[2017] KEHC 651 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 114 OF 2014

MADALE TRUCKING CO. LTD.........................PLAINTIFF

VERSUS

KENYA FERRY SERVICES............................DEFENDANT

J U D G M E N T

Introduction and state of Pleadings

1. By it’s plaint dated 24/6/2014 and filed in court on 5/9/2014 the Plaintiff, a limited liability company incorporated in Tanzania, sued the defendant and sought the recovery of; Kshs.6,354, 523. 95 being costs of repairs of its motor vehicle Reg. No. T411 BSC hauling trailer No. T783CBT; USD 96,0000 being loss of business and income as well as general and exemplary damages.

2. The facts pleaded and sought to be supported by the witness statement and documents are that on the 7/3/2014, the plaintiffs said motor vehicle when being driven by its driver, and having paid the requisite toll fees to cross Likoni channel by use of the ferry services provided by the defendant, and while endeavoring to drive onto the ferry, the defendants agent, the coxswain negligently and recklessly caused the ferry to undock thereby causing the plaintiffs motor vehicle to plunge into the sea and be submerged into the sea waters thereby suffering damage and necessitating loss in repair and related costs of Kshs.6,354,523. 95. As a consequence of the said damage, the plaintiff also sought to recover lost income at USD 80,000 per month and loss due to inadequate fleet at USD 16,000 per month making an aggregate of USD 96,000.

3. To found its claim against the defendant, the plaintiff gave particulars of negligence as well as malice and relied on the doctrine of Res Ipsa Loquiter. The plaintiff also filed a list of witness as well as documents and copies of such documents which included, certificate of incorporation of the plaintiff, motor vehicle Registration card, a salvage agreement, police abstract, certificate of examination and test of a motor vehicle, investigation report and invoice for same and repair costs estimate form. Equally filed were photographs of the sunken motor vehicle and a demand note from the plaintiffs advocate. For witness statements, the plaintiff filed statements by one Mashaka Jonas Madale and Pinehus Mshahara, a director of the plaintiff and turnboy working on the lorry on the material day, respectively. At trial the two witnesses were called to give evidence and produced the documents filed as exhibits.

4. To the plaintiffs claim, the defendant filed a statement of defense dated 30/9/2014, on the 3/10/2014. The defense is a classicusof a true traverse. In it the defendant denied all allegations in the plaint including the plaintiff’s ownership of the motor vehicle, the defendants being the statutory operator of ferry service across Likoni Channel, the fact that the plaintiffs lorry sunk into the sea at the channel, all the particulars of negligence, loss and even damage. Even the service of demand was denied. The defendant then advanced a further and alternative pleading to the said traverse by asserting that if any accident occurred then it was not its fault but the sole negligence on the part of the plaintiff agent or servant. Particulars of negligence on the part of the plaintiff were then set out. Those particular then blamed the lorry driver for among other things; failing to follow instructions, driving into the ferry after it had undocked, driving a motor vehicle without effective brakes, failing to wait for the next ferry and failing to control the motor vehicle so as to avoid plunging into the sea.

5. The defendant also filed witness statement by one SETH AKECH, the coxswain on duty at the material time and one KENNEDY KASAKA KORI the deckhand on duty on the same day. No documents were however filed on behalf of the defendant but after trial, parties agreed that a video clip downloaded from the defendants CCTV for the day and capturing the incident would be availed and produced by consent as an exhibit. At trial only SETH AKECH, the coxswain gave evidence.

Evidence by the plaintiff

6. PW 1, the turnboy, and one of the only two eye witnesses to be called by the parties gave evidence by adopting and relying on his witness statement as evidence in chief and availed self for cross- examination. In the witness statement the witness stated that after paying the toll and while waiting for the ferry to dock, he was approached by an employee of the defendant with a demand for a bribe and that when the declined the said servant threatened to sabotage their safe crossing of the channel. He went on to state that in fulfilling the threat the said stuffer of the defendant told the ferry driver, coxswain about their failure to pay the bribe of Kshs.100 when it was their time to drive aboard, the very coxswain moved the ferry with the consequence that the lorry plunged into the sea. In the statement the witness said at the time the coxswain moved the ferry the front wheels of the motor vehicle were already on the ferry. He blamed the defendant’s said agent for acting maliciously against the plaintiff lorry when in fact they had done all which was expected of them to get the defendant’s services and that their lorry was 3rd behind two others.

7. In cross examination, he reiterated his story only adding that after paying for the toll, he did not go back to the lorry and saw the askari speak to coxswain on his radio call. He added that prior to the date of the incident he had worked from the plaintiff for 4 years and was conversant with the regulations at the ferry. After the incident he made a report to the police station. He denied that the lorry had faulty brakes and insisted that it was well serviced.

8. PW 2 was the director of the plaintiff. His evidence in chief as captured in the witness statement was to the effect that he was on the 7/3/2014 informed that the suit lorry had been involved in an accident at the Likoni channel.

9. He then reiterated what was told to him by the lorry crew and that he then travelled to Mombasa for the purposes of arranging for the salvage of lorry which operation was undertaken by Kenya Rescue Divers and Lifesavers at Kshs.320,000/=. Upon being retrieved from the sea, the motor vehicle was taken for examination and inspection by motor vehicle inspection unit where it was declared unfit for use in both Kenya and Tanzania due to the damage and repair costs were estimated at Kshs.6,015,383. 90. The plaintiff therefore claimed not only the costs of repairs but also loss of business in the sum of USD 96,000. The witness further averred that due to the damage the plaintiff was put to repay the facility used to acquire the motor vehicle in the sum of Tshs.256,731,068 which sum the plaintiff sought to recover from the defendant.

10. On the basis of that evidence the witness sought that judgment be entered for the plaintiff against the defendant as prayed in the plaint.

11. In cross examination the witness said the driver of the lorry on the material day was called Joshua and that he left employment after the accident hence could not be called as a witness. On the accounts tendered in evidence the witness said the company had an accountant who prepared the report but the said report was signed by the witness. He also said that they had not produced any tax returns to prove income and lastly that the lorry was brought at Kshs.7,500,000 in year 2013.

12. When asked questions by the court the witness said that the documents produced to prove ownership of the motor vehicle showed that the trailer was registered in its name in the year 2012 July while the lorry was registered in Many 2011 and not 2013 as said on cross examination.

13. On costs of repairs, the witness confirmed that it would be economically unviable to seek to repair the truck and that the salvage value was disclosed at Kshs.1,000,000/-.

14. For the defendant one Seth Oketch was called and gave evidence while relying on the witness statement filed on 19/9/2016. In the witness statement the witness said that on the material day after some five saloon cars, three trailers and one bus had boarded, the ferry, the plaintiff’s motor vehicle approached the ferry at a very high speed and hit the prow thus pushing the ferry towards the sea thereby plunging itself into the sea waters after the driver jumped out onto the ferry deck.

15. In his opinion and view the driver could have engaged reverse gear or applied brakes to avoid the accident. In cross examination, he admitted that the lorry had been signaled and allowed into the ferry while the prow was down and that no vehicles were damaged by the plaintiffs motor vehicle. When shown the photographs of the ferry the witness admitted that there was no visible damage to the ferry and that by the time the lorry driver jumped onto the ferry dock the head of the lorry was already on the prow.

16. When asked questions by the court, the witness said the prow is 3-4 metres wide. He said that when docked, the ferry can be kept docked on the ramp by use of engines and that the ferry having been pushed, it could not hold the lorry from plunging into the sea. With that evidence the defendant sought to produce a clip from the CCTV camera’s maintained by it for the material day. That request was conceded to by the plaintiff and the clip was therefore submitted to court and admitted as evidence to be relied upon by the court as exhibit D1.

Submissions by the parties

17. Pursuant to court orders made on the 23/3/2017 the plaintiff filed submissions dated 10/4/2017 on 11/4/2017 while the defendant did so on the 7/6/2017. In its submissions the plaintiff took the position that the defendant being the sole ferry operator at the Likoni Channel had the duty of care owed to all who use ferry service to cross the channel and that it breached that duty when its ferry was moved in the way it did so that the plaintiffs vehicle plunged into the sea. To the plaintiff, the defendant’s duty entailed the obligation to ensure that all vehicles using the ferry safely boarded before the ferry undocked. To support that submission, the plaintiff relied on the decision in Katana Ngao vs Andrew Kanan Wakabi [1993] eKLR.

18. On the position taken by the defendant that the plaintiff’s driver attempted to board after the ferry had undoubted, the plaintiff submitted that this is not supported by the evidence in the video availed to court in evidence by consent. The plaintiff equally relied on the video footage to show that it is not true as contended by the defendants witness that the plaintiff’s lorry was speedily driven into the ferry thereby pushing it towards in sea. Reliance was equally put on the decision in Statpack industries vs James Mbithi Mukao [2005] eKLR for the proposition that it is the plaintiffs duly to establish the link between the defendants conduct and the plaintiffs injury. On that proposition the plaintiff submitted that the only cause for the vehicle to plunge into the sea was the defendant’s coxswain’s act of undocking before the vehicle could safely board. On those submissions, the plaintiff asked the court to find that the incident complained about was solely caused by the defendants employees and that the plaintiffs had not contributed in any way to the causation.

19. On quantum of damages, the plaintiff submitted that it is entitled to the special damages as pleaded together with general damages in the sum of Kshs.10,000,000. 00 being the loss of profits from the use of the motor vehicle and exemplary damages in the sum of Kshs.2,000,000/= on account of what the plaintiff considered as malicious conduct driven by a malicious desire to extort a bribe of Kshs.100/=.

20. On behalf of the defendant, submissions were offered to the effect that only the lorry driver ought to have given evidence to demonstrate how the incident occurred. The defendant asked the court to find that the failure to avail the driver should be resolved in favour of the defendant. In effect the defendant asked the court to make an adverse inference that had the driver been called this evidence would have been adverse to the plaintiff’s case. To it therefore the plaintiff had failed to discharge its duty and burden of proof and therefore the case ought to fail but if the court was to find for the plaintiff the blame should be apportioned at 50%:50%.

21. On special damages, the Defendant reiterated the law that special damages must not only be specifically pleaded but also strictly proved. It was submitted that the plaintiff failed to meet this obligation by total failure to produce any evidence on the books of accounts and repair and associated costs.

22. On both general and exemplary damages, it was submitted that no evidence was led and therefore both limbs of prayers cannot be awarded.

Issues, analysis and determination

23. By statement of issues dated 18/8/2016 and filed on 27/5/2017, the plaintiff isolated some 9 issues for determination by the court.

24. Having read the pleadings and taken account the evidence led at trial, I have come to the conclusion that the nine(9) issues can be reframed into four(4) as follows:-

i) Whose negligence caused the plaintiffs motor vehicle to plunge into the sea on the material day?

ii) Did the plaintiff suffer any damage as a result thereof?

iii) What is the quantum of damage due to the plaintiff, if any?

iv) Who should pay costs?

Whose negligence caused the plaintiffs motor vehicle to plunge into the sea on the material day?

25. That the plaintiff’s motor vehicle plunged into the sea on the material day is not in doubt nor controversy. The controversy and difference is that while the plaintiff contends that the defendant’s coxswain while accentuated by ill will and malice, moved the ferry away as its motor vehicle was in the process of boarding, the defendants position is that it was the plaintiffs driver that allowed the motor vehicle to hurl at a speed while approaching the ferry thereby hitting the ferry prow and pushing the ferry into the sea and consequently plunging itself into the sea. The rival evidence is presented by the only two eye witnesses to the incident; the coxswain for the defendant and a turn boy for the plaintiff. The two witnesses on their own are not reconcilable on how the accident occurred hence it was the most useful thing for the two counsel to agree that a video clips from the defendants CCTV be availed to court. I have had the chance to watch the two clips. The first clip stops just as the motor vehicle is approaching the ferry to board. It does not show the vehicle plunging into the sea. The second clip truly and clearly captures the happenings. It shows the motor vehicle approach the ferry, commences the boarding and indeed lands its front and second sets of wheels onto the ferry deck. As the other sets of tyres land on the ferry deck, the ferry is seen to start its movement away from the ramp. My watching of the clip reveal that the head or prime mover had indeed landed on to the ferry and even the first set of wheels of the trailer had themselves so landed before the ferry was moved thus letting the lorry plunge into the sea. As the ferry moves away and before the lorry plunges into the sea a person is seen jumping from the drivers cabin onto the ferry deck. At that time, more than 60% of the lorry and its trailer were aboard the ferry. My understanding of that clip shows no high speed by the lorry in approaching the ferry. Infact it reveals no hitting of the prow of the ferry by the lorry.

26. After reviewing that video clip it is clear to me that the ferry was undocked as the lorry was in the process of boarding and had infact substantially boarded when the ferry was controlled to sail away. It is not that the lorry hit the ferry so as to force it to commence an abrupt sail. The ferry was set assail not by the lorry but by its coxswain. The ferry can be seen sailing away with room for more vehicles to board. It cannot be true for the defendant to contend that the lorry was negligently driven without waiting for the next ferry. If that were true the defendants agent ought not to have signaled it to board.

27. For the foregoing reasons, I find that it was negligent for the coxswain of the ferry to set assail while the lorry was not fully on the deck of the ferry. It was the act of moving away the ferry that led to the lorry plunging into the sea. That the driver jumped off did not at all contribute to the accident and the resultant loss. It was only humanly prudent for the driver in self-preservation to jump as he did rather than plunge with the lorry. It is also not true from the clips that the lorry drove onto the ferry without being directed.

28. One cannot help agreeing with the submission by the plaintiff that it was an abdication of duty owed to ferry users and in particular the plaintiff for the coxswain to set assail at the time and juncture he did so. A watchful or careful coxswain aware that his duty is to help pedestrians and motorist cross the channel via the ferry is expected to ensure that all is aboard and the prow raised before he sets assail. The situation is not very different, with that in Katana Ngano vs Kamau Wakabi (supra), save that the judge was dealing with a bus driver on the road, where the judge said:-

“A prudent driver of a public vehicle should easily foresee that some passengers may be hampered by all sorts of factors, whether personal or otherwise, from speedily jumping into the vehicle; and so it behoves him to be patient and allow them enough time to safely get in the vehicle. He should ensure that all passengers are safely on board or have safely alighted before he drives from the stage”

29. I would replace the words driver with coxswain and stage with ramp and say that the duty of care as captured by Wambilyanga J, applied to the defendants’ coxswain but he failed to observe and discharge that duty of care to the plaintiff. His action was most unexpected of a reasonable coxswain if not outrightly reckless. I say reckless in that with just basic watchfulness from his tower, he ought to have seen that his continued sail away was inevitably leaving the lorry with no option but to plunge.

30. The clip discloses no attempt by the coxswain to engage a gear so as to direct the ferry back to the ramp so as to hold or push the vehicle from plunging into the deep sea. I do not profess expertise in matters sea transport and traffic but a reasonable person watching the clip and having used some of those ferries would come to the opinion that had the ferry been controlled so as to stop or move towards the ramp, the vehicle would have not plunged as it did. For the foregoing reasons I hold that the accident, resulting into the loss sued for, was wholly occasioned by the defendants coxswain’s negligence for which the defendant is vicariously liable. I hold the defendant liable at 100% to the plaintiff.

Did the plaintiff suffer any damage as a resultof the said accident?

31. The uncontroverted fact pleaded by the plaintiff is that the vehicle plunged into the sea and was submerged in water for some three days before it was salvaged at a cost. After being salvaged, it was damaged on all its critical aspects of a motor vehicle and the same required repair at the sum pleaded albeit it was reported constructive total loss.

32. To this court, the damage occasioned to the plaintiffs motor vehicle was a direct result of the wrongful acts of the defendant as found above and therefore any damages arising therefore must be seen as the natural result of the wrongs by the defendant’s coxswain. I do find, in the absence of any evidence that the motor vehicle was removed from the sea water intact and undamaged that it was damaged and therefore that damage was an injury to the plaintiff.

33. As much as the plaintiff produced an assessment report by Coast Accident & General investigations limited dated 15/5/2014 estimating the cost of repairs at 6,015,363, the same exhibit also assessed the constructive loss as Kshs.6,067,718 and in evidence, PW 2 said that ‘the vehicle could not be economically repaired, there would be no need to pay labour costs’.

34. With such evidence it would be illogical to award the costs of repairs when such repairs would not be economical. The prudent think is to consider the loss total subject to the salvage value. The same assessment report which I say has not been controverted nor shaken in cross examination, puts the pre-accident value at Kshs.5,800,000 with a salvage value of Kshs.1,000,000. As the plaintiff retained the salvage his actual loss can only be 4,800,000. That is the sum that would restitute his loss and which in fairness he must be awarded.

35. I award to the plaintiff the sum of Kshs.4,800,000 being the loss of motor vehicle as the same cannot be economically repaired. It would be uneconomic to repair because the cost of repairs far exceed the pre-accident value. To that sum the plaintiff equally gets the costs of salvaging the sunken lorry being the sum of Kshs.320,000. 00 in terms of the agreement dated 10/3/2014 between the plaintiff and Ms. Keya persona divers life savers.

36. Additionally, the plaintiff is entitled to the sum of Kshs.19,140 being the assessors fees paid to Coast Accident and General Investigations Ltd as detailed in the invoice dated 12/3/2014 and paid by the ETR receipt of the same date.

37. For the claim of USD 96,000, I find it to be of no merit on the basis that although pleaded, no credible evidence was led on it. Granted that the plaintiff produced a document headed “Madale Trucking Company Ltd Loss Report”, PW 2 said in evidence that the same was prepared by an accountant but signed by him. It is to me not an auditor’s report to reveal what loss had been incurred by the damage to the lorry by taking it off the road. In fact there is no evidence at all on how much the motor vehicle earned periodically to aid in calculation of the resultant loss.

38. Additionally that report makes a claim for Tzs 413,152,712 made up as follows:-

Loss of the truck - TZS 150,000,000. 00

Loss of the trailer - TZS 50,000,000. 00

Loss of income during follow up to

Mombasa-Kenya - TZS 4,000,000. 00

Loss of consignment of maize 33 tons - TZS 24,000,000. 00

Loss of income as a profit from the

Business since March 2013 - TZS 185,152,712. 50

TOTAL - TZS 413,152,712. 00

39. It is evident that the loss include the loss of motor vehicle and income from it, as well as loss of consignment. Having awarded to the plaintiff the loss of pre-accident value of the motor vehicle and trailer, it would be double compensation to award it here once again. I have equally said that there is a dearth of evidence on the loss of income for the use of motor vehicle, not even an attempt to put forth a tax return has been made. Essentially there is no evidence to prove that the company employed the lorry to generate income and that it did generate what income at what periodic intervals. Equally the claim for loss of consignment is a special damage claim that ought to have been not only specifically pleaded but ought to have been strictly proved. None of those legal requirements was met at all in that there was never a pleading nor proof. The result is that none of that claim has any merit and none can be awarded. It is dismissed.

Is the plaintiff entitled to general and exemplary damages?

(i) Exemplary damages

40. Also called punitive damages, exemplary damages are awarded as a show of detest by the court of the defendant’s conduct which is demonstratively and wantonly oppressive, malicious, violent or grossly reckless. They are also targeted to cast the defendant as an example to others not to act in similar a manner.

41. In this matter, the plaintiffs turnboy, PW 1, said that in his opinion the coxswain was accentuated by malice to punish the lorry and its crew for failure to pay a bribe of Kshs.100/=. In his witness statement he says the demand was made by a staff of the defendant. In his evidence in court however he said the demand was for Kshs.50/= and that the demand was by a police officer. I don’t find this evidence to be credible or consistent. It does not satisfy me to come to the conclusion that the coxswain maliciously undocked the ferry merely because the plaintiffs lorry crew had declined to pay the sum as a bribe whether at Kshs.100/= or Kshs.50/=.

42. As much as I have found that the coxswain actions were utterly negligent and not expected of a reasonable man in his position, I cannot assigned that negligence to the urge to revenge for failure by the plaintiff’s crew to comply with a demand for a bribe. On the evidence adduced, I am not convinced that an award for exemplary damages is warranted.

How about general damages?

43. As pleaded the plaint simply throws among his prayers, a prayer for general damages without any clarity on what damages those ought to be for. I however take it that the general damages sought are for the injury occasioned to the plaintiff found and consequent to the loss of the motor vehicle.

44. It cannot be gainsaid nor overemphasized that one would acquire a motor vehicle like the one sued upon, not for mere prestige or show off but for commercial purposes. Ideally losses arising out of use of such a chattel ought to be ascertainable with some degree of mathematic accuracy or approximation but there are also other damages that arise of necessity out of the wrongdoing by the defendant when it breached its duty of care to the plaintiff.

45. General damages are damages at large left for the discretion of the court to award and ascertain provided an injury is proved and provided further that such injury is the direct consequence of the defendants wrongful acts.

46. Having awarded to the plaintiff the loss of the motor vehicle, a sum I consider sufficient to restitute the plaintiff to the position it was before the loss, I would in awarding damages, which I am minded to do, consider that other award and the fact that it attracts interest. I also take into account the fact that sum may not be sufficient as of today to get for the plaintiff a replacement of the same type of truck and trailer. I therefore award to the plaintiff the sum of Kshs.1,000,000. 00 being general damages for breach of duty of care.

47. In summary, judgment is entered for the plaintiff against the defendant as follows:-

a) Special damages

i) Pre-accident value of the vehicle - Ksh.4,800,000. 00

ii) Cost of salvaging the vehicle for the sea - Ksh. 320,000. 00

iii) Cost of procuring assessment Report - Ksh. 19,140. 00

b) General damages for Breach of duty ofCare Ksh.1,000,000. 00

TOTAL - Ksh.6,139,140. 00

48. I also award to the plaintiff the costs of the suit together with interest. Interest on special damages shall attract interest at court rates from the date of filing suit till payment in full while general damages shall attract interest from the date of the judgment till payment in full.

49. It is so ordered.

Dated and delivered at Mombasa this 6th day of October 2017.

P.J.O. OTIENO

JUDGE