[2013] KEHC 1205 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO. 122 OF 2003

(Being an appeal from the Judgment/Decree of Hon. Nicholas Ateya, SPM, Nakuru delivered on 4th July, 2003 in Nakuru CMCC No. 2919 of 1999)

JACOB LEEDER AUPRLE......................................................................APPELLANT

VERSUS

PAULINE MARY KAJIRA KIRIA …...............................................1ST RESPONDENT

KM

(Minor suing thro' next friend PAULINE KAJIRA KIRIA) …...........2ND RESPONDENT

KC (Minor suing thro' next friend PAULINE KAJIRA KIRIA)…3RD RESPONDENT

JUDGMENT

1. The Appellant was sued in Nakuru CMCC No. 299 of 1999, by the Respondents and in a Judgment delivered on 4th July 2003, the trial court awarded the Plaintiffs an aggregate of Ksh 290,000/= apportioned -

1st Plaintiff Shs. 150,000/=

2nd Plaintiff Shs. 80,000/=

3rd Plaintiff Shs. 60,000/=

and costs shared in the same proportions.

2. Aggrieved with the said judgment and orders the Appellant came to this court on appeal, and cited five grounds of appeal, the sum total of which is that the learned trial magistrate erred in finding the Appellant 50% liable for the accident without any evidential basis, and asked the court to review and/or set aside the orders of the lower court, and direct that the Respondent do bear the costs of both the appeal and also the lower court.

3. The appeal was opposed by the first, second and third Respondent (the Plaintiffs in the lower court). Mr. David Mongeri who was counsel for the Fourth and Fifth Respondents informed the court that he had no instructions on the matter. The appeal was consequently argued by way of oral submissions by Mr. Tombe, and Mr. Ndugu, counsel respectively for the Appellant, and for the First, Second and Third Respondents.

4. This being a first appeal this court's mandate is to reconsider and re-evaluate the evidence adduced by the witnesses before the trial court so as to arrive at an independent finding whether or not to uphold the judgment and orders of the trial court. That proposition has been restated in many cases in our Law Reports, but I will cite only one. In JABANE VS. OLENJA [1986] KLR 661,at p. 664, Hancox J.A. stated as follows:

“I accept this proposition, so far as it goes, and this court does have power examine and re-evaluate the evidence and findings of fact of the trial court in order to determine whether the conclusion reached on the evidence should stand – see (Peters vs. Sunday Post [1958] E.A. 424). More recently, this court has held that it will not likely differ from the findings of fact of a trial judge who had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi vs. Duncan Mwangi Wambugu (1982-88) 1 KAR, 278 and Mwana Sokoni vs. Kenya Bus Service (1982-88)1 KAR 870. ”

5. In the course of the oral submissions, counsel for the Appellant framed three issues for consideration by the court in determining whether or not to allow the appeal. These were -

whether the trial magistrate erred in her assessment of liability.

Whether the general damages awarded were excessive in the circumstances.

Whether the judgment of the trial court was reasonable in the circumstances.

I will consider each of these issues in turn.

6. 0 OF WHETHER THE TRIAL COURT ERRED IN THE ASSESSMENT OF LIABILITY

6. 01 The First Respondent (who was also the mother of the Second and Third Plaintiffs, who sued the Appellant through their mother as their next friend), testified that she was a fare paying passenger in motor vehicle registration Number KAB 631Y (commonly referred to and known as the “Explainer”), and was travelling from Eldoret to Nakuru.

6. 02 Her evidence was that she was seated at the back left seat with the two sons (KM and KC, then aged three and six years respectively, and were the second and third plaintiffs respectively). It was also her testimony that as the vehicle approached the junction of Eldama Ravine, she heard a loud bang which came from the front of the bus. The vehicle rolled and turned upside down on the left side of the road as one faces the direction of Nakuru from Eldoret (town).

6. 03 Against this evidence Jacob Leeder Aurpele (DW1) testified that he was on the material day, driving his motor registration Number KAC 299V along Nakuru- Eldoret Highway and that when he reached a place known as Mlango Moja he saw the First Respondent's vehicle coming from the opposite direction and about three hundred metres (300 mts) away. The said vehicle was negotiating a slight bend and was being driven on his (DW1) (left) lane as one faces Eldoret direction (from Nakuru). DW1 testified that the bus was being driven very fast and that as it approached, DW1 realized that it was not moving (away) from his lane. He therefore slowed down and swerved to his extreme left knocking down some of the railways(sheel guards) to avoid an head-on collusion.

6. 04 DW1 also testified that he had moved his vehicle so much off the road that the right wheel was on the white line and the front wheel was on the rails. It was his testimony that if he had moved further, his lorry would have overturned and rolled. The bus on the other hand hit the lorry on the right hand side and shattered the windscreen. The impact caused the lorry to move back to the tarmac while the bus moved ahead, lost control overturned and landed in a ditch. DW1 gave his speed at 60-70 KPH at the time, and that it was clear weather.

6. 05 DW2 (John Mwangi Kamuri) testified that he was on the material day working as a turnboy of the “Explainer” bus, and that the accident occurred at “Makutano” (junction) between Eldoret and Nakuru. He explained that the lorry was coming from the opposite direction and that it hit the bus on the rear on the driver's side. He testified that there was a sharp corner, and blamed the driver of the lorry for the accident. He himself was not injured during the accident.

7. 00 RE-EVALUATION OF THE EVIDENCE

7. 01 There was no denial that the accident, the subject matter of the appeal occurred. There was also no denial or dispute over the ownership of the motor-vehicles. The issue in contention is the circumstances surrounding the occurrence of the accident. In determining the circumstances surrounding an accident, same guidance may be found in Section 119 of the Evidence Act, (Cap. 80, Laws of Kenya). The Section says -

“S. 119. The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common cause of natural events, human conduct and public and private business their relation to the facts of the particular case.”

7. 02 In the case of RAPHAEL MWANIKI KIBOI VS. JOSEPH NJOGU KINYUA (Nairobi HCCC No. 3974 of 1988), the Court while applying the provisions of Section 119 noted that where two vehicles collide on a highway they do so in consequence of the negligence of either one or both of the drivers thereof. The question here is whether the accident occurred as a consequence of the negligence of one or both drivers. The learned trial magistrate found and held that the accident occurred as a consequence of the negligence of both drivers, and therefore apportioned liability on a 50:50 basis. With respect I do not agree. The reasons will be apparent from the subsequent paragraphs of this judgment.

7. 03 Firstlyfrom the evidence of the First Respondent, the accident occurred due to the negligence of the Second Defendant (the driver of motor-vehicle KAB 631Y). In her evidence in-chief, the First Respondent testified that she was sitting on the left side of the bus, and heard a loud bang at the front. She did not know at the time the cause of the loud bang. She testified that the window glasses broke and confusion reigned in the bus. It overturned and everyone was screaming in the bus. “I was confused after the accident”.

7. 04 Secondly in cross-examination, the First Respondent testified that -

“Our driver was driving very fast before the accident he was driving dangerously. I blame our driver.”

that the driver of the bus was - “driving very fast before the accident, he was driving dangerously, he was charged and convicted of the offence of causing death by dangerous driving.”

7. 05 To my mind therefore only the Second Defendant the driver of the bus, was solely to blame for the accident. He while negotiating the right bend on the road moved to the right lane, the correct side of the Appellant (the 3rd Defendant's lane) colliding or causing his bus to collide with the Appellant's lorry consequently nine (9) passengers lost their lives, and nineteen (19) others suffered serious injuries. As noted already the Second Defendant was convicted for the offence of careless driving and under Section 47A of the Evidence Act, the fact of that conviction in the absence of an appeal, is conclusive evidence of the Second Defendant's guilt.

7. 06 A traffic offence is a criminal offence, and like all such crimes, it had to be proved beyond reasonable doubt. The fact of that charge and conviction is admissible in evidence under Section 84 of the Evidence Act. It is not therefore proper to DW2 (a turnboy/tout) to come to a civil court and say that the driver of the lorry KAC 299 V (DAF) was to blame for the accident. His evidence is not credible, and I would agree with the submission of the Appellant's counsel that he was sent by his employer to come and protect the employer's interest. His evidence is scant, its not even clear that he was a passenger in the bus, and therefore was at the scene of the accident or indeed suffered any injuries from the accident. In the circumstances his evidence cannot be held to detract from the evidence of both the Respondent and the Appellant whose evidence corroborate and lay blame on the driver of the ill-fated bus KAB 631Y.

7. 07 Fourthly, it was the Appellant's evidence that he saw the ill-fated accident about 300 metres away coming dangerously towards him on his lane. He tried and took evasive action so as to avoid a head-on collision. Notwithstanding his best efforts, the driver of the ill-fated bus still struck and collided with the right side of his truck, and because of the terrific speed at which it was being driven, the driver thereof lost control of the bus, rolled several times and lay upside down when it eventually lost momentum. On the contrary the lorry which had been slowed down by the Appellant, remained at the point of impact. The Appellant's lorry cannot, on the evidence and the circumstances of the accident be said to have been driven without due care and attention or without reference to other road users. There was consequently not an iota of evidence for which it can be said that the Appellant contributed to the accident.

7. 08 This is one of those rare instances where a court must put it as it is, that the accident was wholly caused by the negligent driving of the second Defendant Dickson Ndichu Kimani, who was the employee of the First Defendant, who is therefore vicariously liable to the Respondents for the accident. To hold otherwise would equate the Appellant to a group of walkers crossing the road without first looking right and left, and right again before crossing the road and who would by sauntering in crossing the road, could be said to have contributed to an accident. No such comparison would be made with regard to the Appellant.

7. 09 The answer to the first issue (of whether the trial court erred in the assessment of liability) would be, yes, the trial court erred in finding the Appellant was liable at all, let alone equally with the driver of the ill fated bus.

7. 10 Having made this finding, it is not necessary to consider or answer the other two issues, whether the learned trial magistrate's judgment was reasonable, or whether the damages were reasonable.

8. 0 CONCLUSION

8. 01 For those reasons, the Appellant's appeal is allowed. The judgment and subsequent orders of the lower court are set aside.

8. 02 It is over ten (10) years since the accident occurred, the victims were aged three and six years of age. Their mother was of course an adult. They certainly suffered a lot of trauma from the accident in which they were lucky to come out alive and without life threatening injuries. I am not oblivious to the evidence that the Appellant too had his wife and two sons in his truck. They too suffered trauma, but luckily came out unhurt.

8. 03 For those reasons, I direct that each party bears the costs both in this court and the lower court.

It is so ordered.

Dated, signed and delivered at Nakuru this 7th day of November, 2013

M. J. ANYARA EMUKULE

JUDGE