[2023] KEHC 27218 (KLR)

Kiplagat v Panel Freighters Company Limited & another (Civil Appeal 15 of 2021) [2023] KEHC 27218 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27218 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Civil Appeal 15 of 2021

JR Karanja, J

December 14, 2023

Between

Hillary Kiplagat

Appellant

and

Panel Freighters Company Limited

1st Respondent

Onesmus Mkonye

2nd Respondent

Judgment

1. The appeal arises from the judgment of the Resident Magistrate delivered on October 24, 2018 in Kapsabet PMCC NO. 23 of 2016 in which the Appellant as the Plaintiff sued the two Respondents as the first and second Defendants respectively for damages arising from a road traffic accident which occurred on the January 30, 2016 along the Namgoi – Kapsabet Road involving a Motor Cycle Registration No. KMDS 126S for which the Appellant/ Plaintiff was the rider and a motor vehicle Registration No. KCB 490U pulling a trailer No. ZC 0298 belonging to the first Respondent/ Defendant and driven at the time by the second Respondent/ Defendant as its authorized driver.

2. It was pleaded that the second Respondent so recklessly, carelessly and/or negligently drove the said motor vehicle such that it went out of control and veered off the road thereby violently ramming into the motor cycle and causing sever bodily injuries to the Appellant.Both Respondents in their joint statement of defence denied the allegations made against them and contended that if the accident indeed occurred, then it was wholly caused and or substantially contributed to by the negligence of the Plaintiff in the manner of riding his motor cycle.

3. At the trial, evidence was received from the Appellant Hillary Kiplagat (PW1) and his witness, CPL Miriam Maratima (PW2), a police officer who investigated the accident and concluded that the second Respondent was to blame for the accident.In his defence, the second Respondent Onesmus Mkenye (DW1), contended that he was not to blame for the accident but rather the rider of the motor cycle who was behind his motor vehicle/ trailer carrying two pillion passengers when he hit the motor vehicle from the rear.

4. After considering the evidence in its totality, the trial court concluded that the Appellant/ Plaintiff rather than the Respondents/ Defendants was to blame for the occurrence of the accident. In so concluding, the trial court rendered itself as follows: -“Unless the Contrary is proved it is not possible to conclude that the trailer is the one which hit the rider while overtaking yet the rider was behind the trailer. The Plaintiff agreed that they fell off the road on the left side of the road. This rider had no driving license and it is highly reasonable and most probable that he was not properly trained nor competent to ride and control the motor cycle on the busy road. Furthermore he was carrying two pillion passengers instead of one who had no helmet. The lack of driving license and the ferrying of one excess pillion passenger could have caused the rider to lose control and ram into the trailer from behind and fell off on the left side of the road. All the above sufficiently show that the Plaintiff who was the rider is most likely to blame for the accident and or in the alterative the Plaintiff has not proved to the standard required that the 2nd Defendant is the sole or major cause of the accident so that the 1st Defendant to be vicariously liable as the beneficial or legal owner of the trailer.”

5. The trial court found that the Plaintiff failed to discharge his burden of proof against the Respondents, and dismissed his claim. And, in the event that the Plaintiff had discharged his burden of proof, then the trial court opined that an award of Kshs. 500,000/- general damages would have sufficed as adequate compensation together with special damages in the sum of Kshs. 3,000/-

6. However, being dissatisfied with the trial courts conclusion appellant preferred the present appeal on the basis of the grounds set out in the memorandum of appeal filed herein on November 5, 2018 largely touching on the question of liability as between the Appellant and the Second Respondent.After several mentions for directions in which this Respondents did not appear despite being served as per the affidavits of service on record the court finally gave direction on the June 14, 2023 fixing the appeal for hearing with the parties having the liberty to file written submissions.

7. As at the last hearing date on December 6, 2023, the Respondents had neither filed their submissions nor appeared in court to argue the appeal orally. The submissions by the appellant were effectively filed on 11th October 2023 by Alwanga & Company Advocates for whom this Learned Counsel, M/s. Chepkwony, appeared on the hearing date.Having considered the grounds of appeal in the light of the appellant’s submissions, the duty of this court was to revisit the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses.

8. In that regard, this court considered the evidence adduced by the Appellant’s two witnesses including himself (i.e. PW1 and PW2) and the Defendants one witness (DW1) who was the second Respondent/ Defendant.On liability, this court finds itself in agreement with the trial court that the culpable party was more the Plaintiff rather than the second Defendant.

9. The Plaintiff, who shouldered the burden of proving on a standard of probability that it was the second Respondent who was to blame for the accident, did not prefer a satisfactory and credible explanation of how he was knocked down by the second Respondent/Defendant motor vehicle pulling a trailer while he was riding on its rear and carrying two pillion passengers. Most likely than not, he was knocked down by the trailer after it was in the first instance hit by his motor cycle which he rode without protective gear nor a driving license.

10. On the contrary, the evidence by the second Respondent was cogent and credible enough in showing that he was not to blame for the accident but the Appellant.The investigations carried out by the police through CPL Miriam (PW2) and her colleague PC Yator were clearly inconclusive in determining the culpable party as between the Plaintiff/Appellant and the second Respondent/ Defendant.

11. In the circumstances, the evidence by CPL. Miriam (PW2) could not and did not add any value to the Appellant’s case. The trial court did not either in law or fact err by dismissing the Appellant’s case with costs to the Respondents.Considering the injuries suffered by the Plaintiff as a result of the accident and if he had proved liability against the second Respondent the award of Kshs. 500,000/- opined by the trial court would have been reasonable and sufficient compensation in terms of general damages for pain suffering and loss of amenities.

12. Otherwise, this appeal is lacking on merit and is hereby dismissed with costs to the Respondents.Ordered accordingly.

DELIVERED AND DATED THIS 14TH DAY OF DECEMBER, 2023J. R. KARANJAH,JUDGE