intended to be admitted, shall not be specifically traversed in defence and a general denial shall not be a sufficient denial of them. The following comments on the corresponding English rule namely 0 18 r 13, which appear in the Supreme Court Practice 1993, vol. 1 Part 1 p.323 para 18/13/1, also clear supports and view that in a suit for a liquidated demand where the facts are clearly set out in the plaint as in the present appeal, a general denial is of no use and demonstrates not only a reprehensible lack of candidness in defence but also that the defence discloses no reasonable defence which can be the basis for an application to strike out the defence …”

29. They stated that they were not aware of the policy and the defendant was a stranger. They filed a list of witnesses without the witness statement. The Defendant was served with summons on 12/8/2021, and filed an appearance dated the same day.

30. They admitted to have been served with a Reply to Defence and hearing notice on 13/4/2021 out they did not attend court. They averred that they were served with a mention notice on 9/8/2021. They stated that they had a serious defence. They annexed to it an investigation report.

31. In the report the Driver is named as Ngonyo Stephen Ngala. None of the documents annexed had been filed by the time the hearing took place.

32. The Appellant filed a supplementary record of Appeal. In it indicates that the plaintiff’s counsels notified the court that the Defence was served. They did not have any documents but only lists. The court had given direction on 12/4/2021 for compliance with order 11. This notice was served. The Appellant complains that had pretrial been done they will have filed documents.

33. Order 7 Rule 5- provides as doth: -“5. Documents to accompany defence or counterclaimThe defence and counterclaim filed under rule 1 and 2 shall be accompanied by—a.an affidavit under Order 4 rule 1(2) where there is a counterclaim;b.a list of witnesses to be called at the trial;c.written statements signed by the witnesses except expert witnesses; andd.copies of documents to be relied on at the trial.Provided that statements under sub-rule (c) may with leave of the court be furnished at least fifteen days prior to the trial conference under Order 11

34. Parties are used to the old idea of filing defence and then waiting to delay the hearing with a request to comply which causes unnecessary delay in cases. Respondent was served and did not object. The application was allowed. The Defence was to be file documents. Mr. Oketo indicated that they have filed on application dated 30/8/2021. There appears to have been a ruling. The Application for stay pending appeal was filed. The application sought orders that the suit be struck out.

35. The Court found that the questions whether the owner of KCB 233 M Subaru Forester was determined in the primary suit. The issue raised by the plaintiff and countered by the defendant call for adduction of evidence and not at the interlocutory stage.

36. This is the matter that gave rise to this appeal.

Analysis 37. The Court made an error that has kept this matter in court this long. The matter had proceeded properly with service and it was awaiting judgment. By partly setting aside the proceedings, it opened windows for the Appellant to file a record number of applications.

38. The plaintiff has a judgment which has not been set aside. The appellants’ documents show that Stephen Ngala Ngonyo was the insured’s driver. If the Appellant wished to defend the primary suit defend at that point, it was up to them. The court below cannot set aside judgment already granted in 175 of 2017.

39. I will not comment on the quality of the evidence the appellant wished to produce in the lower court. So far, the suit in the court below prima facie show that it is based on sound evidence. Till the Appellant testifies and displays the evidence, there is nothing to strike out. The case in the court below is a sound case.

40. As a fact it is the applicant whose evidence is tenuous. Under Cap 405, a party who wishes that they should not be liable must take out a declaratory suit to that effect. The same must be filed before or within 3 months and filing of the primary suit. I am no privy to any such suit and declaration.

41. The application dated 30/8/2023 is based on rumours, surmises and hyperbole. It is bare and had absolutely no merit. It was a waste of judicial time and a bound frustrate the plaintiffs case.

42. The matter has dragged in courts for no good reason. If the defendant is not the insured and that is their defence, then the defendant should tender such evidence in court and that be weighted with other evidence and the law.

43. In the case of DT Dobie & Company Ltd v Muchina [1982] eKLR it was stated thus;“The Court ought to act very cautiously and carefully and consider all the facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the Court. At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way. As far as possible indeed, there should be no opinions expressed upon the Application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right.”

44. The upshot is that I find the Appeal totally unmerited and a waste of precious judicial time. It is anathema to good order and pleadings. I dismiss the same with costs of 95,000. In order to fast track the hearing on the primary suit, the matter shall be transmitted to the trial court to conclude cross examination of the Appellant and tendering evidence by defence.

45. The matter be concluded as soon as possible. Consequently, I lift the stay of proceedings that had been given in the court below.

46. As a parting shot I wish that parties can take their time and study the role of insured driver in insurance matters. In the case of Anyanzwa v Gasperis [1981] eKLR, the court of Appeal (Law, Miller & Potter JJA) stated as follows: -“I have reached this conclusion with regret, as it leaves the respondents without redress, a situation which would have been avoided had the driver’s personal representative been joined as a defendant and the driver’s negligence been established, in which case the insurance company would have had to satisfy the damages awarded, as the insured vehicle was at material time being driven by an authorized driver within the terms of the policy.As it is, no judgment has ever been obtained against the driver or his employers Hansmax. Had such a judgment been obtained, as it could and would have been had the driver’s personal representative been sued, the insurers would have been liable under the appellants’ policy, and I hope they will see fit to discharge their moral liability towards the respondents by making a reasonable exgratia payment to them.

47. The less I say, the better for the court hearing the case that is still alive in the court below. the appeal is accordingly dismissed with costs.

Determination 48. The upshot is that I make the following orders: -a.The Appeal herein lack merit and is accordingly dismissed with costs of 95,000/= to the respondent payable within 30 days from today and in any case before hearing in the court below.b.Failing to pay costs the order re –opening the case in the court below shall stand set aside and the court to proceed to deliver its judgment.c.In any case the file be transmitted to the trial court immediately for mention 24/11/2023 to fix a hearing date and confirm payment of cost in this matter. Notwithstanding (b) above in default execution to issue.d.This file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF NOVEMBER, 2023. KIZITO MAGAREJUDGEIn the presence of:No appearance for partiesCourt Assistant - Brian