[2019] KEHC 6280 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CIVIL APPEAL NO. 11 OF 2017

MAIMUNA KILUNGYA.........................APPELLANT

-VERSUS-

MOTREX TRANSPORTERS LTD.....RESPONDENT

(Being an Appeal from the Judgment of Hon. E.M Muiru (SRM) in the Principal Magistrate’s Court at Makindu, Civil Case No.98 of 2015, delivered on 15th April 2017)

JUDGMENT

1. The Appellant filed a suit in the lower court seeking general damages for personal injuries sustained from a road accident on 17/04/2014 along the Mombasa-Nairobi road. She also prayed for special damages, costs of the suit and interest.

2. The Respondent denied the claim through its statement of defence. The matter was finally heard and dismissed by the trial magistrate.

3. Aggrieved by the decision, the Appellant filed this appeal and listed 7 grounds stating that the learned trial magistrate erred in law and fact by;

a) Finding that the Appellant was wholly liable for the injuries sustained in the accident.

b) Finding and holding that the Respondent was not to blame for the cause of action although the Respondent did not tender any evidence.

c) Ignoring the evidence of the Appellant and wholly relying on issues not raised by the defence.

d) Attempting to make a low award had the Appellant proved her case based on the injuries sustained.

e) Relying on a distinguished authority from the present case and also ignoring the evidence tendered by the Appellant and her witnesses.

f) Relying on assumptions and evidence not tendered by anyone in court and further ignoring the principle of vicarious liability.

g) Failing to consider the principles of natural justice.

4. A summary of the evidence before the subordinate court is that the Appellant boarded the Respondent’s vehicle registration no. KBR 942Q on 17th April 2014 as a lawful passenger. She paid the driver for his ride. The driver drove the vehicle at high speed, carelessly and negligently and he lost control and hit an oncoming vehicle. The vehicle veered off the road and hit some trees. As a result, she sustained injuries to the neck, left ear and left shoulder. She was treated at Makindu District Hospital (P EXB1) and discharged.

5. The matter was reported to the police and she was issued with a P3 form (P EXB2) and a police abstract (P EXB3). She produced a demand letter and statutory notice (P EXBa and b). She also produced a medical report by Doctor Kimuyu who examined her on 13th October 2014 (P EXB5a).

She was charged Kshs.2,000/= (P EXB 5b) for the report. She also produced a copy of records, (P EXB 6).

6. The Appellant admitted that she was not the Respondent’s employee, and that the offending vehicle was a transit vehicle. She denied seeing any warning on the door denying unauthorized passengers access. That they were six passengers plus the driver in the vehicle.

7. PW2 No. 64932 PC James Kingoriproduced the police abstract (P EXB 3) in respect to the motor vehicle KBR 942Q/ZD 8853 Mercedes Benz and motor vehicle CE 552D/CE 555D make Actros and KBR 265C/ZD 8345 Mercedes Benz. He blamed the driver of motor vehicle KBR 942Q/ZD for the accident and charged him with careless driving contrary to Section 49 of the Traffic Act.

8. Doctor Judith Kimunyu (PW3) examined the Plaintiff and produced a medical report in respect to that examination (P EXB2). She examined her six (6) months after the accident. She confirmed that though she still experienced some pain she was sure she would recover fully. This was on 5th April, 2016 when she testified.

9. The Respondent did not adduce any evidence.

10. Parties through their advocates filed written submissions in disposal of the appeal.

The Appellant’s Case

11. On liability, Mr. Mukua Makau for the Appellant submitted that the Respondent did not call any witness to demonstrate that the driver’s act of carrying her was outside the ordinary course of his employment. She concedes that the defence had an averment to the effect that the door of motor vehicle registration No. KBR 942Q/ZD 8853 (the motor vehicle) had instructions restricting admission of

unauthorized passengers. She however contends that this averment was not substantiated and that her evidence denying the existence of those instructions was not challenged.

12. He relied inter alia on HCCC No. 79 of 2011; Linus Nganga Kiongo –vs- Town Council of Kikuyu where Justice Odunga expressed himself as follows on failure to adduce evidence:

“What are the consequences of a party failing to adduce evidence? In the case of Motex Knitwear Ltd –vs- Gopitex Knitwear Mills Ltd Nrb (Milimani) HCCC No. 834 of 2002, Justice Lessit, citing the case of Autar Singh Bahra & Anor –vs- Raju Govindji, HCCC NO 548 of 1998 stated;

“Although the defendant has denied liability in an amended defence and counter claim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence and counter claim are unsubstantiated. In the circumstances, the counter claim must fail.”

13. He also relied on CMC Aviation Ltd –vs- Cruisair Ltd. (No. 1) (1978) KLR 103 (1976-80)1KLR 835 where Madan J (as he then was) expressed himself as follows;

“Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or

otherwise, they remain unproven. Averments in no way satisfy, for example, the definition of ‘evidence’ as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.”

14. He submitted that the authority relied upon by the learned trial magistrate, to wit Nakuru Civil Appeal No. 186 /09; Tabitha Nduhi Kinyua –vs- Francis Mutua Mbuvi & Anor, was distinguishable in that, the Nakuru case had a witness who testified that the driver was prohibited from carrying unauthorized passengers.

15. On quantum, he argued that the award of Ksh.100,000/= proposed by the learned trial magistrate was low considering the injuries sustained. He proposes an award of Kshs 150,000/= and relies on Kakamega HCCA No. 29/12 Channan Agricultural Contractors Ltd –vs- Fred Barasa Mutayi where a similar award was made for a blunt injury to the chest and head and cut wound to the left leg.

The Respondent’s Case

16. Mr. Timamy for the Respondent submitted that the Respondent’s driver was acting outside the scope of his employment by turning the motor vehicle into a public service vehicle and that he is solely liable for the injuries sustained by the Appellant. It was his further submission that the learned trial magistrate did not find it liable for the accident but blamed it’s driver and made a finding that he was acting outside his scope.

17. Counsel submitted that the Appellant’s evidence was enough to absolve the Respondent from any liability.

18. On quantum, he submitted that the Appellant sustained soft tissue injuries which would sufficiently be compensated by an award of Ksh.50,000/=. He relied inter alia on the following cases;

a) Shalimar Flowers Ltd –vs- Noh Muniango Matianyi (2011) eKLRwhere the court awarded Ksh.50,000/= for soft tissue injuries.

b) Josephine Angwenyi –vs- Samuel Ochillo (2010) eKLR where Kshs.70,000/= was awarded for soft tissue injuries.

c) Mokaya Mochama –vs- Julius Momanyi Nyokwoyo (2013) eKLR where Kshs.70,000/= was awarded for soft tissue injuries.

d) Eastern Produce (K) Ltd –vs- Joseph Mamboleo Khamadi (2015) eKLRwhere Kshs.50,000/= was awarded for soft tissue injuries.

19. It was his further submission that the learned trial magistrate addressed her mind appropriately and urged this court to dismiss the appeal for lack of merit.

Determination

20. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach it’s own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. See the case of Selle & Anor –vs- Associate Motor Boat Co. Ltd 1968 EA 123.

21. Having considered the grounds of appeal, the rival submissions and the entire record, it is my considered view that the following issues arise for determination;

a) Who was to blame for the accident and to what extent?

b) What quantum of damages, if any, is payable to the Appellant?

Issue no (a) who was to blame for the accident and to what extent?

22. It is not disputed that an accident involving the motor vehicle occurred on 17/4/2014 (material day), and that the motor vehicle belonged to the Respondent. It is further not disputed that the driver was it’s employee and that the Appellant was in the motor vehicle at the time of the accident.

23. The Appellant’s evidence is clear on what she admitted and what she denied.

24. In dismissing the Appellant’s case, the learned trial magistrate held that there was an admission from the Appellant that the motor vehicle was a transit vehicle. She took judicial notice that transit vehicles are not designated to carry unauthorized passengers and the Appellant should not have boarded it. Accordingly, she found no basis to hold the Respondent vicariously liable.

25. The question which arises at this juncture is whether the Respondent was vicariously liable or not. In Securicor Kenya Ltd. –vs- Kyumba Holdings Ltd., - Civil Appeal No. 73 of 2002,the Court of Appeal defined the doctrine of vicarious liability by quoting

with approval a passage from Winfield and Jolowicz on Tort 14th Ed.

“The doctrine may be stated as follows: -

Where A, the owner of a vehicle expressly or impliedly requests or instructs B to drive the vehicle in performance of some task or duty carried out for A, A will be vicariously liable for B’s negligence in the operation of the vehicle.”Also see what the court of appeal stated in Kenya Bus Service Ltd –vs- Kawira C.A No. 295 of 2000; Pritoo –vs- West Nile District Administration (1968) E.A 428.

26. In this case, it is evident that there existed a master-servant relationship between the Respondent and it’s driver. The Appellant pleaded negligence on the part of the driver and testified that the motor vehicle was driven fast causing it to hit two vehicles and to veer off the road into the trees. The police abstract which was produced by PW3 shows that the driver was charged with careless driving. I find that there was sufficient proof on a balance of probabilities that the accident was caused by the driver’s negligence.

27. In its defence, the Respondent stated that there were instructions on the motor vehicle’s door to the effect that unauthorized passengers were not allowed access. As such, it contends that the Appellant voluntarily assumed the risk. The Respondent did not call any witness. I am in agreement with the holding in the CMC Aviation Ltd case (supra) that pleadings remain mere averments until they are proved/disproved.

28. I have looked at the case of Tabitha Nduhi Kinyua –vs- Francis Mutua Mbuvi & Anor; Nyeri Civil Appeal No. 186 of 2009 and I agree with the Appellant that indeed it is distinguishable from this case. In the Tabitha Nduhi Kinyua case, evidence was adduced to show that the driver had acted beyond the scope of his employment by giving a lift to the plaintiff.

29. My considered view is that, the burden of establishing the driver’s scope of employment and any limits to such scope was on the Respondent. This burden was not discharged and I find that it was speculative for the learned trial magistrate to take judicial notice. There was nothing placed before the court to show that unauthorized passengers were not allowed into the vehicle, and that such instructions were known to the Appellant.

30. I noted that in the submissions before this court, the respondent blames the driver for the injuries sustained by the Appellant. It is indeed an afterthought because clearly, that was not it’s position before the trial court and even if it was, the Respondent could have taken out third party proceedings against its driver.

31. From the forgoing, I find that the Respondent’s driver was wholly to blame for the accident and the injuries caused to the Appellant. Nothing was placed before the court to absolve the Respondent from any vicarious liability. I therefore find it was 100% vicariously liable for its driver’s negligence.

Issue No. (b) – What quantum of damages, if any, is payable to the Appellant?

32. The medical report produced by Dr. Kimuyu Judith (PW3) shows that the appellant sustained a blunt neck injury, blunt injury left shoulder and bruises on the left ear. In her testimony, she opined that the appellant would recover fully. Evidently, these are soft tissue injuries. The Appellant proposed Kshs.150,000/= and the Respondent proposed Kshs.50,000/=. The learned trial magistrate opined that she would have awarded Kshs.100,000/= because the injuries were of a minor nature. I have considered the injuries and the authorities submitted by the parties. The Appellant was examined way back on 13th October, 2014 and PW3 stated that she would recover fully. I am convinced she has fully recovered as her injuries were of a soft tissue nature. I find that an award of Kshs.125,000/= is reasonable and fair.

33. I find that the appeal has merit and I allow it.

a) The order by the subordinate court dismissing the Plaintiff’s case is set aside and substituted with an order entering judgment for the Appellant in the sum of Kshs.125,000/= (One hundred and twenty five thousand shillings.)

b) The Appellant is awarded costs in the lower court and the High Court.

Orders accordingly.

DELIVERED, SIGNED AND DATED THIS 26TH DAY OF JUNE, 2019 IN OPEN COURT AT MAKUENI.

………………………..

H. I ONG’UDI

JUDGE