[2018] KEHC 2829 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 29 OF 2016

KENYA PORTS AUTHORITY........................................................APPELLANT

VERSUS

1. RAPHAEL OBURE & TWO OTHERS

2. NORTHWOOD SECURITY SERVICES................................DEFENDANTS

J U D G M E N T

1. This is an appeal against the judgment of the trial court, Hon. Kimanga (RM) dated 2/2/2016 by which the court found and decreed:-

“Therefore the 1st defendant’s actions were as per the contract between the 1st and 2nd defendant’s. The action of the 1st defendant or its agents bound the 2nd defendants since there was no agreement of independent contractor produced in evidence to exclude the 2nd defendant. There was no evidence produced to show that indeed the 1st defendant was an independent contractor in legal sense...

Upon expiry of 29 days, they were found with no fault and they were released and given their tools back. It cannot be said thatsuch detention and bond terms were fair. It cannot either be saidthat the confiscation of tools for a whole 29 days was justified. It’s therefore nothing but an illegality. The plaintiffs lost use of the tools as well as they lost capacity to work and are entitled to thedamages they claim.

However the 1st defendant only arrested the plaintiffs but did not detain them. It’s the Police that detained the 2nd and 3rd plaintiffs. Damages related to such detention in the cells and injuries allegedly suffered by the 3rd plaintiff in detention can only be blamed on the Police and its necessary that in order to recover such damages, the Director of Public Prosecution needs to be enjoined as a defendant on behalf of the Police. It’s not the case herein and I find award of damages in the respect unavailable in the circumstances. The 1st and 2nd defendants acted unlawfully and without justification. They are not agents of the forest department and besides these was no offence committed by the plaintiff as against the forest department since arrest through the 29 days there was no complaint filed by the said office nor were the 1st, 2nd and 3rd plaintiff prosecuted by the said offices for any offence. Therefore the excuse of illegality has not been proved. Upshot, it was proved sufficiently that the power saw was on hire at a rate of 4,200/= per day and was detained for a total of 29 days. The 1st plaintiff showed that he had to pay a total of 121,800/= to the owner of the power saw.

The 2nd plaintiff was entitled to daily earnings of Kshs.1,400/= per day. For the 29 days he was reporting to the Police Station he lost a total of Kshs.40,600/=. The 3rd plaintiff used to be paid Kshs.600/= a day as per the payment vouchers for the 1st and 2nd days and for 29 days he lost Kshs.17,400/=. Besides the plaintiffs suffered general loss and damage as a result of the actions of the defendants and I proceed to award a sum Kshs.300,000/= General damages to the plaintiffs jointly. Total damages awarded therefore is Kshs.471,800/= plus costs and interests till payment in full. I accordingly find and award”. (emphasis provided)

2. Against that Judgment the Appellant raised some seven grounds in the Memorandum of Appeal filed on the 17/03/2018.

3. The grounds seeks of this court a determination of the following issues?

i. Was the 2nd Respondent an agent of or an independent contract or to the appellant?

ii. Did the suit comply with the provisions of Section 66 of Kenya Ports Authority Act?

iii. Did the plaintiffs plead and pray for special damages to be entitled to an award for same?

iv. Was the trial court entitled to make the award of Kshs.300,000. 00 in general damages?

v. Did trial court gave regard to the submissions offered?

Summary of pleadings at trial

4. By a plaint dated 16/12/2005 and amended on the 21/3/2007 the 1st Respondents sued the Appellant and 2nd Respondent and sought the recovery of special damages in the sum of Kshs.179,800/= general damages as well as costs on the basis of alleged arrest and detention of the 1st and 2nd plaintiffs for a whole day and detention of their tools of trade for a period of 29 days.

5. The special damages were particularized to be for the sum of Kshs.121,800/= paid to the owner of a power saw for the period of detention and Kshs.58,000/= being loss of earnings for the 2nd and 3rd plaintiffs for a period of 29 days during which they were unable to work due to the need to report to the police station on a daily basis.

6. General damages were sought by the 2nd & 3rd plaintiff on account ofdetention at the police station under hard conditions during which time they were allegedly severely beaten while the 1st plaintiff sought general damage for the temporary stoppage of his work.

7. When served, both defendants filed separate statement of defence. The 2nd respondent as the 1st defendant denied the alleged arrest by its officers, denied that the plot sued on belonged to the 1st plaintiff with a pleading that if ever the 2nd & 3rd plaintiffs were arrested they were so arrested on reasonable suspicion that they were committing offence of felling trees on a property of the 2nd defendant without the relevant permits. All the pleadings in the plaint were all denied including the alleged detention and beating even the service of demand before action was denied.

8. For the 2nd defendant (now Appellant) the defence filed denied ownership of plot no CR 34462 and license by the 2nd & 3rd plaintiffs tofell trees. On arrest of the 2nd & 3rd plaintiff, the Appellant pleaded that if any arrest took place it was without its express or implied instructions, it them denied all the pleadings at paragraphs 9 – 22 of the plaint and invited strict proof. The Appellant then invoked the provisions of Cap 391 which it alleged were contravened and reserved the right to raise a preliminary objection that the suit demonstrated no cause of action against it.

Summary of evidence lead at trial

9. The plaintiffs, the 1st & 3rd gave evidence while only the 2nd defendantpresented one witness to give evidence on his behalf. PW 1, 1stplaintiff, gave evidence to the effect that being the owner of plot no.1380 he had on the material day detailed 2nd & 3rd plaintiffs to clearthe land for development. They had a hired power saw from oneHamisi Kalumi at Kshs.6 per foot and for 700 feet he would pay 4200 per day. For the work he would pay the 2nd & 3rd plaintiffs Kshs.1,4000/= and 600 respectively. On the material day they were arrested for allegedly felling trees on the Appellants’ land and when he went to the Appellant he was referred to the 2nd Respondent who told him the people were arrested on the Appellants land for felling trees thereon. He produced payment vouchers and an invoice from the power saw owner. He denied that his people had trespassed onto the appellants’ land.

10. Upon cross examination, the witness said he had no occurrence book copies and no document that they reported at Nyali Police Station for 29 days. He denied being present at the time of arrest and reiterated that it was the 2nd respondent’s guards who effected the arrests. On the demand made to the Appellant the witness admitted that it did not demand any monetary compensation. When cross examined by the Appellants’ advocate, he denied knowledge of the plot said to belong to the Appellant and that his workers were never on that plot. He however admitted there being no evidence of detention of the power saw.

11. 2nd plaintiff gave evidence as PW 2 and said that on the 4/5/2005 whileworking for the 1st plaintiff as a construction foreman he was arrested by guards of the 2nd respondent and taken to Nyali police station in the vehicle belonging to the 2nd Respondent. The two, 2nd & 3rd plaintiff were held at the police station overnight and released the next day on a cash bail of Kshs.2000/= and directed to report daily to the station for another 29 days. He was to earn Kshs.600/= for days worked and said that having not worked for 29 days he lost that income. He produced demand letters to the two defendants and a reply from the defendants. In cross examination the witness said he was arrested by the 2nd respondents guards in the absence of anybody from the Appellants and that at the police cells he was assaulted by the inmates.

12. For the defence, one Peter Jambu from security department of theAppellant gave evidence on its behalf. He said he was the incharge of external security with the appellant whose duty was to inspect security firms contracted to provide security to the Appellants property. He produced documents to show that the title No. CR 18004/1 and CR 835/11 belong to the appellant. He said the 2nd respondent was contracted to guard the property and that before deployment they were shown the extent the boundaries of the land they were to guard. To him the plaintiffs plot was never adjacent to the Appellants plot and that neither him nor the Appellant were involved in the arrest. He said that no instructions were issued by the Appellant for arrest and that the Appellant was not aware where the 2nd and 3rd plaintiff were arrested.

13. On re-examination, the witness repeated having not been present at the time of arrest that the plaintiffs plot was not adjacent tothat of the Appellant and that the arrest was by the 2nd respondent.

Analysis and determination

14. This being a first appeal, the court proceeds by way of a retrial. It hasthe duty and mandate to re-appraise; re-examine and re-evaluate the entire evidence on record based on the pleadings and come to own conclusions. In undertakings that task I propose to deal with the isolated issue in a seriatim manner.

Relationship between appellant and 2nd Respondent – Agent or an independent contractor?

15. While it is true that there was no evidence adduced to prove the relationship between the Appellant and the 2nd Respondent, the law is that the burden rests on him who would lose if no evidence at all is led[1]. In this case, if the pleadings were filed and left to the court to make a determination without either side offering any evidence it, was the plaintiffs who would fail because it was the said plaintiffs who desired that a judgment be entered for them against the defendants from the complaints pleaded. It was therefore not open to the trial court to hold as it did that ‘the actions of the 1st defendant or their agents bound the 2nd defendant because there was no agreement of independent contractor produced in evidence to exclude the 2nd defendant’. In so holding, the trial court, with respect, laid the burden where it did not lie.

16. The court essentially misapprehended where the burden rested andthereby shifted it. I do find that if there was a contestation as to the relationship between the two, Appellant and 2nd Respondent, the duty was upon the plaintiff to prove what that relationship was. There was no obligation upon the defendant to prove anything unless to disprove what was provided by the plaintiff. The 1st respondents did not prove liability against the Appellant and it was wrong for the trial court to enter judgment against the Appellant. This finding would have been sufficient to despise the appeal but I am inclined to consider other grounds as well.

Was there compliance with Section 66 of Cap 319?

17. There was the letter dated 06/05/2005 and a response it to it dated 10/6/2018. The two letters show that there was a notice of intention to file suit duly served and acknowledged. The period between the date the letter of demand was issued, the date it was acknowledged and the 12/7/2005 when the plaint was lodge in court did in fact give to the Appellant a period of at least 30 days as the statute provides.

18. However to this court even if the such notice led not been issued and served, that alone would not be a basis to defeat the suit and claim.Mere failure to a notice in the context of the right to access to justice guaranteed under the constitution cannot be a basis to deny a litigant the right to be heard.

19. It is of note that the spirit of section 66 is the same enacted underSection 13A of the Government Proceedings Act which has been held to be no bar to the right to access justice.

20. Majanja J, had this to say of Section 13A Government Proceedings Act:-

“viewed against the prism of the constitution, it also becomes evident that Section 13A of Government Proceedings Act provides an impediment to access to justice”.

21. Being of the view and opinion that the intendment and purpose of thatprovision and Section 66 Cap 391 are the same, I have no hesitation on holding that even if the plaintiff had not served a notice, that by itself would not have been enough to defeat their suit against the Appellant and the 2nd Respondent. This ground lacks merit as is dismissed.

Special damages

22. In the amended plaint, there is a specific pleading at paragraph 8 a, b& c and prayer 1 which specifically sought the recovery of the sum of Kshs.179,800/=. It thus cannot be candidly and honestly be said that no special damages had been sought as the law demands. Maybe it would be different had there been a challenge on the proof of such special damages. However in its appeal, there is no challenge based on lack of proof. But even if there had been such a challenge, the evidence by PW 1 & PW 2 were to this court adequate, on a balance of probabilities, that the 1st plaintiff had employed the 2nd & 3rd plaintiffs on a daily rate of 1,400/= and 600/= respectively, it was equally proved and not sufficiently controverted that for some 29 days they were required to report to the police station and did infact so report. This ground of appeal would equally fails for lack of merit.

General damages

23. That the 2nd & 3rd plaintiffs were arrested on the 4/5/2005 on the suspicion of having trespassed upon the appellant’s property and handed over to the police at Nyali Police Station where they spent one night is not in dispute. It was equally not in dispute that at the police station they were granted cash bail of Kshs.2000/= each and ordered to report there on a daily basis for some 29 days. The question the trial court was bound to pose and answer and which he did not answer is whether there was reasonable suspicion by the 2nd respondent’s guards that there had been trespass and felling of trees without requisite permits. Throughout the record of proceedings at trial, the fact that there was felling of trees was not denied but was common place.

24. However there was no attempt to assert that there was permit for suchfelling instead the 1st plaintiff was content to say that the trees belonged to the said plaintiff and not Kenya Forest Services. Such an attempt would have gone a long way to show that the decision to arrest had no probable or reasonable suspicion but otherwise accentuated by ill will or malice. It is not enough to assert that the trees did not belong to Kenya Forest Services. The law within local authorities then, was that a permit was required to fell any tree indigenous or exotic, planted on naturally occurring. Additionally it is a duty of every Kenyan to take steps to prevent commission of criminal acts[2]. The guards of the 2nd respondent were within the law to effect arrest if there was reasonable suspicion.

General damages

25. The trial court having held that the arrest was by the 1st and that the detention was by police who were not sued, it is difficult to understand what the damages of Kshs.300,000/= was on account of. Worse still how could there be a joint judgment for all the plaintiffs. That award was wholly erroneous.

26. However there was never any iota of evidence to connect the Appellant and the arrest. This was a case where there was never an allegation of joint wrong between the two defendants. There was also no evidence of joint tort between them. It was therefore a case where even if liability had been proved, the court was expected to enter a several and not joint judgment. I have found that there was no liability proved against the Appellant of the wrongs pleaded hence there was no basis to enter any judgment against the appellant.

27. That being the case and my other finding on other two grounds of appeal notwithstanding, the judgment entered against the Appellanthad no basis in law and it is hereby set aside and in its place substituted a judgment that the plaintiffs suit against the Appellant, as second defendant at trial is dismissed with costs.

28. I award to the Appellant the costs of this appeal.

Dated and delivered at Mombasa this 12th day of October 2018.

P.J.O. OTIENO

JUDGE

[1] Section 108, Evidence provides:

[2] Section 392 Penal Code