[2015] KEHC 2923 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

COMMERCIAL CASE NO. 157 OF 2006

FOURWAYS TRAVEL SERVICES (A) LTD….…......................................….…….PLAINTIFF

VERSUS

DRUMCON (1972) LTD………..………………..............................……..………DEFENDANT

JUDGMENT

PRELIMINARY

1. This Case was part heard by Justice Waki, as he then was now a Judge of the Court of Appeal, and concluded before Justice Azangalala as he also then was now a Judge of the Court of appeal. The duty of writing this judgment fell on me.

2. FOURWAY TRAVEL SERVICES (A) LIMITED, the plaintiff herein filed this case against DRUMCON [1972] LIMITED, the defendant claiming for material damage. The plaintiff’s material damage relates to the loss of Kshs. 724,836. 00 incurred when their motor vehicle registration No. KAG 102M was written off following its collision with defendant’s Lorry registration No. KWV 271 on 9th September 1994.

3. The plaintiff has failed to prove its case on a balance of probability and the same is dismissed with costs to the defendant.

4. The plaintiff’s case fails on two grounds; firstly because it failed to properly plead its case; and secondly because the plaintiff failed to prove that the defendant’s negligence caused the collision.

THE FIRST GROUND FOR DISMISSAL

5. The plaintiff pleaded that it had suffered material damage after the collision occurred because their vehicle was written off. They assessed their loss at kshs. 724,836. 00.

6. The first witness for the plaintiff AMINA AHMED ABDUL HADI stated when cross examined by defendant’s Counsel that she was not present when the subject accident occurred.

7. In examination in chief, she stated

“Our vehicle was insured. It was insured with Jubilee Insurance Co. Ltd. The insurance paid us Shs. 639,000 less excess of 36,000/=. We want to recover the money on behalf of the insurance.”

8. PW3 JOHN MARK OTIENO GANGLA said that he was an employee of the claims department of Jubilee Insurance. Jubilee had Comprehensively insured the plaintiff’s vehicle registration No. KAC 102M. He then stated:

“As a result of the accident we paid Kshs. 639,000 which was net of the excess of 36,000… I produce a discharge Voucher and a copy of a Credit Note….. After that under insurance law, we have subrogation right and are seeking to recover the outlay.”

9. On being cross examined by the defendant’s Learned Counsel PW3 stated:

“I do not have any document to show we are exercising our rights of subrogation.”

10. The plaintiff’s Plaint bears no pleading which shows that this is a claim where the insurance company seeks to exercise its subrogation rights. Indeed it was not until PW1 and PW3 testified that it was revealed that the Jubilee Insurance Company was seeking to recover the amount paid to its insured in exercise of its subrogation right.

11. The plaintiff’s claim fails because it did not plead subrogation right as alluded in the testimony of PW1 and PW3. I recently had the opportunity to consider a very similar scenario in the case MOMBASA HCC. NO. 79 OF 2012 GABRIEL MWASHUMA-VS- MOHAMMED SAJJAD MILLY GLASS WORKS LIMITED viz:

“The plaintiff for the first time while testifying relied on a letter written by the Allianz Private Health Insurance dated 18th November 2011 by which letter the Insurance Company sought to be reimbursed under the principle of subrogation the amount it expended in the treatment of the Plaintiff. That subrogation right was not all pleaded and neither was it specifically proved. For that reason that claim must and does fail. In this regard I am persuaded by a decision Kwazulu-Natal High Court in South Africa, namelyNKOSI-VS-MBATHA (AR20/10) (2010) ZAKZPHC 38where the court stated:

“However, the plaintiff said it for the first time under cross-examination that she was proceeding against the Defendant on behalf of the insurer for the recovery of the costs of repairs the insurer paid to her. It does not appear from the Plaintiff’s pleadings that she was so suing. I am of the view that a subrogation claim is something which must clearly be proved and specifically pleaded. Nor had any mention been made in the Plaintiff’ pleadings that her motor vehicle was insured and that after collision the insurer fully indemnified the Plaintiff for the loss she had suffered. Nor did the Plaintiff plead that the amount to be recovered from the defendant would be paid over to the insurer. The object of pleadings is to define the issues between the parties and the parties must be kept strictly to their pleas where any departure could cause prejudice. See Robinson -v- Randfontein Estates GM Co. LTD 1925 and 173 at 178 as per Rose-Innes CJ. The party is therefore not allowed to direct the attention of the other party to one issue and at the trial attempt to canvass another Nyandeni v. Natal Motor Industries ltd 1974(2) SA 274(D). In the request for further particulars the Plaintiff was specifically asked whether her motor vehicle was at the time of the collision insured, and whether she had personally paid for the repairs. The Plaintiff refused to answer the questions posed to her on grounds that the information resisted was not required for pleading. In my view, the Plaintiff had thereby misled the defendant as to the time and correct state of events and as to the nature of her claim.”

12. Indeed I would add that since the plaintiff has already been compensated by the Insurance company, going by the testimony of PW1 and PW3, to allow the plaintiff succeed in this claim would be to allow the plaintiff to have double compensation for its loss. That is my view would not be just.

13. The plaintiff therefore failed to plead its case and the case fails on that ground.

SECOND GROUND FOR DISMISSAL

14. The plaintiff’s claim alleged that the accident, which resulted to the damage of its car, was caused by the defendant’s driver’s negligence.

15. As stated before, PW1 did not witness the accident and she therefore was unable to advance the plaintiff’s claim in regard to defendant’s alleged negligence. Indeed two witnesses PW2 and PW3 also did not witness the accident. They could not assist either.

16. PW4 P.C. DANIEL MULUHI even though he was not an eye witness to the accident produced the police file relating to the investigation of the subject accident. He summarized the police investigations, in particular the report of P.C Kioo, as follows:-

“He (P.C. Kioo) was the in charge officer. He stated that motor vehicle registration No. KAC 102M pulled from the left side to the right side of the road and thereby collided onto Lorry registration No. KWV 271 causing a serious road traffic accident. According to police constable Kioo, the saloon car driver was to blame. The drive was not however charged.”

That evidence squarely lays the blame for the accident on the plaintiff’s driver.

17. The police file that PW4 produced was even more damning. The driver and the passenger in the Lorry registration No. KWV 271 in their recorded statements stated that the plaintiff’s driver left his Lane drove to the Lane where their Lorry was and thereby collided with the Lorry. Indeed P.C Kioo who was the first officer on the scene of the accident found the lorry pinned against an electric pole following that collision caused by the plaintiff. This is what the police officer Kioo recorded in his Statement:-

“On my arrival at the scene I found that the driver of motor vehicle registration No. KAC 102M was pulled from his lane (sic) to the right side of the road and that is why the vehicles were (sic) collided.”

18. Later on the said officer recommended the driver of the plaintiff to be charged with the office of careless driving contrary to Section 49(1) of the Traffic Act Cap 403. In his own words he so recommended because:

“If he (plaintiff’s driver) did not pull (sic) from his Lane the accident couldn’t occur.”

19. Further the police sketch map leaves no doubt that it was the plaintiff’s driver who left his Lane drove onto the defendant’s Lane and thereby caused the collision.

20. For reasons I do not understand there are more than one police abstract. Two of them show that the case was still under investigation. One shows that the plaintiff’s driver was to blame and two blame the defendant’s driver.

21. It must be clear by now that the plaintiff failed to prove on balance of probability that the accident occurred as result of the defendant’s negligence. The defendant’s Learned Counsel was correct in his submissions in relying on following cases where the courts found that a party had failed to prove his/her case on required standards of proof. In the case JENNIFER NYAMBURA KAMAU-VS-HUMPHREY MBAKA NANDI (2013) eKLR the court of appeal stated:-

“We have considered the rival submissions on this point and state that section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the Respondent. Section 107 of the Evidence Act provides that “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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”

22. In the case of STEPHEN WASIKE WAKHU & ANOTHER –VS- SECURITY EXPRESS LIMITED [2006] eKLR, the court stated as follows:

“A party seeking justice must place before the court all material evidence and facts which considered in light of the law would enable the court to arrive at the decision as to whether the relief sought is available. Hence the legal dictum that “he who alleges must prove.”

23. The plaintiff’s claim therefore further fails because the plaintiff did not shift the burden of proof.

CONCLUSIONS

24. Consequently, following the above findings, the plaintiff’s case is dismissed with costs to the defendant.

DATED and DELIVERED at MOMBASA this 24th day of September, 2015.

MARY KASANGO

JUDGE

24. 9.2015

Coram

Before Justice Mary Kasango

Court Assistant:-

For the Plaintiffs:-

For the Defendants:-

Court:

Judgment delivered in their presence/absence in open court.

MARY KASANGO

JUDGE