[2017] KEHC 1940 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL NO.71 OF 2007

EUNICE NAFULA TEMBA....................................APPELLANT

VERSUS

MULTIPLE HAULIERS E.A. LTD........................RESPONDENT

JUDGEMENT

1. The Appellant Eunice Nafula Temba filed a suit as an administrator of the Estate of Silvianus Kinonge Simiyu deceased against the defendant Multiple Hauliers (E.A) Limited, as a result of an accident that occurred on 27th April, 2005 along Bungoma – Malaba road near Mayanja Kibuke area when the respondent’s vehicle registration number KAS 328N –ZC 137S had a tyre burst and the rim of the tyre disengaged from the tyre hitting the deceased wounding him severely. The appellant cited negligence as cause of the accident giving several attributes of negligence including not having proper control of the vehicle; failing to maintain the vehicle in good mechanical condition, driving carelessly and negligently. Further the appellant contended that she would rely on the doctrine of res ipsa loquitor.

2. The Appellant claim was brought under the Law Reform and Fatal Accidents Act. It was her case that due to the death the deceased dependants suffered loss and damage.

3. The Respondent on its part filed a defence denying ownership of the motor vehicle and the alleged accident. In the alternative the attributes of negligence alleged were denied in particular that its agent was reckless, careless or negligent in managing and controlling the motor vehicle in question. Further contributory negligence was pleaded.

4. The trial Court dismissed the Case which triggered this appeal as the Appellant was dissatisfied with the judgement. The appeal is based on the following grounds;

I.The trial Magistrate erred in Law and fact in dismissing the Case when the evidence supported the same.

II.The trial Magistrate dismissed the Case against his own finding that the respondents motor vehicle was to blame for the accident.

III.The trial Magistrate failed to consider the principles of res ipsa loquitor and strict liability.

IV.The trial Court failed to consider the liability on an owner of a mechanically defective motor vehicle.

5. This is the 1st Appellate Court and it must consider, examine, analyse and evaluate the evidence on record in order to arrive at an independent opinion remembering that the trial Court heard and saw the witnesses first hand. See Selle Vs Association Motor Boat Company Limited (1968) E.A. at 123.

6. The issues for determination are:-

1. Ownership of the motor vehicle

2. Whether there was an accident as alleged

3. What caused the accident

4. Whether the respondent was to blame for the accident, if so

5. What is the quantum of damages payable.

7. In his submission the respondent raised several issues that were not raised at trial and I will not dewelve on the same.

8. The plaintiff produced in evidence an abstract form that gave the name of the respondent as the owner. This was her evidence on ownership. However the respondent denied ownership but failed to rebut the evidence on the abstract form. The position in Law is now settled and on a balance of probabilities there was proof of ownership.

9. Both sides did admit in evidence that an accident occurred as the rim from the respondent’s motor vehicle disengaged and hit the deceased. The evidence of PW1 and DW1 – the driver of the motor vehicle were in agreement on this point. Although the DW1 maintained that he did not loose control – he admitted tyre burst and the fact that the rim disengaged from the tyre and hit the deceased who cycling off the road.

10. The Appellant has relied on the doctrine of res ipsa loquitor. It is her contention that the vehicle was mechanically unsound and that is why the faulty tyre burst, the rim disengaged and the same hit the deceased. On the other hand, the respondent denied this stating that the vehicle did not hit the deceased and the incident that occurred was not foreseeable and therefore no negligence could be attributed to it. In Embu Public Road Services Ltd V. Riimi (1968) E.A. at 22Sir Charles Newbold stated;

“As I understand the Law as set out by those two judgements of this Court, where the circumstances of the accident give rise to the inference of negligence then the defendant, in order to escape liability, has to show, in the words of Sir Alistair Forbces, ‘that there was a probable cause of the incident which does not connote negligence’ Or in other words which I have previously used that the Explanation for the accident was consistent only with an absence of negligence.”

11. In the current Case the Appellant pleaded negligence and lack of proper mechanical care of the vehicle.

In Schwan Vs The Albano 1892 P.419 relied upon In Dewshi V Kuldip’s Touring Co.(1969)E.A. the Court stated;

“what is the proper definition of inevitable accident? To mymind these Cases show clearly what is the proper definition ofinevitable accident as distinguished from mere negligence –that is a mere want of reasonable care and skill. In myopinion, a person relying on inevitable accident must show thatsomething happened over which he had no control, and theeffect of which could not have been avoided by the greatestcare and skill. That seems to me to be the very distinctionwhich was taken, and was meant to be taken between thecase of inevitable accident and a mere want of reasonable careand skill.” (Emphasize added)

In the same Case the Court cited a Case nearer the one before this Court. Barkway V South Wales Transport Co. (1948) 2 E.R 460 at 465 where Buck hill L J said;

“I think that the defendants, in order to avoid liability, mustprove to the satisfaction of the Court that they took allreasonable steps to ascertain that the tyre was fit for use…and I think on the evidence they failed to do so…”

12. In this instance the defendant failed to show in evidence that the tyre was not defective, that reasonable care and skill had been exercised before the accident or the journey to ensure that all tyres of the vehicles were fit for the journey.

No evidence came forth to prove that it was not lack of proper care that caused the accident and further that the accident could not have been avoided by the greatest care and skill.

13. In the absence of evidence to the contrary it is my view therefore that the vehicle’s tyre was defective thus leading to a tyre burst and disengaging of the rim that fatally injured the deceased and I find the respondent to have been 100% liable.

The Appellant’s Counsel agrees with the assessment of the trial Court. I find the proposal by respondent unreasonable as he gives no basis for his dependency ratio of ¼ of the deceased’s income.

In the circumstances I will go with the quantum as had been assessed by the trial Court that the deceased having been 44 years at the time of his death he earned a salary of 13,429 a month, a multiplier of 8 would be used with a ratio of dependency at 2/3rds. I assessed damages as follows;

1. Loss of dependency 8,430X12X8X2/3 Kshs.539,520

2. Loss of Expectation of life Kshs.80,000

3. Pain & Suffering Kshs.10,000

Total Kshs.629,520

4. Costs and interest

DATED and DELIVERED at BUNGOMA this 12th day of October, 2017

ALI-ARONI

JUDGE