[2022] KEHC 1973 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 84 OF 2020

DAVID MWANGI KAMUNYU.............................. APPELLANT

-VERSUS-

RACHAEL NJAMBI RUGURU......................... RESPONDENT

(Being an appeal against the Judgment Chief Magistrate’s Court at Kiambu(Hon. G. Omodho, S.R.M.)

delivered on 20th December, 2019 in Kiambu CMCC No. 273 of 2017)

JUDGMENT

1. The respondent, RACHAEL NJAMBI RUGURU filed a case before the Kiambu Chief Magistrate’s Court where she sought an award of general and special damages which resulted when she was injured following an accident between motor cycle registration number KMCV 812B and motor vehicle KCC 267L. The respondent was a pillion passenger on the motorcycle. The appellant, DAVID MUNGAI KAMUYU was the driver of the motor vehicle. The respondent, in her case before Kiambu Chief Magistrate’s Court alleged the appellant negligently drove his motor vehicle and thereby caused it to collide with the motor cycle where the respondent was a passenger. The appellant by his defence denied the allegations of negligence and pleaded that the accident was contributed by the respondent’s accident.

2. The trial court by its judgment dated 20th December, 2019 found the appellant 100% liable for the accident and awarded the respondent Kshs.2. 5 million for pain and suffering and special damages as pleaded and proved of Kshs.614,090 and Kshs.60,000 for future medical expenses.

3. The appellant was aggrieved with that judgment and has filed this appeal. The grounds of appeal seek reversal of the trial court’s finding on liability and quantum.

ANALYSIS

4. The appellant faulted the trial court for making a finding that he was 100% liable for the accident. The appellant submitted that the trial court’s finding on liability was contrary to the evidence adduced during the trial. That, that evidence was unclear on who was to blame for the accident. It is the appellant’s stance that the trial court ought in those circumstances to have held the appellant and the rider of the motor cycle equally liable for the accident. In other words, that the share of liability should have been on 50:50 basis. The appellant cited the case BAKER VS. MARKET HARBOROUGH INDUSTRIAL CO-OPERATIVES SOCIETY LIMITED (1953) I WLR 1472.

5. The respondent did not directly respond to that submission other than submitting that the evidence called by the appellant at the trial did not address liability.

6. The respondent was a passenger on the motor cycle. She sued the driver of the motor vehicle before the trial court. It is unclear what negligence the appellant attributes to the respondent. Negligence, if at all could only be attributable to the rider of the motor cycle and not to the respondent who was a passenger.

7. The appellant failed to join the motor cycle rider as a third party in the action before the trial court.

8. The respondent in her testimony stated that she wore a helmet while riding on the motor cycle. The helmet fell off her head when she fell down following the collision of the motor vehicle and the motor cycle.

9. The appellant called a police officer at the trial who produced a police abstract. The police abstract blamed the motor cycle riding. There is however no evidence that the motor cycle rider was charged with any offence relating to that accident.

10. The appellant did not adduce evidence showing the respondent in any way contributed to the accident. The respondent narrated in her evidence how the motor vehicle hit the motor cycle on which she was a passenger she then stated that she blamed the driver of the motor vehicle.

11. The appellant, as stated before, even in blaming the rider of the motor cycle, for the accident, did not apply for Third Party Notice as provided under Order 1 Rule 15 of the Civil Procedure Rules. That rule provides:-

“15(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,

c) ... shall apply to the court within fourteen days after the close of pleadings for leave of 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."

12. Having failed to join the motor cycle rider as a third party and because no negligence can be attributed to the respondent who was a passenger and because the respondent adduced eye witness evidence the appellants ground on the finding of liability must and does fail. This indeed is in accordance of the jurisprudence espoused in the case STELLA MUTHONI vs. JAPHET MUTEGI (2016) eKLR where the court held:-

“InNTULELE ESTATE TRANSPORTERS LTD & ANOR .V. PATRICK OMUTANYI MUKOLWE(supra),the court faced with a similar situation held:-

‘Secondly, having failed to join the estate of the motorcyclist as a party to the proceedings, I do not think any blame could be attributed to a party who had not been joined in the proceedings. In the case ofBENSON CHARLES OCHIENG & ANOR .V. PATRICIA OTIENO HCCA 69 OF 2010 (UR)the court held:-

‘The trial court could not have apportioned liability between the appellants and a person who was not a party to this suit. This court is unable to agree with the Appellant's argument which was to the effect that the Respondent ought to be blamed for not joining the third party into the proceedings. This cannot be because it is the Appellants who will bear the consequences of any failure to include the third party into the proceedings.

Mutatis Mutandis, in the present appeal, it is the Appellants who were to face the consequences for failure to join the motorcyclist to the suit. Having failed to join that party, the argument as to contribution of negligence fail.’"

13. The other issue raised in the appellant’s grounds is that the award in general damages of the trial court failed to consider that the injuries in the plaint were not supported by the evidence adduced by the respondent.

14. The appellant erred in making those submissions. The respondent relied on the medical report of Dr. N.H. Bhanji which report clearly indicated that the respondent suffered head injury which was a cerebral concussion. The appellant having erred in so submitting, this Court finds no basis of interfering with the trial court’s awards. An appellate court should not interfere with the exercise of trial court’s discretion in making an award unless it is satisfied that the trial court in making the award, misdirected itself. See the case MBOGO VS. SHAH (1968 EAL. In this case, the trial court did not misdirect itself.

15. In the end, I find no merit in this appeal. Accordingly, this appeal is dismissed with costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

For appellant : - Mr. Nganga

For Respondent : - Ms. Mwangi

JUDGMENTdelivered virtually.

MARY KASANGO

JUDGE