[2001] KEHC 12 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Suit 6005 of 1992

FELISTA WANJIKU GICHU.....................................PLAINTIFF

VERSUS

AKAMBA PUBLIC SERVICE & ANOTHER......DEFENDANT

JUDGMENT

The suit before me is a TEST SUIT. It is a case that involves a motor vehicle collision between three vehicles. The parties agreed that this court determines the issue of liability only at this stage.

The plaintiff in this case is a widow and brought this suit on her behalf and the estate of her late husband who was a fare paying passenger in the 1st defendants vehicle. He is represented by M/s Muchai Mulwa & Co. Advocates.

The Akamba Public Road Service Ltd – is a bus company owning registration vehicle No KYJ 426 and is the 1st defendant. It is represented by M/s Kairu, Mc court.

The agricultural Development Corporation is the registered owner of the vehicle reg. Number KYY 891. They are the 2nd defendants. M/s L.K. Gitau represents them.

Tomorco Industries Ltd. is the registered owner of motor vehicle reg. Number KHY 426. They are the 3rd defendants and M/s Shah & Parekh represents them.

The 1st defendant had filed a notice of motion application dated the 17th of June 1998 praying that all the proceedings against the defendants be stayed pending the determination of liability between the parties. This application was granted by consent on the 16th of October 1998 by Oguk, J.

The issues agreed between the parties on 6. 4.95 is as follows:

(a) Whether the accident occurred solely as a result of the negligence of the servant of the first defendant

(b) Whether the servants/agents of the second third defendants caused or contributed to the accident and if so how much?

In the light that the drivers to the 1st and 3rd defendants had died and the driver to the 2nd defendant was not traced, it was agreed to put in two to three reports by consent. These were:-

(1) Investigation report dated the 26. 1.90

(2) Investigation report dated the 18. 1.90

(3) Police abstract report dated 22. 11. 89

(4) Police file IAR (F) 201/89

This court granted this prayer but made orders that the documents were to be put in without calling the maker thereof. Witnesses therefore came to give evidence on the investigations report of Hono. Associates (K) Ltd dated the 26. 1.90.

The facts of this case from the evidence given are as follows:

The plaintiff called two witnesses besides herself. The plaintiff was not at the scene of accident. She received news of her husband’s death. PW2, her brother in law was a passenger in the 1st defendants bus. He stated how they left Nairobi and had a short stop at Naivasha. As the bus travelled between Naivasha and Nakuru it reached a place known as Mbaruk an accident occurred. His brother (and husband to the plaintiff) died in the accident. He was admitted to hospital. He stated in his evidence that it was drizzling that night. That the driver of the 1st defendant was over speeding. The bus was at the point of overtaking when the accident occurred.

PW3 was also a passenger in the said bus. He was no relative to PW1 and PW2. He informed the court that he worked in Kisumu. He boarded the 1st defendants bus at Nairobi at around 9. 00 p.m.

As they reached Naivasha there was a short break taken. They continued their journey. It was drizzling and foggy. He noticed that the driver was driving at a high speed. He was seated in seat No. 40 at the back. It was not a window seat but an aisle seat. He was able to see the front through the windscreen. At all times he was not asleep. He was in fact eating and was alert.

There was a loud bhang. PW3 saw a lorry in front of him.

The 1st and 2nd defendants called no evidence. The 3rd defendant called two witnesses. The first DW1 Chief Inspector Paul Kimutai Yegol formally the base commander of Nakuru Traffic base between 1989 and 1992.

The second witness DW2 Mr Awan Mustaqum Khan a director of a private investigator who produced the investigations report.

From the evidence of DW1, he stated that on the material time when the accident occurred he was base commander. He has his junior personnel investigate the accident. He is not based in Garisssa and collected the police file from Nakuru without first verifying the documents inside. When he came to court he confirmed his cross-examination that there were certain documents that were missing from the file.

Nonetheless he was able to identify the owners of the respective vehicle and confirmed the attendance to the scene of his personnel.

DW2 on the other hand retired as an assistant Commissioner of Police, in 1983. He has had twenty five and a half years experience in the police force. He had dispatched one of his employees to investigate the said case. Unfortunately the said employee has since died. The report he produced before the court contained the sketch maps and photographs of the scene.

To his opinion, the accident was caused by the 1st defendants vehicle but overtaking a lorry trailer thereby colliding with an oncoming vehicle.

In cross-examination he stated that photographs of other vehicles were not taken, as the vehicles were not at the police station. He also stated that DW1 had investigated the case.

As stated earlier no witness was called to produce the other investigations report. The parties agreed that the marker need not attend court but that the same should be produced.

From the foregoing, the evidence of the plaintiffs witness is that the 1st defendants vehicle was over speeding. The 1st defendants vehicle was behind a trailer belonging to the third defendant reg. KWU 346 ZA 640. It overtook the said vehicle at a point where the 2nd defendants motor vehicle lorry KYY 891 was approaching in the opposite direction. The 1st defendants vehicle tried to go back to its correct lane but was unable to completely do so. It collided with the trailer (from behind) and the 2nd defendants vehicle KYY 891 from the front. The trailer then hit the 2nd defendants vehicle.

From the circumstances of the case, I find that the 1st defendants vehicle was over speeding.

That the 1st defendant overtook a long vehicle (belonging to the 3rd defendant) and in the process an oncoming vehicle was coming belonging to the 2nd defendant.

I find that the 1st defendant was unable to keep to his side of the lane. When attempting to do so collided with the 2nd defendants vehicle from in front and the 3rd defendants vehicle hit the 1st defendant from behind then went to hit the 2nd vehicle.

I rely on the investigations report by M/s Secupark Ltd produced by Mr Khan as being an accurate sketch of the events so far from that occurred. I also rely on the eye witnesses’ evidence on the aspect of speed.

From the foregoing I hereby hold that the 1st defendant is liable for this accident solely. I would find liability at 100%. This accident occurred solely as a result of the negligence of the servant of the first defendant.

As to issue No.(b) I hold that the servants/agents of the second and third defendants did not cause or contribute to the accident.

I hereby enter judgment on liability against the 1st defendant at 100%. Costs to abide and or be in the cause and to await the finalization of the main trial on quantum.

Dated this 21st day of February 2001 at Nairobi.

M.A. ANG’AWA

JUDGE