[2022] KEHC 10531 (KLR)

Kivuva v Avenue Service Station (1977) Limited & another (Civil Appeal 85 of 2016) [2022] KEHC 10531 (KLR) (Civ) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10531 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 85 of 2016

JK Sergon, J

June 17, 2022

Between

Harrison Muia Kivuva

Appellant

and

Avenue Service Station (1977) Limited

1st Respondent

Denis Moseti

2nd Respondent

(Being an appeal against the judgment and decree delivered by D.W. Mburu (Mr.) (Principal Magistrate) on 1st February, 2016 in Milimani CMCC no. 1562 of 2014)

Judgment

1. The appellant in this instance filed a suit against the 1st and 2nd respondents by way of the plaint dated 24th March, 2014 and sought for both general and special damages plus costs of the suit and interest thereon, arising out of a road traffic accident.

2. The appellant pleaded in his plaint that sometime on or about the 6th day of December, 2013 while he was lawfully riding the motorcycle registration number KMCL 549L (“the motorcycle”) along Kileleshwa Bypass in Nairobi the 2nd respondent carelessly and negligently drove the motor vehicle registration number KBD 702G (“the subject motor vehicle”) and knocked him down, causing him to sustain serious injuries which were particularized in the plaint, as were the particulars of negligence.

3. The 1st respondent was sued in its capacity as the registered owner of the subject motor vehicle.

4. Upon service of summons and entering appearance, the respondents filed their statement of defence on 7th May, 2014 to deny the allegations set out in the plaint.

5. At the hearing of the suit, the appellant and the 2ndrespondent testified respectively.

6. Upon close of submissions, the trial court delivered judgment on 1st February, 2016 where it apportioned liability between the appellant and the 2nd respondent in the ratio of 50%:50% and awarded damages as follows:a.General damages for pain, suffering and loss of amenities Kshs.500,000/=b.Special damages Kshs.10,090/=Gross Total Kshs.510,090/=(Less 50%) Kshs.255,045/=

7. The trial court also found the 1st respondent vicariously liable for the negligence of the 2nd respondent.

8. The aforementioned judgment is now the subject of the appeal before this court. To challenge the judgment, the appellant has put forward the following grounds of appeal vide his memorandum of appeal dated 1st March, 2016 and filed on like date:i.Thatthe learned trial magistrate misdirected himself on the evidence and applicable law.ii.Thatthe learned trial magistrate made inference of fact and arrived at conclusions therein not manifest from pertinent facts in evidence.iii.Thatthe learned trial magistrate erred in apportioning equal liability in negligence without any basis whereas the plaintiff’s evidence was overwhelming and uncontroverted by the defence.iv.Thatthe learned trial magistrate erred in apportioning equal liability despite the plaintiff having proved his case on a balance of probability.v.Thatthe learned trial magistrate erred in not taking into account the submissions filed by the plaintiff/appellant.vi.Thatthe learned trial magistrate erred in not taking into account the glaring inconsistencies in the defendants’ evidence.vii.Thatthe learned trial magistrate erred in failing to apportion 100% blame on the defendant who was wholly to blame for the accident.viii.That the learned trial magistrate erred in law and in fact in the way he interpreted the evidence produced in court.ix.Thatthe learned trial magistrate erred in not taking into account the cited authorities in the submissions filed by the plaintiff.

9. At the directions of this court, the parties were to file and exchange written submissions on the appeal. At the time of writing this judgment, this court notes that only the submissions by the appellant were accessible on the portal. This court does not have the submissions by the respondents.

10. The appellant vide his brief submissions argues that the evidence presented by the 2nd respondent at the trial was marred with inconsistencies and hence the trial court ought to have found him solely liable.

11. The appellant further argues that the trial court committed a grave injustice in apportioning liability between him and the 2nd respondent, whereas there is nothing to point to negligence on the part of the appellant.

12. Consequently, the appellant urges this court to interfere with the finding on liability and to substitute it with a finding of 100% liability on the part of the respondents herein.

13. I have considered the written submissions on record in respect to the appeal. I have also re-evaluated the evidence tendered before the trial court for consideration.

14. It is clear that the appeal lies principally against the finding on liability. I therefore deem it appropriate to address the nine (9) grounds of appeal contemporaneously under that head.

15. On the one part, the appellant in his oral testimony stated that on the material date, at about 2. 40 p.m. he was riding the motorcycle on the left lane and on his way to Kawangware and had just passed Shell Petrol Station in Kileleshwa area when the subject motor vehicle being drive by the 2nd respondent and coming from the opposite side of the road at a high speed started to overtake another vehicle.

16. The appellant stated that the subject motor vehicle thereforeentered his lane and hit the motorcycle in the middle of the right side, at a junction on the main road.

17. It was also the testimony of the appellant that the subject motor vehicle did not give way and that there was nothing he could have done to avoid the accident.

18. In cross-examination, the appellant testified that there was no traffic jam at the time of the accident, further stating in re-examination that the motor vehicle which was being overtaken on the material date did not hit him, and that the subject motor vehicle had been diverting to drop children from school when the accident occurred.

19. The 2nd respondent on the other part gave evidence that he has been a driver for over 10 years and that on the material date, he was on his way to drop children at an estate and that upon indicating his intention to turn right, the motorcycle suddenly came from the left side and hit the subject motor vehicle.

20. The 2nd respondent gave evidence that he was not speeding at the time and that it is the motorcycle being ridden by the appellant which overtook on the wrong side and failed to give way.

21. In cross-examination, it was the testimony of the 2nd respondent that just before the accident occurred, another motor vehicle had given way for him to enter into the right turn when the motorcycle abruptly appeared from the left side of the road.

22. In re-examination, the 2nd respondent stated that the motorcycle had been overtaking the subject motor vehicle from the wrong side and that he has never been charged with a criminal offence in relation to the accident.

23. In his judgment, the learned trial magistrate reasoned that none of the parties called any independent witnesses to corroborate their versions of the events that took place on the material date and that the police abstract did not indicate who was to blame for the accident. As a result, the learned trial magistrate found it just to apportion equal liability between the parties as he did.

24. Upon my re-examination of the evidence tendered before the trial court, I observed that the same confirms the occurrence of the accident on the date earlier referenced.

25. It is not controverted that the accident involved the motorcycle being ridden by the appellant and the subject motor vehicle being driven by the 2nd respondent.

26. On the question of liability, upon my study of the policeabstract, I note that the matter was still pending under investigation and there is nothing to indicate whether such investigations were concluded. The police abstract also did not indicate who was to blame for the material accident.

27. Upon my re-examination of the evidence, it is also noteworthythat none of the parties called the investigating officer to shed light on the circumstances surrounding the accident.

28. Similarly, I observed; as the learned trial magistrate did; thatVnone of the parties called any independent witnesses to corroborate their evidence as to the occurrence of the accident, which only left the court to consider the appellant’s word against that of the 2nd respondent.

29. Going by the evidence, it is apparent that the appellant and the 2nd respondent each provided varying accounts of the events leading up to the accident, none of which could be verified for the reasons I have set out hereinabove.

30. Consequently, I agree with the reasoning by the learned trial magistrate that it was difficult to ascertain who between the two(2)drivers herein caused the accident in question.

31. In view of the foregoing circumstances, I am satisfied that the learned trial magistrate acted correctly in apportioning blame equally between the appellant and the 2nd respondent. In so finding, I am supported by the recent case of Calistus Juma Makhanu v Mumias Sugar Co. Ltd & another [2021] eKLR where the court reasoned that:“In the case of Lakhamshi vs Attorney General, (1971) EA 118, 120 Spry VP observed as follows;-“It is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents, it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.”

32. On the issue of consideration of the submissions and authorities cited by the appellant, upon my perusal of the record and the impugned judgment, I did not come across anything to indicate that the learned trial magistrate overlooked or otherwise ignored the submissions and/or authorities relied upon by the appellant.

33. For all the foregoing reasons, I therefore see no reason tointerfere with the decision arrived at by the learned trialmagistrate.

34. The upshot therefore is that the appeal is hereby dismissed for lack of merit.

35. In the circumstances of this appeal, I find it fair and reasonable to order which I hereby do that the parties bear their own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ............................J. K. SERGONJUDGEIn the presence of:…………………………… for the Appellant…………………………… for the 1st and 2nd Respondents