[2023] KEHC 27021 (KLR)

Koech & another v Mutai (Suing as legal representative of the Estate of the Late Joseph Kipngetich Mutai) (Civil Appeal 18 of 2019) [2023] KEHC 27021 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27021 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 18 of 2019

JK Sergon, J

December 13, 2023

Between

Sammy Cheruiyot Koech

1st Appellant

Wesley Kibet

2nd Appellant

and

Annah Chepkemoi Mutai (Suing as legal representative of the Estate of the Late Joseph Kipngetich Mutai)

Respondent

Judgment

1. The background of this Appeal is short and straightforward. On 5th September, 2006, Joseph Kipngetich Mutai, deceased was fatally injured in a road traffic accident involving Motor Vehicle Registration No. KAS 496 V make Isuzu Tipper along Sondu-Kapsoit Road.

2. Annah Chepkemoi Mutai, the Respondent herein and Administratrix of the Estate of Joseph Kipngetich Mutai, deceased, filed a Compensatory Suit before the Chief Magistrate’s Court, Kericho against Sammy Cheruiyot Koech, the registered owner of the aforesaid Lorry, and 1st Appellant herein and against Wesley Kibet, the driver and the 2nd Appellant herein.

3. Hon. S. M. Mokua, Learned Chief Magistrate heard the suit and in the end, he entered Judgment in favour of the Respondent and against the Appellants. The Learned Chief awarded the Respondent a total sum of Kshs.725,000/= representing both special and general damages.

4. Being aggrieved, the appellants preferred this Appeal and put forward the following grounds of appeal:-(i)That the Honourable Trial Magistrate misdirected himself and erred in law and in fact in holding the Appellants 100% liable for the occurrence of the accident against the weight of evidence adduced in defence by the Applicants.(ii)That the Honourable Trial Magistrate erred in Law and in fact in holding that the Respondent had proved her case on a balance of probabilities without taking into consideration that the evidence adduced by the Respondent was contrary and/or in variance with the pleadings.(iii)That the Honourable Trial Magistrate misdirected himself and erred in Law and in fact in failing to apply the relevant principles in determining the issue of liability.

5. It is important at this stage to examine the case that was before the trial court. When the suit came up for hearing, the Plaintiff (Respondent) testified without summoning any other witness while the Defendants (Appellants) summoned three witnesses who testified in support of their defence..

6. The Plaintiff (Respondent Namely: Annah Chepkemoi Mutai (PW.1) adopted her Written Witness Statement as her evidence in Chief. She stated before the trial court that got married to the Late Joseph Kipngetich Mutai under the Kipsigis customary Law and rites.

7. PW.1 told the Trial Court that her husband was involved in a Fatal Road Traffic Accident on 5th September, 2006 along Sondu-Kapsoit Road while he was a fare paying passenger aboard Motor Vehicle Registration No. KAS 496 V, Isuzu Tipper. She averred that the aforesaid Tipper owned by Sammy Cheruiyot Koech, the 1st Appellant, was carelessly and negligently managed and controlled by Wesley Kibet, the 2nd Appellant.

8. PW.1 further stated in her Oral Evidence that the deceased was ran over by the Tipper and died instantly. She however admitted that she was not at the scene of the Accident, hence she did not witness the Accident. PW.1 also stated that the deceased was an employee of the 1st Appellant. In her evidence given in Cross-Examination, the Respondent (PW.1) stated that she was unable to blame either1st nor the 2nd Appellant for the Accident.

9. I have already pointed out that the Defence (Appellants’) case was supported by the evidence of 3 witnesses. Wesley Kibet (DW.1) adopted his written witness statement as his evidence in Chief. D.W.1 said that on 5th September, 2006, he drove the Tipper Registration No. KAS 496 V to Sondu to collect sand from a place known as Pap-Onditi. D.W.1 said he drove back upto Sigowet-Sosiot Junction where he stopped to wait for his colleague Bernard Bett (DW.2).

10. DW.1 said that when Bernard arrived, he drove ahead of him and that as he progressed in the journey he received a phone call from DW.2 to inform him that he had seen someone falling off the Tipper he was driving. DW.1 said he was surprised to learn that because he had not allowed anyone to board his tipper and/that he did not understand how someone got into the Tipper at the back yet he had sufficient space to sit at the front Cabin.

11. DW.1 said that indeed he stopped to check what had happened and saw unknown male person lying on the ground. He said he was forced to leave the flew scene when he realized that a crowd had gathered and tension was building up. He said he booked a report over the incident at Litein Police Station. He said he noticed there was a crutch belonging to the deceased inside the Tipper when offloading the sand which he handed over to the Police. DW.1 said that he reached out to the deceased’s family and held successful negotiations after which certain Kipsigis Traditional rituals were conducted to appease the dead.

12. DW.1 further stated that the plaintiff (Respondent) received 9 heads of cattle as compensation in full settlement of the claim arising out of the accident. He said that he was surprised to learn that the Plaintiff (Respondent) instituted the present suit claiming damages after the matter had been settled out of Court. DW. 1 stated that the accident occurred as a result of actions and or omissions on the part of the deceased. He averred that he did not allow the deceased to board the Tipper as a passenger.

13. In Cross-Examination, DW.1 stated that he paid 9 Cows to the deceased’s family after expressing remorse. DW.1 in his evidence in Cross-Examination and in Re-Examination was categorical that he did not allow the deceased to board the Tipper. DW.1 said that according to Kipsigis Custom, he had to be remorseful to the decease’s family because the deceased fell off from a Tipper he was driving and died.

14. Bernard Kiprotich Bett (DW.2) also adopted the contents of his written witness statement as his evidence in Chief. DW.2 said that on 5th September, 2006, he drove right behind DW.1 along Sigowet-Sosiot Road and as they approached a Safaricom Mask, he noticed there were two people on board the truck DW.1 was driving. DW.2 said after a short while one of them fell off the tipper and he immediately called DW.1 to inform him that someone at the back of the truck he was driving had fallen. He said DW. 1 stopped and he accompanied him to where the person who had fallen was lying and discovered that he had died.

15. DW.2 also stated that the families of the deceased and DW.1 begun negotiations which gave rise to the performance of certain rituals according to the Kipsigis customs to appease the dead.

16. It is the evidence of DW.2 that DW.1 with his family and Clan Members paid the Plaintiff (Respondent) 9 heads of cattle as compensation in full settlement of the claim arising out of the accident. DW.2 said that the Area Chief and close family relatives and Clan Members who took part in the negotiations were all present when the rituals and payments were being made. DW.2 said he is surprised to learn that the Respondent had filed a suit yet the matter had been settled out of Court.

17. In Cross-Examination, DW.2 confirmed that he saw two people atop the sand and that before getting to the climbing lane, DW.2 said he saw one of them fall off. DW.2 said that the deceased was to blame for the accident. DW.2 said he knew the deceased and that he visited his home after the accident.

18. Benson Kiptoo Bor (DW.3) also testified before the Trial Court in support of the Defence (Appellant’s) Case. He stated that he is the Senior Chief of Iraa Location within Sigowet Division of Kericho County. DW.3 said that the Plaintiff (Respondent) is known to him and that she hails from his area of jurisdiction. DW.3 said that after the funeral of the deceased, both the family of the 2nd Defendant (2nd Appellant) and that of the deceased with their Clan Members begun negotiations to settle the matter out of Court.

19. DW.3 said he played a big role in the aforesaid negotiations. DW.3 stated that according to the Kipsigis Customary Practice and Traditions, whenever life is lost, the family and clan members concerned are required to pay compensation so as to avoid a curse.

20. DW.3 further stated that after negotiations were successfully finalized, the agreed compensation was duly paid by the Defendants in full settlement of the claim. He stated that he was equally surprised to learn that the Plaintiff has filed the claim herein despite having accepted and acknowledged payment from the Defendants (Appellants) in full settlement of the claim.

21. DW.3 further averred that while testifying in Cross-Examination, the families of the deceased and Defendants (Appellants) agreed to settle the matter out of Court and that he sat and chaired the meeting. DW.3 further stated that the Appellants’ family agreed to pay and the matter was marked as settled. At the conclusion of the evidence, parties filed written submissions.

22. After considering the evidence and submissions from both sides, Hon. S. M. Mokua, the Learned Chief Magistrate entered Judgment in favour of the Plaintiff (Respondent) and against the defendants (Appellants. The Learned Chief Magistrate expressed himself on liability as follows:-“The Defendants contested that there was no evidence regarding the accident. The reason thereof was that the Plaintiff failed to call an eye witness. Contrary to that the Defendant called a witness who stated that the deceased fell off from the moving Vehicle.I have no doubt that an accident occurred. The Plaintiff’s side indicated that the deceased was run over. The Defendant’s witness indicated that the deceased fell from the vehicle which was being driven by the 2nd Defendant. Based on the pleadings, I find the Defendants 100% liable.”

23. Having outlined the case that was before the Chief Magistrate’s Court, I now turn my attention to this appeal. A careful consideration of the grounds of Appeal put forward by the Appellants will reveal that the Appellants are basically challenging the decision on liability.

24. In the first ground, the Appellants are arguing that the Trial Court erred when it held the appellants 100% liable for the accident against the weight of evidence adduced in defence.

25. In the 2nd ground of Appeal, the Appellants argued that the Learned Chief Magistrate erred when he held that the Respondent had proved her case on a balance of probabilities without taking into consideration that the evidence adduced by the Respondent was contrary and or at variance with the Pleadings.

26. In the 3rd ground, the Appellants accused the Trial Court of failing to apply the relevant principles in determining liability.

27. On the first ground, it is the submission of Miss Koech, Learned Advocate for the Appellants that the Learned Chief Magistrate was plainly wrong in finding the Appellants wholly liable. The Learned Advocate argued that there was no sufficient evidence to justify holding the Appellants 100% liable. She pointed out that the Respondent had in her testimony stated that she did not know whom to blame for the accident.

28. It is the submission of Mr. Kirui, Learned Advocate for the Respondent that DW.2 saw the deceased fall off the truck which was being driven by DW.1. According to Mr. Kirui, the Learned Chief Magistrate did not err when he found the 2nd Appellant 100% liable.

29. It is not in dispute that the Learned Chief Magistrate found the 2nd Appellant wholly liable for the accident.

30. Under Section 107 of the Evidence Act, the burden of proof lies on whoever desire any Court to give Judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove those facts exist. If a person is bound to prove the existence of any fact, the burden of proof lies on that person.

31. In the case before the Trial Court, the Plaintiff (Respondent) pleaded the particulars of negligence on the part of the 2nd Defendant (2nd Appellant) as follows:-(a)Driving at a speed that was far too excessive given the circumstances.(b)Driving without due care and attention to other road users.(c)Failing to keep any or any proper lookout(d)Failing to keep and maintain any affective control of Motor Vehicle Registration Number KAS 496 V Isuzu Tipper.(e)Failing to brake, swerve, steer or in any other way control Motor Vehicle Registration Number KAS 496 V, Isuzu Tipper.(f)Failing to hoot, flash, wave or in any way give warning to his approach.(g)Driving into the wrong path of other Motor Vehicles.(h)Driving a defective Motor Vehicle Registration Mark KAS 496 V Isuzu Tipper.(i)Permitting the Motor Vehicle Registration No. KAS 496 V Isuzu Tipper to hit the deceased.

32. When the Respondent testified, she simply stated that she did not witness the accident and that she was unable to apportion blame on any of the Defendants (Appellants). It is difficult to comprehend how the Learned Chief Magistrate found the Appellants 100% liable yet the Respondent did not discharge the burden of proof. It would appear the Learned Chief Magistrate relied on the evidence of DW.2 who merely stated that he saw the deceased fall off the truck the 2nd Appellant was driving.

33. The fact that the deceased fell off the Tipper the 2nd Appellant was driving does not in itself establish the particulars of negligence on the part of the 2nd Appellant. The Respondent did not tender any credible evidence to prove the particulars of negligence she pleaded in her Plaint. The evidence tendered by DW.2 cannot be used to establish liability on the part of the appellants. The Respondent was emphatic that she was not in a position to blame any of the appellants for the accident.

34. The Respondent was bound to establish that the deceased fell off the tipper driven by the 2nd Appellant due to the negligence and recklessness of the 2nd Appellant. With respect, I am persuaded by the Appellants submissions that the Learned Chief Magistrate erred in finding the Appellants 100% liable for the accident. It is also curious to note that the Learned Chief Magistrate found the Appellants 100% liable based on the pleadings instead of relying on the evidence presented before him to establish liability as required by law. It is obvious the Learned Chief Magistrate fell into error.

35. As regards the 2nd ground of Appeal, it is the submissions of the Appellants that the Respondent had failed to prove her case on a balance of probability. The Appellants averred that the Respondent failed to establish the assertion that the deceased was an employee of the 1st Appellant receiving payment of Kshs.500/= per day. It is argued that the Appellants were able to show that the deceased fell off from the moving Tipper which was not a PSV Motor Vehicle as alleged in the Plaint. It is the submission of the Respondent that the Respondent’s evidence was corroborated by the evidence of DW.2 who witnessed the Accident.

36. I have analyzed the rival submissions and the evidence. The truth of the matter is that the Respondent tendered evidence which did not established the particulars of negligence stated in the Plaint. The evidence of DW.2 basically indicated that the deceased fell off the Tipper driven by the 2nd Appellant. That piece of evidence did not attach any liability on the part of the 2nd Appellant. It was therefore erroneous to hold that the evidence of the Respondent was corroborated by the evidence of DW.2. It is apparent that the accident occurred but there is no cogent evidence proving liability on the 2nd Appellant

37. In respect of the 3rd and final grounds of appeal, the Appellants are of the submission that the Trial Chief Magistrate failed to apply the relevant principles in determining liability. The Respondent on the other hand is of the submission that the Learned Chief Magistrate applied the relevant principles in determining liability.

38. Having considered the rival submissions, I am persuaded by the Appellants submissions that the Trial Chief Magistrate erred by failing to apply the relevant principles in determining liability in this matter. In the case of Kiema Mutuku -vs- Kenya Cargo Hauling Services Ltd 1991, It was held inter alia“there is as yet no liability without fault in the legal system in Kenya, and a Plaintiff must prove some negligence against the defendant where the claim is based on negligence”It is important to outline the principles required to prove liability.

39. In paragraph 6 of her Plaint, the Respondent stated that in the alternative that she will be relying on the doctrine of res ipsa loquitur. The parties did not address the Court below and the Appellate Court on this doctrine. The Learned Chief Magistrate did not also state in his Judgment that liability was founded on the doctrine of res ipsa loquitur which means “The thing speaks for itself”

40. In Blacks Law Dictionary, 11th Edition, it is stated:-“The doctrine providing that in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence that establishes a prima facie case, the doctrine whereby when something that has caused injury or damage is shown to be under the management of the party charged with negligence and the accident is such that in the ordinary cause of things, it would not happen if those who have the management use proper care, the very occurrence of the accident affords reasonable evidence in the absence of the explanation by the parties charged that it arose from the want of proper care.”

41. Even if the doctrine was to be applied to this case it would not have let to a finding that the Appellants were wholly liable. There was credible evidence showing that the 2nd Appellant had not permitted the deceased to board the truck he was driving neither was he aware that the deceased was on board the Tipper. There was also no evidence that the truck was driven carelessly nor was it negligently managed.

42. During the hearing of the case before the Chief Magistrate’s Court, the Appellants presented evidence indicating that the Respondent and the Appellants chose to settle the matter through the Alternative Justice System using the Kipsigis Customary Law and Practice. It is the evidence of Wesley Kibet Soi (DW.1) that since the deceased died after falling off the lorry he was driving, he was obliged to approach the deceased’s family to express his remorsefulness and seek for cleansing under the Kipsigis Customary Law to avoid a curse being visited upon him and the family. The Respondent did not controvert the assertion that the 2nd Appellant approached the deceased’s family for reconciliation and compensation. While testifying under Cross-Examination by the Respondent’s Advocate, DW.1 stated that he paid 9 Cows as compensation to the deceased’s family. The 2nd Appellant’s evidence regarding the Application of Kipsigis Customary Law in this matter was corroborated by the evidence tendered by Benson Kiptoo Bor (DW.3) the Area Senior Chief, Iraa Location who told the Trial Court that he presided over a meeting between the deceased’s family and that of the Appellants where the families agreed to settle the matter out of court. D.W.3 said that the Appellants’ family agreed to pay a sum of Kshs.60,000/= plus a Cow. He said that the matter was marked as settled upon payments being made in form of a Cow and Cash. DW.3 further stated the parties agreed not to file a case in Court and that is why he is surprised to learn of the filing of the case.

43. It would appear the parties consensually and voluntarily submitted themselves to the Kipsigis Customary way of dispute resolution. The Respondent did not deny that the deceased’s family negotiated with the Appellants’ family to settle the matter out of Court. The Respondent did not also deny that the deceased’s family received some form of compensation for the deceased’s death. It is clear from the evidence of DW.1 and DW.3 that the Kipsigis Customary Law was more concerned with the fact that the deceased died after falling off from a truck the 2nd Appellant was driving. The question of liability appears was not an issue of concern to the custom.

44. The appellants appear to suggest that the Respondent should not have filed the suit because the dispute had been settled through the Kipsigis Customary Law.

45. The Learned Chief Magistrate did not address his mind to the issue. The issue was never pleaded in the pleadings but the same arose from the evidence. It is apparent that the parties intended to have it determined despite it being unpleaded. The parties to this appeal did not also submit over the issue of settlement of the matter through the Alternative Justice System (AJS) mechanism under the Kipsigis customary Law.

46. Under Article 159 (2) c, the Judiciary is mandated to promote Traditional Methods of dispute resolution mechanism. There is no dispute that the parties to this Appeal underwent the Kipsigis Traditional Customary Law of reconciliation and compensation over the loss of life.

47. Had the Respondent established liability on the part of Appellants, this court could have recognized and acknowledged the fact that under Kipsigis Customary Law, the Respondent and the deceased’s family had been paid compensation which was negotiated and agreed upon by the parties having submitted themselves to the forum of Kipsigis Traditional Dispute Resolution Mechanism. This Court in the circumstances could hold that the Respondent and the deceased’s family had been adequately compensated under the Kipsigis Customary Law and Practice. It should be appreciated that under the Kipsigis Customary Law, parties are bound to undergo negotiations and in the end, arrive at a mutual settlement over the sort of compensation to be paid to the victim’s family.

48. The fact that parties have mutually and freely agreed to resolve their dispute using a particular customary law does not in itself bar any party from approaching the Court to seek for any remedy. While hearing the dispute, the Court should always take cognizance of the fact that parties had approached an Alternative Justice System (AJS) other than the formal Courts. The Court should establish whether the AJS decision would affect in any way the outcome of the case before it.

49. In the end, I find this appeal to be meritorious. It is allowed. Consequently, the Judgment and or decree of the Trial Court delivered on 14th May, 2019 is set aside and is substituted with an order dismissing the suit.

50. In the circumstances of this case, a fair order on costs is to order which I hereby do that each party should meet their own costs.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023J.K. SERGON.....................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of:C/Assistant - RutohMiss Chelimo holding brief for Kirui for the RespondentNo Appearance for Miss Koech for the Appellant