[2022] KEHC 11322 (KLR)

Gudka Hardware Limited & another v Masibo & another (Civil Appeal 14 of 2017) [2022] KEHC 11322 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11322 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal 14 of 2017

LK Kimaru, J

June 14, 2022

Between

Gudka Hardware Limited

1st Appellant

Owino Kamulus

2nd Appellant

and

Donald Wanjala Masibo

1st Respondent

Rajay

2nd Respondent

(Being an appeal from the Judgment and Decree of Hon. V.W. Wandera CM in Kitale CMCC No. 293 of 2013 delivered on 4 th April, 2017)

Judgment

1. The Appellants have preferred this appeal against the trial court’s judgment delivered on 4th April 2017 in Kitale CMCC No. 293 of 2013; Donald Wanjala Masibo –vs- MR. Rajay & 2 others. In his Plaint, the 1st Respondent averred that on or about 25th February 2013 at about 5:30 p.m., he was on board motor vehicle registration number KAW 264T Toyota Hillux Pick-up. The said motor vehicle was at this time driven by the 2nd Appellant and owned and/or registered in favour of the 1st Appellant. While along Kitale-Milimani earth road near the showground, the 2nd Appellant drove the said motor vehicle so negligently, carelessly and/or recklessly, thereby caused an accident wherein the 1st Respondent sustained serious injuries. The 1st Respondent particularized special damages to the sum of Kshs. 7,610. 00. He sought general damages, special damages, costs and interest of the suit.

2. The trial court entered interlocutory judgment against the 2nd Respondent. The matter then proceeded for full hearing against the Appellants. At the close of hearing, the court found the Appellants 100% liable. The court further awarded the 1st Respondent the sum of Kshs. 406, 110. 00 in general and special damages together with costs and interest of the suit.

3. The Appellants’ Memorandum of Appeal dated 28th April 2017 and filed on 2nd May 2017 raised ten (10) grounds of appeal against the impugned judgement. According to the Appellants, the learned trial magistrate erred in law and in fact in:1. Holding the Appellants 100% liable in negligence without considering the evidence and the legal concept of negligence.2. Holding that the 1st Respondent had established a case contrary to the evidence on record.3. Awarding damages to the 1st Respondent without any basis and which damages were inordinately too high and amounted to a gross overstatement of the loss suffered.4. Failing to make a finding as to whether or not the issue of vicarious liability was adequately proved.5. Failing to evaluate, consider and determine all the issues raised in the pleadings and in evidence especially as to how the accident occurred hence an erroneous judgment.6. Failing to consider the provisions of Order 21 Rule 4 of the Civil Procedure Rules and other provisions as required by law.7. Failing to dismiss the claim with costs for want of proof.8. Failing to hold the 1st Respondent wholly liable and/or substantially liable for the accident.9. Falling to find that the 1st Respondent was careless while on the road and therefore the cause of his own misfortune.10. Failing to hold that the 1st Respondent’s bicycle was defective and the 1st Respondent could not control the same hence the accident.

4. The Appellants prayed for the judgment to be set aside and that the 1st Respondent’s claim be dismissed with costs.

5. During the hearing, parties to this appeal by consent canvassed the appeal by way of written submissions. In support of their Appeal, the Appellants submitted that the 1st Respondent failed to satisfy the provisions set out in Section 107 of the Evidence Act. He failed to discharge the burden of proof. They submitted that the 1st Respondent had no master-servant relationship with the 1st Appellant. He was therefore persona non grata in the subject motor vehicle. He was the author of his own fortune as they submitted that he jumped into the back of the pick-up without authorization. Consequently, no liability could be attached to the Appellants. The Appellants relied on the doctrine of volenti non fit injuria to fortify that submission. They further stated that since the accident was pending under investigations, the Appellants could not be held accountable for causing it. The Appellants further challenged the trial court’s judgment. They contended that the judgment was scanty and bereft of points for determination. Accordingly, the learned magistrate was in breach of Order 21 Rule 4 of the Civil Procedure Rules. On quantum, the Appellants submitted that the award of Kshs. 406,110. 00 was grossly and manifestly excessive. In its stead, they proposed that the said sum be substituted to Kshs. 60,000. 00. They however maintained that the 1st Respondent was not entitled to damages as the medical evidence relied on was insufficient.

6. The 1st Respondent opposed the Appeal. He submitted that he was employed as a casual labourer by the 1st Appellant. He was duly authorized to be a passenger in the subject motor vehicle. He maintained that the Appellants were 100% liable for the accident. He pointed out that the Appellants blamed a lorry driver for the accident yet no third party proceedings were taken out. As regards the judgment, the 1st Respondent submitted that it conformed to the prerequisites envisaged in Order 21 Rule 4 of the Civil Procedure Rules. Finally on quantum, the 1st Respondent submitted that the same was reasonable and fair when looked at against the injuries he sustained.

7. This court has carefully re-evaluated the evidence adduced before the trial court. It has also considered the submissions made by the parties to this appeal. This being a first appeal, this court is obligated to re-evaluate and re-appraise the evidence adduced in the trial court in order to arrive at its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. [Selle vs Associated Motor Boat Company Ltd[1968] EA 123. ]

8. Having examined the matter in totality, this court shall make a determination under the following heads:

1. Whether the trial court’s judgment is in violation of Order 21 Rule 4 of the Civil Procedure Rules? 9. According to the Appellants, the judgment was in breach of the above provisions as it failed to enumerate the points for determination. Order 21 Rule 4 of the Civil Procedure Rules provides that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for the decision. The trial court’s judgment has been perused by this court. This court is satisfied that it complied with the law. The points for determination were clearly set out and the reasons for the verdict reached were explained in the judgment.

2. Whether the Appellants were 100% liable for the accident? 10. The 1st Respondent testified that in 2013, he served as a casual labourer for the 1st Appellant. He was contracted by the 1st Appellant to offload cement on 25th February 2013. He was in the company of the 2nd Appellant who was driving motor vehicle registration number KAW 264T Toyota Hillux Pick-up. The 1st Respondent sat on the left side of the vehicle. On their return journey, the 2nd Appellant drove the subject motor vehicle so carelessly that it was involved in an accident. Consequently, the 1st Respondent sustained a fracture of the left arm. He also sustained soft tissue injuries. He was admitted at Kitale District Hospital for one (1) week. Thereafter, the 1st Respondent reported the accident at Kitale Police Station. He was issued with a police abstract report. From the search at NTSA, he positively established that the vehicle belonged to the 1st Appellant.

11. PW1, PC Linda Akothtestified that the accident was self-involving. The 2nd Appellant swerved to the left side of the road when an oncoming lorry was approaching them. This interfered with his vision as dust billowed when the lorry was passing the vehicle. The subject motor vehicle then rolled causing one (1) person to sustain injuries. She confirmed that the 2nd Appellant failed to report the accident. He was later traced but no charges were preferred against him.

12. The Appellants called the 2nd Appellant as their sole witness. He confirmed that indeed an accident occurred save that he blamed the oncoming vehicle for squeezing him out of the road. He veered off to the left side of road to avoid a head on collision. Consequently, the vehicle overturned. His further testimony was that he was alone in the motor vehicle. He asserted that the 1st Respondent had illegally boarded the vehicle and was at the back of the pick up when the accident occurred.

13. The 2nd Appellant further testified that on occasion, the services of the 1st Respondent would be retained as a casual labourer. He however had not been assigned any duties on that day. He confirmed that the 1st Respondent suffered a fracture. He stated that he reported the accident at the Police Station. He then had the vehicle towed from the scene of the accident. He blamed the oncoming lorry for the accident and the 1st Respondent for being responsible for the injuries that he sustained as he had no permission to board the said vehicle.

14. On re-evaluation of the evidence and the submission made by the parties to this appeal, it is not denied that an accident occurred on 25th February 2013. It is also common ground that the 2nd Appellant and the 1st Respondent were in the suit motor vehicle that was involved in the accident along Kitale-Milimani earth road being motor vehicle registration number KAW 264T Toyota Hillux Pick-up. The accident, according to the 2nd Appellant, occurred as a result of dust that blinded his vision from an oncoming lorry. The 2nd Appellant blamed a third party lorry for causing the accident. However since, the Appellants failed to take out third party proceedings, that position in unsustainable. Indeed, as indicated by PW1, this was a self-involving accident.

15. The point of departure is whether the 1st Respondent had been contracted on that day by the 1st Appellant and therefore eligible for compensation by the 1st Appellant. On re-evaluation of the evidence, it was evident that the 1st Respondent was time and again engaged by the 1st Appellant to perform casual jobs. The question to be determined is whether he was lawfully on duty on the material day. According to the 1st Respondent, he was engaged to offload cement on the particular day. He was lawfully on the 1st Appellant’s motor vehicle on the return journey upon completion of his assigned duties. On the other hand, the 2nd Appellant denied that the 1st Respondent had been engaged on the particular day hence was illegally aboard the subject motor vehicle.

16. From the totality of the evidence adduced, it is clear that the 1st Respondent was aboard the subject motor vehicle when the accident occurred. The Appellants have advanced the theory that the 1st Respondent was not lawfully on the vehicle at the time of the accident. On the other hand, the 1st Respondent insists that he was lawfully on the vehicle. The evidence adduced clearly points to the irresistible conclusion that the 1st respondent had been hired on that day and was therefore a lawful passenger on the motor vehicle at the time of the accident. The Appellants were both directly and vicariously liable for the injuries that the 1st respondent sustained from the accident.

17. Following the accident, the 2nd Appellant alleged that he reported the its occurrence to the police. However, PW1, an officer attached to the Kitale Police station denied that such a report was ever made. It is clear that no such report was made to the police by the Appellants. It was the 1st respondent who made the report to the police after he had been discharged from the hospital. In the upshot, the trial court was right in holding the Appellants 100% liable for the accident. The finding on liability shall not be disturbed by this court.

3. Whether the 1st Respondent was entitled to be paid damages. 18. On quantum, the Appellants submitted that the 1st Respondent was not entitled to damages, and if the court found the same to be awardable, a sum of Kshs. 60,000. 00 would be sufficient compensation. Following the accident, the 1st Respondent suffered a fracture of the left forearm, closed injuries to the chest wall and a cut would on the left forearm. Had the 1st Respondent not been involved in the accident, he would not have sustained the injuries. He produced a discharge summary and a medical report setting out the injuries that he had suffered. He is therefore entitled to compensation. The Appellants propose a ballpark figure of Kshs. 60,000. 00 as sufficient compensation. These submissions have not been supported by any authorities or any justification. The medical report produced in evidence, assessed his permanent incapacity at 40%. The court awarded Kshs. 400,000. 00 in general damages for pain, suffering and loss of amenities. It also found that the sum of Kshs. 6,110. 00 was proved in special damages. In total the award of Kshs. 406, 110. 00 was legal, sufficient and proper in the circumstances. This court sees no legal reason to interfere with the same.

19. Ultimately, this court finds not reasons to interfere with the findings of the trial court. Consequently, the Appeal herein lacks merit. It is hereby dismissed with costs to the 1st Respondent. The interest shall be payable from the date of the judgment by the trial court.It is so ordered.

DATED at KITALE THIS 14TH DAY OF JUNE 2022. L. KIMARUJUDGE