[2017] KEHC 3163 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 27 OF 2004

D.T. DOBIE (K) LIMITED...........................APPELLANT

VERSUS

1. MARGARET I. TITI T/A SEASON FASHION WEAR

2. SAMMY SANDA IVALI

3. RHINO SAFARIS LIMITED...............RESPONDENT

(Being an Appeal against the judgment and decree of Hon. J. R. Karanja (C.M.) in

Machakos CMCC No. 1137 of 2000 delivered on 26th February, 2004)

JUDGEMENT

1. In Machakos CMCC No. 1137 of 2000, the appellant D.T. Dobie & Company (K) Limited was the 3rd party, the 1st respondent herein, the plaintiff and the 2nd and 3rd respondents, the defendants.

2. The 1st Respondent had filed the suit seeking recovery of damages from a road traffic accident alleged to have occurred on 13th September, 1998 along Nairobi – Mombasa road near small world. By a plaint dated 2nd August, 2000, the plaintiff sued the 2nd respondent as the registered owner of motor vehicle registration number KAJ 695T and the 3rd respondent as owner of motor vehicle registration number KAB 928Y. She claimed that she was on the material day travelling aboard motor vehicle registration number KAJ 695T when the drivers of KAJ 695T and KAB 928Y drove the vehicles negligently and cause an accident. As a result of the said accident, she was occasioned serious bodily injures being:

i.Cut wound on both lips.

ii.Blunt injury to the neck.

iii.Blunt injury to the right arm.

iv.Cut wound (traverse) below the right knee.

v.Bruise on dorsum left foot.

3. She further claimed that her business of selling clothes was as a result closed between 13th September, 1998 and 28th November, 1998 when she was admitted for treatment and later put on bedrest. The said loss was said to be of KShs. 62,500/=. She further stated that she incurred costs of KShs. 150/= (police abstract) and KShs. 71,500/= (medical report, treatment and transport).

4. In its statement of defence dated 8th November, 2000, the 3rd respondent denied the 1st respondent’s claim. It contended that it had at the material time sold motor vehicle registration number KAB 928Y to the appellant. It was stated that the transfer was effected on 21st December, 1995.

5. The appellant on the other hand denied the 3rd respondent’s claim. It was contended that the 3rd respondent merely forwarded the said vehicle to the appellant for purposes of resale and at no time did the 3rd respondent effect transfer ownership of the said vehicle. The appellant thereby denied ownership of the vehicle and further that it was liable to indemnify the 3rd respondent against the judgment.

6. At the trial, Dr. Zachary Kibore (PW1) who examined the 1st respondent on 26th February, 2002 confirmed her injuries and produced a medical report as P. Exhibit 1. On cross examination, he stated that he examined the 1st respondent 3 years after the accident and that at the time, she had fully recovered with no permanent disability.

7. The 1st respondent (PW2) testified that she was on the material day travelling from Nairobi to Machakos. As the driver had just passed a bridge by the name MtowaMawe, she noticed an oncoming vehicle. The said vehicle had other behind it. The said vehicle was attempting to overtake, it entered their path and she alerted the driver of KAJ 695T. KAJ 695T was at the time moving in a zigzag manner. She suddenly heard a loud bang and went into shock. She was taken to hospital where she was admitted for 3 days and discharged upon her request due to expenses. The matter was reported to Athi River Police station where she was issued with a police abstract. She produced search documents as P. Exhibit 3a – 5 as proof of ownership of the vehicles. She stated that she was later examined by Dr. Kibore at a cost of KShs. 1,500/=. A receipt to that effect was produced a P. Exhibit 4. That she incurred medical expenses of KShs. 43,740/= at Nairobi Hospital, KShs. 16, 500/= being treatment by Dr. Roy Sande and KShs. 15,500/= for medication. She also stated that she incurred a cost of KShs. 150/= for the police abstract. Receipts for the same were produced as P. Exhibit 5a – 5c, P. Exhibit 6 and 7. The P3 form was produced as P. Exhibit 8. She stated that she used to run a clothes boutique from which she suffered a loss of KShs. 60,000/= while undergoing treatment and she produced a license as P. Exhibit 9. He produced her financial records for the business as P. Exhibit 10.

8. P.C. Weldon Towett (PW3) who was a police officer attached to Athi river police station confirmed the occurrence of the accident and produced the police abstract as P. Exhibit 2. On cross examination, he stated that the vehicles were on both sides of the road. That KAB 928Y was on the wrong side of the road and it was to blame for the accident. She stated that the police abstract did not bear his name as the investigating officer to the case.

9. The 2nd respondent (DW1) testified that his driver for motor vehicle registration number KAJ 695T passed on following illness and not due to the accident. That the said driver was never charged with a traffic offence in relation to the accident. He stated that the driver of motor vehicle registration number KAB 928Y was the one blamed for the accident.

10. AntoninusSprianos De Souza (DW2) who was the 3rd respondent’s General Manager testified that sometime in the year 2005, he negotiated with the appellant for the purchase of buses. That there was an agreement to trade in five old buses for eight new buses. Among the five buses was KAB 928Y. The bust was collected from the 3rd respondent on 24th November, 1995. The accompanying document for the collection was produced as D. Exhibit 1. After the collection, the appellant issued a credit note (D. Exhibit 2). The 3rd respondent then endorsed the logbook and the transfer documents (D. Exhibit 3) and handed them over to the appellant. He stated that the 3rd respondent took appropriate steps to ensure the transfer. A letter dated 29th December, 1995 (D. Exhibit 4) was written to the registrar of motor vehicles. That when they the case came up, the 3rd respondent contacted the appellant who responded by informing the 3rd respondent that they had sold the vehicle to another person. He produced correspondence as D. Exhibit 6 a-b) and confirmed that the 3rd respondent was no longer the owner of m/v KAB 928Y.

11. Martin Muiruri Ndungu (T.W.1) who was the Assistant Credit Manager of the appellant testified that the appellant traded vehicles with the 3rd respondent for re sale. That among those taken by the appellant was KAB 928Y. The appellant accordingly informed the registrar of motor vehicles vide a letter of 22nd January, 1996 (T. Exhibit 1) that the vehicle was now being held by the appellant. He however stated that the vehicle was not registered in the appellant’s name. He produced a transfer form which was acknowledged by the registrar of motor vehicles as T. Exhibit 2. He stated that the 3rd respondent on 30th July, 1996 sold the vehicle to C. D. Enterprises for KShs. 600,000/=. An invoice and sale contract were thereby produced as T. Exhibit 3a-b.

12. The trial magistrate arrived at a decision and found the 2nd respondent and the 3rd respondent liable at the ration of 30:70. And awarded the 1st respondent KShs. 182, 135/= plus costs and interests.

13. The appellant filed this appeal on the following grounds:

a)That the learned magistrate erred in law and fact in entering judgment in favour of the plaintiff as she had not proved her case on a balance of probabilities.

b)That in awarding the plaintiff judgment in the sum of KShs. 182,135. 00 as damages, the trial magistrate completely misdirected himself in principle thus arriving at a wrong decision.

c)That the learned magistrate erred in law in relying on hearsay evidence.

d)That the learned magistrate erred in fact and in law in holding the appellant liable to indemnify the 2nd defendant.

e)That the evidence led by the 2nd defendant was at variance with and a departure from the pleadings filed in court.

f)That in finding the 3rd party liable to indemnify the 2nd defendant, the trial magistrate completely misdirected himself on the law applicable thus arriving at a wrong decision.

14. The appellant relied on section 107 and 108 of the Evidence Act, Roe v. Minister of Health [1954] 2 ALL ER 131, Simpson v. Peat [1952] 1 ALL ER 443 at 449, Mutuku v. Kenya Cargo Services Ltd [1991] KLR 464, Lakhamshi v. Attorney General [1971] EA 118 and Mukasa v. Singh and others EA 442 and argued that the onus was upon the 1st respondent to prove negligence. It was further submitted that the 1st respondent was under duty not only to plead special damages but also to prove the same. It was contended that there was no sale agreement entered into between the 3rd respondent and the appellant and that the appellant was merely acting as an agent of the 3rd respondent in selling the traded vehicle.

15. It was submitted on behalf of the 3rd respondent that in order to establish vicarious liability on the part of the 3rd respondent, the 1strespondent had the legal burden to prove that the driver was an employee or an agent under instructions of the 3rd respondent but that the same was not established. The 3rd respondent relied on Tabitha Nduthi Kinyua v. Francis Mutua Mbuvi & another (2014) eKLR and Launchbury and others v. Morgans and others (1972) All ER 606to advance that argument. It was further argued that it is trite that the person in whose name a vehicle is registered shall unless the contrary is proved, be deemed to be the owner of the vehicle. Citing Nancy Ayemba Ngaira v. Abdi Ali (2010) eKLR, Osuma Apima Nyaundi v. Charles Isaboke Onyancha Kibondori & 3 others (1996) eKLR, Joel Muga Opija v. East African Sea Food Limited (2013) eKLR and Securicor Kenya Limited v. Kyumba Holdings Limited (2005) eKLR.

16. This being a first appeal, this court is under duty to re assess and analyze the case afresh and arrive at its own independent conclusion. I have considered the appeal and the submissions tendered herein. The issues that fall for determination are:

a)Whether or not the magistrate erred in holding that the appellant was to indemnify the 3rd respondent.

b)Whether or not the magistrate was misdirected in awarding the 1st respondent damages of KShs. 182,135. 00.

17. On the first issue, DW2 testified that it traded in with the appellant five old buses among them KAB 928Y with 8 new buses. The buses were collected from the 3rd respondent on 24th November, 1995 as illustrated by the accompanying document and credit note. P. Exhibits 1 and 2 respectively. By a letter dated 29th December, 1995, the 3rd respondent wrote to the registrar of motor vehicles informing the registrar that the ownership of the five buses had changed. It also executed transfer documents which were sent to the registrar. P. Exhibit 6 a-b support that testimony. T.W 1 stated that the appellant informed the registrar by a letter dated 22nd January, 1996 that the five buses were now held by the appellant. From the above circumstances, an inference can be drawn that the ownership of the motor vehicle had changed hands even though the registrar of motor vehicles had not so registered. It is worth noting that the search is not the only way of proving ownership considering that ownership of motor vehicles change hands without the registrar noting so just like it happened in this case. While the appellant wants this court to believe that the 1st respondent did not sell to it the vehicle, I note that no evidence was furnished to prove that the alleged sale of the vehicle to another party on 30th June, 1996 was done on behalf of and in the interest of the 3rd respondent. If that was the case, it could have been prudent for the appellant to bring evidence to show that the proceeds of the sale was forwarded to the 3rd Respondent.

The dictionary meaning of trade in is a method of buying something new by giving something one owns as part payment for it or a used item accepted by a retailer in partial payment for another. If follows therefore that the appellant bought the said vehicle in the year 1995 otherwise a credit note (D. Exhibit 2), which the appellant did not disown, could not have been issued. Or rather, for what purpose then was the credit note, if truly the vehicle was not sold to the appellant? The appellant did not offer an explanation why it was issued with a credit note. This court is minded that the Traffic Act is an act of Parliament to consolidate the law relating to traffic on the road and not an Act which decides de facto or de jure ownership of vehicles, considering that ownership of vehicles passes by sale and delivery and registration books are only evidence of title. Property of the vehicle however passes in accordance with the Sale of Goods Act when the contract is made. It is noteworthy also that it is not in all cases that contracts are written. See Osumo Apima Nyaundi v. Isaboke Onyancha Kibondori & 3 others Civil Appeal No. 46 of 1996.

18. The appellant’s witness, TW1 stated that the vehicle was sold to another party on 30th July, 1996. Considering that the 3rd respondent had proven that it sold the vehicle to the appellant, the burden now shifted to the appellant to bring on board the alleged buyer of the vehicle. Failure to which it is found to be the owner of the vehicle.

19. Having so found, the next question that begs is whether the appellant was liable for the accident. Having found that the appellant was the owner of the vehicle, thereby a beneficiary therein, the vehicle was held to have been used for its benefit at the time. There was no evidence to the contrary. It emerged from the record that the driver of motor vehicle KAB 928Y while overtaking occasioned the accident. It also emerged that the conditions under which he was overtaking was not conducive in the circumstances. The driver was largely to blame since he was overtaking in the already mentioned circumstances. The driver of KAJ 695T too must be held liable for speeding. Had he been driving at a reasonable speed he could have managed the vehicle to avoid the accident. In the circumstances, I find that the trial magistrate’s decision on liability was reasonable.

20. The principles that guide an appellate court in deciding whether or not to interfere with the award of damages made by the trial court have been established in various judicial pronouncements among them Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v. Lubia& Another (1987) KLR 30wherethe Court of Appeal held that in order to disturb the quantum of damages awarded by a trial judgean appellate court

“must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage…”

21. Similarly in Butt v. Khan (1977) 1 KAR the Court of Appeal held as follows;

“An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”

22. The 1st respondent suffered, cut wound on both lips, blunt injury to the neck, blunt injury to the right arm, cut wound (traverse) below the right knee and bruise on dorsum left foot. She was admitted in hospital for treatment for 3 days. Considering the nature of her injuries and the rate of inflation on the Kenya Shilling, I find that the award of the trial magistrate was reasonable. In the end I find that this appeal is not merited and is hereby dismissed with costs to the 1st respondent.

It is so ordered.

Dated, signed and delivered at MACHAKOS this 6thday of October, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Musyimi for Kipkorir for the Appellant

N/A for the 1stRespondent

N/A for the 2ndRespondent

Kavita for Nyacholafor the 3rdRespondent

C/A: Kituva