[2017] KEHC 1109 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 8 OF 2016

L M M aka L M (minor suing through mother and next of kin

R M N) ………………......……………………........APPELLANT

VERSUS

KENYA FERRY SERVICES LIMITED...…….. RESPONDENT

(An appeal from the judgment of Hon. Kimanga, Resident Magistrate delivered on 20th February, 2015 in Mombasa SRMCC No. 846 of 2012)

JUDGMENT

1. On 11th February, 2016, the appellant filed a memorandum of appeal raising the following grounds of appeal. That;

i. The Learned trial Magistrate erred in fact and in law in failing to consider judicial precedent and arrived at a wrong decision on apportionment of liability and negligence on (sic) minors and or children of tender years as set out in the case of Butt vs Khan [1982] KLR 351;

ii. The Learned Magistrate erred in law and in fact in failing to consider the submissions of the litigants, the pleadings and in apportioning liability on the basis of an issue that was neither pleaded nor submitted up (sic);

iii. The Learned trial magistrate erred in law and in fact in apportioning liability on the basis of the parents of the plaintiff when no particulars of negligence were pleaded against them and neither were they parties to negligence in the case;

iv. The Learned trial Magistrate misapprehended the evidence and took into account extraneous issues and so arrived at an apportionment of labiality that was erroneous and not sustainable in law; and

v. The Learned trial Magistrate in apportioning liability against the minor overlooked even the evidence of the defence;

For the above reasons, the appellant prays for:-

a. The setting aside of the order of the Learned trial Magistrate on apportionment of liability and for the court to order that the respondent is wholly to blame for the accident; and

b. Costs of this appeal and for the case in the subordinate court.

2. The appellant filed his written submissions on 9th November, 2016 and Counsel for the respondent filed his on 30th November, 2016. Counsel for the appellant filed a response to the same on 16th December, 2016.

3. In highlighting the submissions, Mrs. Kariuki, Learned Counsel for the appellant indicated to the court that she would argue the 7 grounds of appeal together. She stated that apportionment of liability at 30% to a minor child of 2½ years of age was unfair. She referred to the case of Gough vs Thorn[1966] 1 WLR 1387, in submitting that the test in the said case was not applied in the present case. Counsel submitted that a child of 2½ years of age could not be regarded to have been negligent as he could not have distinguished between right and wrong. She stated that the respondent made submissions before the lower court that a child of that age could not have been found to be negligent. The Magistrate’s opinion however was that liability should be apportioned due to the mother’s duty of care as she was the next of kin.

4. In making reference to their submissions filed on 16th December, 2016, Mrs. Kariuki submitted that at page 2 thereof, they cited the case of Al Samah Enterprises Ltd. & Another vs Derrick Mugambi (minor suing through mother and next friend) Caroline Gacheru Kibiti, HCCA No. 15 of 2014, where the next of kin was found not to be liable for the negligence of a minor. It was the Counsel’s contention that the issue of contributory negligence did not arise and by bringing up the issue in the Judgment, the Hon. Magistrate misdirected himself as the pleadings were not amended. He thus based his reasoning on wrong principles.

5. She referred to the case of Galaxy Paints Co. Ltd vs Falcon Guards Ltd., Civil Appeal No. 219 of 1998, cited in their submissions filed on 9th November, 2016 where it was held that a court may only pronounce judgment on the issues arising from the pleadings and issues raised. She further submitted that PW1 was not cross-examined on the issue of contributory negligence raised in the statement of defence. The issue was also not brought up in DW1’s evidence. She prayed for the appeal to be allowed with costs of the primary suit and this appeal being awarded to the appellant.

6. Ms. I. Maina, Learned Counsel for the respondent submitted that it was up to the appellant to prove that the respondent was 100% liable for the accident. She stated that even if the respondent had not defended the primary suit, the appellant was still under obligation to prove negligence. She argued that the liability apportioned was not against the minor but his next friend, the mother. She submitted that PW1 testified that she was holding her son’s hand when the accident occurred and that the Hon. Magistrate indicated that the mother owed a duty of care to the plaintiff (appellant) hence the apportionment of contributory negligence. Counsel cited Multiple Hauliers (EA) Ltd vs DMK (minor suing through his next friend and father DKM) [2015] eKLR and W.K (minor suing a through next friend and mother L.K) vs Ghalib Khan & another[2011] eKLR where liability was apportioned to the plaintiffs’ mothers.

7. Counsel submitted that the appellant's mother in this case, owed her son a duty of care. She relied on the case of Dharmagma Patel & another vs TA (minor suing through the mother and next friend HH) [2014] eKLR, to support the issue of apportionment of liability by the Hon. Magistrate.

ANALYSIS AND DETERMINATION

The issue for determination is if liability should have been apportioned to the appellant's mother due to her duty of care to the appellant, a minor.

8. This court’s duty as a first appellate court was enunciated in the case of Peters vs Sunday Post [1959] EA 424. In determining this appeal, this court will bear in mind that it neither saw nor heard the witnesses testify.

9. PW1, R M is the appellant's mother and brought this suit as his next friend. It was her evidence that on 15th December, 2011, she was at the ferry heading from Likoni to Mkomani. She had her children with her including the appellant who was 2 years old. She stated that when they reached the ferry, they found the gate closed and they had to wait for another ferry. The ferry gate was opened when another ferry reached there. It was her evidence that the gate hit the appellant who got injured. PW1 blamed the officer for opening the gate before telling them that he was opening it. She stated that the said officer did not check before opening the gate to confirm that it was safe. The appellant's 2 fingers were crushed. She stated that she was holding the appellant’s hand and that he did not jump on the gate which she described as tall (high). The witness testified that the appellant’s middle finger was amputated while the index finger had a cut wound. He was treated at Nyali Hospital. PW1 produced the appellant’s treatment notes as plf. exh. 1. She reported to Likoni police station where she was given a P3 form, which was marked in court as PMFI – 2. She further stated that she incurred medical expenses in the sum of Kshs.10,245. She produced a bundle of receipts for the said sum as plf. exh. 4. The appellant was seen by Dr. Ndegwa, the medical report was marked as PMFI – 5. He was paid Kshs. 1,500/= and a receipt for the said amount was produced as plf. exh. 6. PW1 prayed for damages and costs of the suit.

10. The defendant’s witness, Hamadi Hemedi Kamanote testified as DW1. He informed the court that he works for the defendant as the Head of Security. It was his evidence that on 8th December, 2011 while on his routine checks, he found a commotion at the waiting sheds at the ferry. He was informed that a guard opened the gate and it hit a child’s fingers. They took the child to the nearest hospital for treatment.

11. It was DW2's evidence that the child was holding the gate as it was being opened and that his finger got into the hinges of the gate. He stated that it was a young child that needed care and it was important for the mother to secure the child. He blamed the mother for not executing her duties. He indicated that the last part of the plaintiff's finger was totally crushed.

12. On cross examination, DW1 stated that he did not witness the accident but was told about it. He indicated that adults have a duty to protect their children and that one needs to be more careful when dealing with children as a child of 2-3 years never knows right from wrong or danger from safety. In his view, a child cannot be negligent. He stated that there was a guard at the gate who sees people that are closest to the gate.

13. On analyzing the evidence and authorities adduced before him, the Hon. Magistrate apportioned liability at 30:70 against the appellant and the respondent, respectively. He justified the foregoing by stating that the respondent’s employee did to apply due diligence and care in ensuring that there were no passengers close to the gate as it was being opened for passengers to board the ferry. In his view, the respondent should have warned the appellant before opening the gate. The Hon. Magistrate found that the appellant’s mother owed him a duty of care to ensure that his hands were not on the gate as they were aware that the gate opened and closed with much frequency.

14. This court notes that Counsel for the parties herein on 27th November, 2013 did record a consent for the production of the P3 form as plf. exh. 6 and the medical report by Dr. Ndegwa dated 29th March, 2012 which was produced as plf. exh. 3. The said medical report states that upon examination, the Doctor found that the appellant’s terminal phalange of the left middle finger was amputated, the stump was well healed and a scar was visible on the distal end of the left finger. He concluded that the appellant suffered severe bone and soft tissue injuries. The Doctor’s opinion was that the appellant suffered 2% permanent disability due to the injuries on the left hand.

15. As captured in the written and oral submissions of the appellant’s Counsel, the center point of this appeal lies on the issue of apportionment of liability. The said Counsel relied on the case of Ann Wambui Ndiritu Kiriamburi suing as the Administrator of the estate of George Ndiritu Kariamburi (deceased) vs Joseph Kiprono Ropko & Another, Civil Appeal No. 345 of 2000, where the court held that a party was under duty to prove assertions of negligence attributed to the other party. Counsel contended that since the respondent pleaded particulars of contributory negligence against the child at paragraph 4(a) to 4(h) of the statement of defence, the respondent had to prove the said particulars but they failed to do so and more particularly for the reason that the defendant’s witness DW1 did not witness the accident. In addressing this issue in his evidence in chief, DW1 stated as follows,“it was a young child who needed care. It was important to secure the child …..I blame the mother for not executing her duties.” On being cross-examined he stated,“a child of 2-3 years never knows right from wrong or danger from safety.”

16. In her evidence, PW1 stated that she was holding PW1’s hand when the accident occurred. It is then apparent that the fingers that were crushed were of the hand she was not holding. It is thus evident that the appellant’s mother had taken adequate steps to secure the safety of her child. This court would not have expected her to hold the appellant on both hands as if he was a captive. The fact that the appellant's fingers were crushed by the gate at the ferry crossing is not an act that can be attributed to negligence of his mother, by virtue of being his care provider. It is this court’s considered opinion that from the circumstances of this case, the guard on duty at the gate was under obligation to ensure that it was safe to open the gate and warn passengers standing close to the gate to keep clear. This should have been done as a matter of health and safety concern for ferry users.

17. Counsel for the respondent relied on the case of W.K (minor suing through next friend and mother L.K.) vs Ghalib Khan & Another(supra) to show that where a court finds it impossible to find one party more liable than the other, both parties should be held equally liable. In her view therefore, the apportionment of liability was fair.

18. The appellant's Counsel relied on the case of Al Samah Enterprises Ltd & Another vs Derrick Mugambi (minor suing through mother Caroline Gacheru Kibiti(supra) which held that the parent to the plaintiff although named as a next of kin was merely a nominal party to the proceedings and that it is a cardinal principle of law and a right to a fair hearing to make a pronouncement against a party not before it in litigation, find her contributorily negligent and transfer the burden of negligence on the plaintiff who was not found blameworthy. Counsel also relied on the case of Gough vs Thorne (supra) which states that the test to apply was whether the child was of such age as to be expected to take precaution for his or her own safety.

19. PW1 gave the age of the appellant as 2 years at the time of the accident but the pleadings give his age as 2½ years. In essence this shows that the plaintiff was too young to discern what was right or wrong. I am in agreement with Counsel for the appellant that their client was too young to have contributed to the accident and his acts could not be blamed on his mother who was not a party to the suit, save for suing on her son's behalf. The appellant's mother had taken adequate steps to keep her son safe by holding his hand. Therefore, the reasoning in the case of Dharmagma Patel & another vs TA (minor suing through the mother and next friend HH)(supra) does not apply in this case.

20. The Court of Appeal in the case of Rahima Tayab & Others vs Anna Mary Kinanu [1983] KLR 114 stated thus:-

“The practice of the court ought to be normally a person under the age of 10 years cannot be guilty of contributory negligence, and thereafter, in so far as a young person is concerned, only upon clear proof that at the time of the doing of the act or making the omission he had the capacity to know that he ought not to do the act or make the omission ……”.

21. The case of Multiple Hauliers (EA) Ltd vs DMK (minor suing through his next friend and father DKM) (supra) is distinguishable from this case as the appellant herein who was aged 2 years at the time of the accident should not have been found liable for contributory negligence and his mother should not have been found negligent on his behalf. It is my finding therefore that the Hon. Magistrate herein, misdirected himself when he apportioned 30% contributory negligence against the appellant. In the Multiple Hauliers E.A Ltd. (supra) case, the plaintiff therein was old enough to ride a bicycle and the accident occurred when he was so doing. The plaintiff and the defendant therein gave conflicting evidence hence liability was apportioned at 50% against each party. I am bound to interfere with the finding of the Hon. Magistrate in this case. I hereby set aside the judgment with the result that the respondent shall bear 100% liability for the injuries sustained by the appellant. The final award is as follows:-

General damages Kshs. 200,000

Special damages Kshs. 11,745

Gross total: Kshs. 211,745

22. The costs of the lower court case and this appeal shall be borne by the respondent. Interest is awarded at court rates.

DELIVERED, DATED and SIGNED at MOMBASA on this 12thday of October, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Jengo for the appellant

No appearance for the respondent

Mr. Oliver Musundi - Court Assistant