[2022] KEHC 3010 (KLR)

Lucy & 2 others v Mukomene & 4 others (Civil Appeal E029 of 2020) [2022] KEHC 3010 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3010 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E029 of 2020

EM Muriithi, J

June 16, 2022

Between

Ntonjira Lucy

1st Appellant

Edward Maina Kinyanjui

2nd Appellant

Creative Analysis Systems Limited

3rd Appellant

and

Murasini Florence Mukomene

1st Respondent

Cyprian Mugambi M’Ambia

2nd Respondent

Rahab Mukombiro

3rd Respondent

Janet Kaununku Kithia

4th Respondent

Gituma George Mugambi t/a GG Mugambi & Company Asdvocates

5th Respondent

(This were Appeals from the Judgment of Hon. A.G. Munene (S.R.M) in Maua CMCC Nos. 5 of 2014, 6 of 2014, 7 of 2014 & 8 of 2014 delivered on 26/8/2020)

Judgment

1. This is a judgment in the consolidated appeals Nos. E029, E030, E031, E032 and 1 of 2020 which consolidated for hearing and determination under file number HCCCA NO. E029 of 2020 by consent of the parties on 21/9/2021, upon which the appeals were subsequently heard by way of written submissions field by counsel for the parties. The 1,2, 3 and 4 Respondents herein (the Plaintiffs in the trial court) had by amended Plaints dated 18/11/2014, sued the Appellants herein (the Defendants in the trial court) seeking special damages, general damages, costs of the suit and interest at court rates. The 5th Respondent was brought by way of Third Party proceedings taken by the 2nd and 3rd Appellants.

2. The Respondents’ claim was that on 22/6/2012, they were lawfully travelling as passengers in the 1st Appellant’s Motor Vehicle Registration No. KBB 400 X along Chuka- Meru road near Katharaka when it collided with the 3rd Respondent’s motor vehicle Registration No KBN 575 N. They averred that the said accident was occasioned by the negligence of the 1st Appellant’s driver and/or agent and that of the 2nd Appellant. They averred that as a result of the matters aforesaid, they sustained serious bodily injuries, which saw them get treated and/or admitted at various hospitals to wit P.C.E.A Chogoria Hospital, A.I.C Kijabe Hospital and Maua Methodist Hospital. They claimed damages for the loss and damage they had suffered.

3. The 1st Appellant denied the claim by her defence dated 4/4/2014 and prayed for the Respondents’ suit to be dismissed. She blamed the occurrence of the accident on the 2nd Appellant who was the driver of motor vehicle Registration No. KBN 575 N.

4. The 3rd Appellant also denied the claim by its statement of defence dated 11/6/2015 and blamed the Respondents and the 1st Appellant for contributing and/or solely causing the accident.

Judgment of the trial court 5. After the conclusion of the trial, the trial court found that the Respondents had proved their case, apportioned liability at 50% on the 1st Appellant and 50% on the part of the 2nd and 3rd Appellants, and awarded the 1st Respondent General Damages of Ksh. 500,000, Special damages of Ksh. 104,618 plus costs and interest from the date of filing the suit; the 2nd Respondent General Damages of Ksh.100,000, Special damages of Ksh.10,060 plus costs and interest from the date of filing the suit; the 3rd Respondent General Damages of Ksh.1,000,000, Special damages of Ksh.91,458 plus costs and interest from the date of filing the suit; and the 4th Respondent General Damages of Ksh. 150,000, Special damages of Ksh.22,393 plus costs and interest from the date of filing the suit.

The appeal 6. On appeal, the Appellants filed their Memorandum of Appeals on 16/12/2020 and 3/2/2021 setting out 6 grounds of appeal as follows:1. That the Honourable Magistrate erred in law and fact in holding that the Respondents had proved negligence against the 1st Appellant contrary to the evidence tendered.2. That the Honourable Magistrate erred in law and fact in finding that the 1st Appellant’s driver had contributed to the occurrence of the accident and thereby apportioning him a 50% liability.3. That the Honourable Magistrate erred in law and fact in awarding excessive amount in General Damages not within limits of already decided cases of similar nature.4. That the Honourable Magistrate misdirected himself in law and fact by awarding interest on general damages from the date of filing suit.5. That the learned trial magistrate erred in law and fact in failing to make a determination on the Third Party proceedings that had been taken out by the 2nd and 3rd Appellants against Gituma George Mugambi T/A G.G Mugambi & Company Advocates.6. That the learned trial magistrate erred in law in failing to make a finding whether the 2nd and 3rd Appellants were entitled to indemnity and/or contribution from G.G Mugambi & Company Advocates.

Duty of first appellate court 7. This being a first appeal, this court is duty bound to re-evaluate the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Anor. v Associated Motor Boat Co. Ltd (1968) EA 123).

Evidence 8. PW1 Janet Kaurianku, the 4th Respondent herein, adopted her statement and further statement as her evidence in chief. She had been involved in a motor vehicle accident involving a bus and a lorry both of which were over speeding. She was treated at St. John of God hospital and she had a discharge summary showing that she was discharged on 30/4/2018. She had been taken to the hospital due to a stomach problem. She said that she was with Rahab Mukomberi and Cyprian Mugambi and they had seat belts. She had not completely healed, as she still had pain on the chest, on the right hand and left leg. Both Rahab Mukomberi and Cyprian Mugambi also got injuries.

9. On cross examination by counsel for the 1st Appellant, she stated that she was a passenger in the bus and she had proof thereof. The speed was about 180 km/per hour and she was seated behind the driver’s seat. Although she saw the speedometer from where she was seated, she did not know the speed applicable to the said road. The lorry was on the wrong lane and she told the driver to slow down. She was aware the driver of the lorry had been charged and she was not paid by CIC Insurance. She had not fully recovered but the wound had healed and that the accident was in 2012.

10. On cross examination by counsel for the 2nd and 3rd Appellants, she stated that the accident was at Katharaka area and the road was straight. The accident involved motor vehicle Registration No. KBB 400 X, the bus and motor vehicle Registration No. KBN 575 N, the lorry. The accident was towards Meru direction and although there was a space where the bus could have evaded the accident, she blamed both the bus and the lorry drivers. She was examined by Dr. Macharia in 2013 and she disagreed with the report on the nature of injuries. She was examined again by Dr. Wambugu, whose report she agreed with.

11. On re-examination, she stated that Dr. Macharia had opined that she would have post trauma arthritis which would be permanent. The doctor further said that she would be attending physiotherapy and she was on medication. She did not have an opportunity to make a report at the police station. She was injured after the accident and that there was no space for the bus to escape.

12. PW2 Cyprian Mugambi, the 2nd Respondent herein adopted the evidence of PW1 and his 2 statements as part of his evidence. He and Rahab Mukwambiro were passengers in the bus and they were both injured. He was injured on the head, both legs, forehead and chest. 2 medical reports were prepared and he blamed the 2 motor vehicles for causing the accident.

13. On cross examination by counsel for the 1st Appellant, he stated that he had healed but still had slight headaches, and he went to the hospital on need basis. He did not have any fractures but he was cut by glasses. If the lorry had kept to its lane, the accident would not have occurred.

14. On cross examination by counsel for the 2nd and 3rd Appellants, he stated that he was examined by Dr. Macharia in 2013 although the accident was in 2012. He disagreed with the doctor’s opinion as his injuries were serious and he was also examined by Dr. Wambugu. Although he was with Janet Kaunanku, Rahab Mukombiro and Florence Mukomeme, Rahab’s name was not in the police abstract.

15. On re-examination, he stated that he had not completely healed and there was a foreign object in the head. Rahab Mukombiro was a passenger and she got injured.

16. PW3 Rahab Mukombiro, the 3rd Respondent herein, testified that she had stomach problem and leg issues as a result of the accident. She adopted the evidence of PW1 and PW2 and her statement as part of her evidence. She underwent 6 surgical operations, lost her spleen and her small intestines were removed as a result of the accident. Her liver was also injured and repaired and Dr. Wambugu recommended a certain operation to the tune of Ksh.140,000 at Kenyatta National Hospital. She could no longer work as she used to because she had pain in the stomach and leg; and the permanent incapacity was assessed at Ksh.12%.

17. On cross examination by counsel for the 1st Appellant, she stated that she was sitting in the middle but on the driver’s side and she did not see how the accident happened. She used to farm and sell crops before the accident and she blamed the lorry for the accident.

18. On cross examination by counsel for the 2nd and 3rd Appellants, she stated that she was examined in 2013, and although she had recovered, she still went for medication. She was examined by Dr. Wambugu in 2017 and she could go to the hotel well but she still had pain in the naval area.

19. PW4 Murasini Florence Mukomene, 1st Respondent herein, adopted her statements recorded on 17/10/2013 and 26/6/2015 as her evidence in chief. She stated that other passengers namely Janet Kaunanku, Rahab Mukombiro and Cyprian Mugambi were also injured. She was injured on the left leg on the knee and she was admitted at Chogoria Hospital from 23/6/2012 to 18/7/2012. She was referred to Kijabe Hospital for physiotherapy and a further surgery which necessitated her admission there for 1 week. She denied either instructing G. Mugambi to act for her or receiving any money as a result of the said accident. She denied signing any instruction note in respect of Mugambi Advocate on 12/7/2018, because on that date she was still admitted at Chogoria Hospital. She further denied signing any discharge voucher and as at 9/5/2013, she had expended over Ksh. 300,000 as per the receipts she had. No medical report had been done by that time as she was still undergoing physiotherapy and she had not taken the P3 form and the police abstract. She denied giving any documents to Mugambi Advocate to negotiate on her behalf and she did not know on what basis Ksh. 158,000 was paid to the said Advocate. She had not fully recovered as the doctor had said the ligaments were torn and thus they could not be repaired, so she would live with that incapacity for the rest of her life. She could not go to a normal toilet, lift heavy loads and during the cold season, she still felt pain. Due to the metal plates, she still felt pain on the knee and she could not run. She was sitting behind the driver but on the middle and she blamed both motor vehicles for the accident. Two medical reports were done by Dr. Macharia and Dr. Catherine Mutuku.

20. On cross examination by counsel for the 1st Appellant, she stated that the bus was over speeding but she could not tell the exact speed. They told the driver to slow down and he said he would. They did not stop at Embu and the lorry was being driven in a zig zag manner and at a high speed. She denied ever talking to G.G. Mugambi or instructing him and receiving any payment. By paying the account, the CIC Insurance was admitting liability and she denied being examined by Dr. Catherine Mutuku. Her disability was permanent because she could not walk with any aid, and she had improved.

21. On cross examination by counsel for the 2nd and 3rd Appellants, she stated that she was 41 years in 2013 and she could not recall when the P3 was filled or her postal address. After denying being examined by Dr. Mutuku, she stated that Dr. Macharia had advised her to use pain killers. She denied receiving any payment, knowing G.G Mugambi and said that there was a claim against him.

22. On re-examination, she stated that the P3 form given to CIC was different from her P3 form which was filled at Chogoria Hospital. She denied ever being examined by Dr. Catherine Mutuku and she did not know Mugambi had not entered appearance.

23. DW1 Isaac Munene adopted his witness statement recorded on 26/5/2019 as his evidence in chief. He stated that he was keen on driving, the accident happened on his lane and the driver of the lorry, who was also charged, was the one to blame.

24. On cross examination, he stated that he was the driver of KBB 400 X and he had driving experience of over 20 years. The scene was on a corner and a bend and he saw the lorry from a distance of 30 metres. He was driving at 40 km per hour, which allowed him to control the car, and he could not swerve as there was a guardrail. Although he applied brakes, he did not stop as he was still in motion, but he slowed down. The lorry hit him and the 1st and 2nd Respondents, who were in his vehicle, got injured and they were taken to the hospital. He gave evidence in a traffic case but he could not recall the case number.

25. On cross examination by counsel for the 2nd and 3rd Appellants, he stated that he saw head lights of the lorry at a distance of 30 metres and the accident happened around 11. 00 pm-12. 00 am. He slowed down and observed the vehicle, which was on his lane, and he left his lane and went near the guardrail. The only option he had was to slow down to allow the lorry to go back to its lane. The impact was on the right side and the accident, which happened on a corner, was a head on collision. He gave evidence against the driver of the lorry in the traffic case.

26. On re-examination, he stated that 40 km/per hour was not high speed and there was no speed limit around that area. It was not safe to swerve as he would have ended in the wrong lane or on the guardrail. He applied brakes and slowed, thus he was not to blame for the accident.

27. DW2 Erastus Mbuka working with CIC Insurance as a legal officer, testified that there were negotiations between CIC Insurance and the law firm of G.G Mugambi & Co Advocates, which was representing the 1st Respondent. Once negotiations were concluded, a sum of Ksh.158,300 was paid to the said firm and he prayed for the dismissal of the 1st Respondent’s case, as the same had been settled.

28. On cross examination by counsel for the 1st Respondent, he stated that he learnt G.G Mugambi Advocate was suspended in 2018, but at the time of their dealings with him, he was authorized to transact. Although the 1st Respondent duly signed an instruction note, they were unable to verify the signature, and since it was the 1st Respondent who alleged forgery, she ought to have pursued a criminal case. The amount from the receipt from Chogoria Hospital was illegible and the P3 was filled by Dr. Mutoko. The medical report was filled by Dr. Mutoko Catherine Mwende, and as per the P3 form, the patient was discharged on 5/7/2012. They filed a 3rd party claim and they negotiated with G.G Mugambi Advocate on a without prejudice basis.

29. On re-examination, he stated that they paid the claim in 2012 when G.G Mugambi had a valid certificate and it was the 1st Respondent’s duty to lodge a complainant on the issue of forgery. They had not received any response to their 3rd party claim.

Submissions 30. The parties agreed to canvass the appeals by way of written submissions. The 1st Appellant in her submissions filed on 21/10/2021submitted that the particulars of negligence as pleaded by the 1st Respondent had been controverted by the evidence of the 1st Appellant’s driver, who explained that the accident occurred on his lane and he had done all within his means to avoid it, and the driver of motor vehicle Registration No. KBN 575 N, was charged with careless driving. She submitted that since the 2nd Appellant, the 3rd Appellant’s driver, did not give evidence to challenge the fact that the 1st Appellant and the Respondents had blamed him for the accident, the 3rd Appellant’s defence remained a mere statement of fact, since it did not substantiate its pleadings, and supported that argument with Chrispine Otieno Caleb v Attorney General (2014) eKLR. She abandoned ground 3 on the award of general damages being excessive. She faulted the trial court for awarding interest on general damages from the time of filing suit, yet the same had not accrued as at that time because the quantum of damages and costs had not been ascertained, and relied on Heinz Broer v Buscar (K) Ltd & Others(2019) eKLR and Royal Media Services Limited & Anor v Jakoyo Midiwo(2018) eKLR. She urged the court to find that the trial court erred in awarding interest on general damages and costs from the date of filing suit. She urged the court, in its review of the evidence before the trial court, to find that the 2nd and 3rd Appellants were entirely to blame for the occurrence of the accident.

31. The Respondents in their submissions filed on 8/3/2022 conceded to ground 4 on interest on general damages, urging that the error was not theirs but on the trial court. They submitted that the 2nd and 3rd Appellants had not appealed against the trial court’s finding on liability. They submitted that the trial court’s apportionment of liability at the ratio of 50:50 was proper as it was supported by the evidence on record, and relied on Hussein Omar Fara v Lento Agencies (2006) eKLR. They faulted the 2nd and 3rd Appellants for failing to call expert evidence to establish any nexus between the 1st Respondent and the alleged payment to G.G Mugambi and/or contribution from the 3rd party. They urged the court to dismiss the appeal save for the conceded ground on the date on which interest on general damages was to apply.

32. The 2nd and 3rd Appellants in their submissions filed on 19/1/2022 submitted that they took out 3rd party proceedings against G.G Mugambi, and Erastus Mbaka had testified that the 1st Respondent had instructed the firm of G.G Mugambi to act and negotiate on her behalf. In their view, the trial court erred in failing to address the question of indemnity and contribution from the firm of G.G Mugambi & Company Advocates. They urged the court to find merit in ground 1 of their amended memorandum of appeal by finding that they were entitled to indemnity and contribution from the firm of G.G Mugambi & Company Advocates, as had been sought in the Third Party Notice. They submitted that it was settled law that the discretion to award interest from the date of filing suit only related to special damages, and relied on Shariff Salim & Another v Malundu Kikava (1989) eKLR and Royal Media Services Ltd & Another v Hon Jakoyo Midiwo (2018) eKLR. They submitted that the erroneous award of interest on general damages from the date of filing the suit ought to be set aside and substituted with a finding on interest on general damages from the date of judgment. They prayed for the trial court’s finding on liability at 50:50 and quantum to be affirmed, and they be awarded costs of the appeal.

Analysis and Determination 33. With the withdrawal and/or abandonment of the ground on the award of general damages being excessive, and the concession by the parties that interest on general damages ought to have been computed from the date of judgment, the 2 issues that remain for determination are whether the Respondents proved negligence on the part of the Appellants to justify apportionment of liability at the ratio of 50:50 against them; and whether the 2nd and the 3rd Appellants were entitled to indemnity and/or contribution from G.G Mugambi Advocates.

34. On whether the Respondents proved negligence on the part of the Appellants, the 4th Respondent testified that she, the 2nd Respondent and the 3rd Respondent were travelling in the 1st Appellant’s bus and they had buckled their safety belts. She stated that, “both the bus and the lorry were on high speed…the speed was about 180 km/ per hour. I was near the driver. I was sitting behind the driver’s seat. I saw the speedometer from the seat I was….The lorry was on the wrong lane. I told the driver to slow down..Am aware the lorry driver was charged.” Whereas she stated on cross examination that there was a space where the bus could have evaded the accident, she stated on re-examination that there was no space for the motor vehicle to escape. Although PW2 also stated that both motor vehicles were to blame, he admitted in cross examination that, if the lorry had kept to its lane, the accident would not have occurred. PW3 testified that although she did not see how the accident had happened, she blamed the lorry.

35. PW4 and the 1st Respondent herein, testified that she was seated behind the driver but on the middle, and she blamed both motor vehicles for the accident. On cross examination, she stated that, “the bus was on high speed but I can’t tell the speed. We did not stop at Embu. We told the driver to slow down. The driver said he will slow down. The lorry was on high speed and being driven zigzag. Both motor vehicles were to blame. The police abstract states it is the lorry which was to blame.”

36. In his defence, the driver of the bus, DW1 testified that he was driving keenly, and since the accident was on my lane, the driver of the lorry was to blame. On cross examination, he stated that, “the scene was on a corner and a bend. I saw the lorry from a distance of 30 metres. I was driving at 40 km per hour. This speed allowed me to control the car. There was guardrail and I could not swerve… I applied brakes but it did not stop as I was still in motion. I slowed down. The lorry hit me.”

37. From the evidence on record, it is evident that the lorry left its lane and came to where the bus was. There is also evidence that the lorry was being driven at a high speed and in a zigzag manner. The scene of the accident was a corner and/or a bend and thus both drivers were negligent as they ought to have exercised more care and caution. There was also evidence that the bus driver could not swerve in order to avoid the accident as there was a guardrail on the side.

38. The apportionment of liability at the ratio of 50:50 was erroneous as it was clear that the accident was majorly caused and/or contributed to by the driver of the lorry. The driver of the bus stated that he applied brakes but the bus did not stop and he slowed down, but the lorry still hit him, thereby causing the accident. The driver of the bus, albeit keenly driving on his lane, was at fault for driving at a high speed on a corner and /or a bend. The trial court’s judgment on liability and the reasoning for apportioning liability at 50:50 against the Appellants stated that, “…the driver of motor vehicle KBB 400 X applied brakes but the motor vehicle could not stop and further the evidence of PW1, PW2 and PW3 that the motor vehicle was on high speed, I find that both the driver of motor vehicle KBN 575 N and KBB 400 X were to blame for the accident.” Even if the driver of the bus had stopped, the driver of the lorry would have still hit him, thus causing the accident. There is no occasion for imposing a fifty per cent contributory liability on the bus driver. This is clearly not a case as held in W.K (minor suing through next friend and mother L.K.) v Ghalib Khan & Another [2011] eKLR stated that, “where a court finds it impossible to find one party more liable than the other, both parties should be held equally liable.” See also Court of Appeal in Haji v Marair Freight Agencies Ltd [1984] KLR 139 that:- “Where it is proved by evidence that both parties are to blame and there are no means of making a reasonable distribution between them, the blame can be apportioned equally on each.”

39. In this case, the Court takes the view that the liability of a driver, who drives at high speed, in a zigzag manner and on a wrong lane cannot be equated to that of a driver, who keenly drives on his lane even though at high speed. Therefore, the 2nd and 3rd Appellants ought to have shouldered 80% liability with the 1st Appellant only shouldering 20% liability, and the trial court erred in its apportionment of liability equally between them.

Third Party Proceedings 40. On whether the 2nd and 3rd Appellants were entitled to indemnity and/or contribution from G.G Mugambi Advocates, the court on 26/10/2016 directed that a third party notice be issued to Gituma George Mugambi T/A G.G Mugambi Advocate. On 12/7/2017, counsel for the 2nd and 3rd Appellants informed the court that the 3rd party notice had been served.

41. Order 1 Rule 15 of the Civil Procedure Rules provides as follows: “(1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)— (a) that he is entitled to contribution or indemnity; or (b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit. (2) A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons. (3) The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.”

42. After such service, order 1 Rule 17 of the Civil Procedure Rules provides for default of appearance by the 3rd party as follows; “If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the “third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice.”

43. In this case, the 3rd party, G.G Mugambi Advocate though served with the 3rd party Notice on 26/10/2016 did not enter any appearance thereof.

44. In the Court of Appeal case of Jessie Mwangi Gachago v Attorney General [1981] eKLR, Madan, Law JJA & Simpson Ag JA quoted Gloucestershire Banking Co. v. Phillipps, 12 Q. B. D. 533 (1884) (upholding summary judgment against a third party joined) in which Lord Coleridge CJ said — “The third party is in the position of any other defendant, and if any other defendant appears and will make no defence, when properly called upon to make it … Judgment may be signed against him.”

Right to Indemnity 45. Indemnity is one of the grounds upon which a defendant may issue with leave of the court a third party notice under Order 1 Rule 15 of the Civil Procedure Rules. See Yafesi Walusimbi v. AG of Uganda(1959) EA 223 and Total Oil Products Ltd v. William M. K. Malu (1966) EA 164. In addition, as defined in Bullen and Leake’s Precedents of Pleadings, 10thed. (1950) at p. 164, “an indemnity is a collateral contract or security (either express or implied) whereby the principal party or indemnitor undertakes to compensate another person (the indemnitee) for any loss or injury resulting from some act or forebearance done by him at the request of the Indemnitor.” See also Birmingham and District Land Co. v. L. and N.W. Rly. Co. (1887) 34 Ch. D 261 cited in Yafesi Walusimbii and dealing with a rule similar to our Order 1 Rule 15 of the Civil procedure Rules. In this case, there is a right to indemnity based on the dealing between the 2nd and 3rd appellants’ Insurer CIC Insurance and the purported advocate for the 1st respondent during the negotiations on the settlement of the negligence claim herein.

46. If the said firm of advocates received payment on the basis of negotiations between CIC Insurance and the law firm of G.G Mugambi & Co Advocates ostensibly acting for and representing the 1st Respondent, upon such negotiations a sum of Ksh.158,300 being paid to the said firm - which the court accepts on a balance of probabilities - the firm must be deemed by implication to promise that should the negotiations fall through and or should it turn out that the firm of advocates were not properly instructed by the 1st respondent to act for her, the firm would indemnify the CIC Insurance by reimbursement of the funds not as breach of any contract but by virtue of the implied promise, in the absence of an express contract of indemnity. That is the basis of the indemnity in this case.

47. Accordingly, this court finds that the trial court fell into error when it failed to find the 3rd party, G.G Mugambi Advocate, bound by an implied promise to indemnify the 2nd and 3rd Appellants for loss in the process of settlement of the claim herein. The questions whether the 1st Respondent signed the documents relied on by the 2nd and 3rd Appellants or whether the documents submitted to CIC Insurance Company were forgeries are answered by the clear evidence that the 3rd party, G.G Mugambi Advocate did receive the sum of Ksh.158,300 from the 2nd and 3rd Appellants, and the trial court having found them liable, they were entitled to indemnity and/or contribution from the 3rd party. It would be an offence against the Overriding Objection of the civil process under section 1A and 1B of the Civil Procedure Act “to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act” to require the 2nd and 3rd appellants to pursue the reimbursement of the Ksh.158300 from the 5th Respondent Third Party by separate suit or proceedings.

48. The upshot from the foregoing analysis is that the appeal is allowed.

Orders 49. Accordingly, for the reasons set out above, and for clarity and avoidance of doubt the court makes the following Orders:1. Liability is apportioned at the ratio of 20%:80%, respectively, against the 1st Appellant on the one hand and the 2nd and 3rd Appellants on the other hand.2. The interest on Special Damages shall be calculated from the date of filing the suit on 13/1/2014. 3.The interest on General Damages shall be calculated from 26/8/2020 being the date of judgment on 26/8/2020. 4.Mr. Gituma George Mugambi Advocate, t/a G.G. Mugambi & Co. Advocates, the Third Party (5th Respondent herein) shall indemnify the 2nd and 3rd Appellants for the sum of Ksh.158,300. 5.The 1st Appellant shall pay the 1st Respondent the sum of Ksh.120,923. 60 while the 2nd and 3rd Appellants shall pay her the sum of Ksh.483,694. 40, in accordance with the 20:80 liability ratio.6. The 1st Appellant shall pay the 2nd Respondent the sum of Ksh.22,012 while the 2nd and 3rd Appellants shall pay him the sum of Ksh.88,048 in accordance with the 20:80 liability ratio.7. The 1st Appellant shall pay the 3rd Respondent the sum of Ksh.218,291. 60 while the 2nd and 3rd Appellants shall pay her the sum of Ksh.873,166. 40 in accordance with the 20:80 liability ratio.8. The 1st Appellant shall pay the 4th Respondent the sum of Ksh.34,478. 60 while the 2nd and 3rd Appellants shall pay her the sum of Ksh.137,914. 40 in accordance with the 20:80 liability ratio.

50. Each party shall bear its own costs.

Order accordingly.DATED AND DELIVERED ON THIS 16TH DAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S J. M. Mwangi & Advocates for 1st Appellant.M/S Munene Wambugu & Kiplagat Advocates for the 2nd Appellant and 3rd Appellants.M/S Haron Gitonga & Co. Advocates for the Respondents.