[2022] KEHC 14133 (KLR)

Mania & 2 others v Muthui (Civil Appeal 47 of 2019) [2022] KEHC 14133 (KLR) (16 September 2022) (Judgment)

Neutral citation: [2022] KEHC 14133 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal 47 of 2019

JN Njagi, J

September 16, 2022

Between

Pius Gichuhi Maina

1st Appellant

Dennis Wanyanga Wambugu

2nd Appellant

Patrick Njiiri Wanjohi

3rd Appellant

and

Wycliff Maina Muthui

Respondent

(Being appeal from the judgments and decrees of Hon. E. Angima, SRM, in Mukurwe-ini PMCC No. 34 of 2018 together with PMCC Nos. 52 and 53 of 2018 delivered on 4/7/2019)

Judgment

1. The appellants were involved in a road traffic accident involving a motor vehicle belonging to the respondent and a motor cycle that was being ridden by the 1st appellant. The 2nd and 3rd appellants were pillion passengers on the motor cycle at the time of the accident. The appellants brought a claim for damages against the respondent. In the case for the 1st appellant which was Mukurwe-ini PMCC NO.34 of 2018 the trial magistrate apportioned liability in the ratio of 90:10 in favour of the 1st appellant. In the case for the 2nd and 3rd appellants in Mukurwe-ini PMCC Nos 52 and 53 of 2018 the court apportioned liability in the ratio of 80:20 in favour of the said appellants. The appellants in the three cases were dissatisfied with the finding on liability and filed the instant appeal.

2. The grounds of appeal are that:(a)The learned magistrate erred in law and in fact in finding contribution against the plainttiffs when there was no evidence adduced to reach the said finding.(b)The learned magistrate erred in law and in fact in taking into account irrelevant factors and or failed to take into account relevant factors thereby misdirecting herself on the law of evidence arriving at the wrong conclusion on the matter for determination.

The Evidence 3. The 1st appellant stated in his evidence that he is a boda boda motor cycle rider at Gatura in Mukure-ini. That on the April 21, 2018 at around 10 pm he was on his way from Mukurwe-ini town to Gatura. He was carrying two pillion passengers, the 2nd and 3rd appellants. On the way he met with a motor vehicle coming from the opposite direction. The vehicle had left its correct lane and was occupying his lane. He moved off the road into the pavement and stopped. The vehicle followed him there and hit them. He was injured and lost consciousness. He later found himself in ICU at Nyeri PG Hospital. Thereafter the driver of the accident vehicle was charged with causing the said accident by careless driving. The driver admitted the charge and he was convicted. He sued the respondent for a claim of damages.

4. The 1st appellant called one witness in the case- PC Simon Kamau of Mukurwe-ini police station traffic base. The evidence of the witness was that he was at the police station when he received a report of the said accident. He and another police officer visited the scene of the accident. They found both the motor vehicle and the motor cycle at the scene. They marked the scene. On the following day they went back to the scene. He drew a sketch plan of the scene and took measurements. They towed the motor vehicle to the police station. They visited the motor cycle rider and his 2 pillion passengers at Mukurwe-ini Hospital where they were admitted. After investigations he found the driver of the motor vehicle to blame for the accident. He charged him in court with the offence of careless driving. He was convicted and was fined Ksh 10,000/=.

5. It was the evidence of PW2 that it is the motor vehicle that left its lane and hit the motor cycle. That the point of impact was almost off the road on the motor cycle`s lane.

6. The 2nd and 3rd appellants testified in their respective cases and gave similar evidence to that of the 1st appellant on how the accident occurred. The evidence of the witness for the 1st appellant, PW2, was adopted in their respective cases as evidence in the cases.

7. The respondent did not call any evidence in the case.

Judgment of the trial court – 8. The trial magistrate found that the accident occurred on the motor cycle rider`s lane. That the evidence of the motor cycle rider to that end was not challenged as the respondent did not tender any evidence in the case. The magistrate however found that the evidence of the motor cycle rider that he was hit while at the pavement was not supported by the police officer PW2 who in his evidence stated that the point of impact was almost off the road on the motor cycle rider`s lane, which meant that the rider had not moved off the road into the pavement as he claimed. The magistrate consequently blamed the motor cyclist for not having moved completely off the road to avoid the accident. She found that he contributed to the occurrence of the accident and assessed his contributory negligence at 10%.

9. On the two pillion passengers the magistrate held that the motor cyclist had broken the law by carrying 2 pillion passengers instead of one as required by the law. That it was the responsibility of the motor cycle rider to ensure that he was operating safely within the law for the better control of the motor cycle. The magistrate consequently entered judgment for the two appellants against the respondent at the rate of 20:80.

Submissions - 10. The appeal was canvassed by way of written submissions. The advocates for the appellants, Nderi & Kiingati Advocates, submitted that the accident occurred almost off the road on the side of the road occupied by the motor cycle rider. That the respondent did not rebut that evidence. That that version of the evidence was corroborated by the conviction of the respondent on a charge of careless driving.

11. Counsel further submitted that there was no evidence from which contributory negligence could be deduced on the part of the appellants. That it may be true that the rider may have been in breach of traffic rules but as long this breach did not contribute to the occurrence of the accident, it would be legally wrong to impute it as evidence of contributory negligence. Further that with the conviction on the offence of careless driving, it was not open, without more, for the trial court to make a finding of contribution.

12. The advocates for the respondent, Patrick Law Advocates, on the other hand submitted that the trial court found the respondent was 100% liable for the negligence of his driver. That the court was correct in apportioning liability to the motor cycle rider at 10% because he did not completely avoid the accident. That he carried excess passengers and thus could not effectively control the motor cycle. That the pillion passengers were also culpable for failing to take care of their own safety by boarding the motor cycle as two pillion passengers. That the court was correct in apportioning their liability at 20%. To support this proposition the advocates relied on the case of Rosemary Kaari Muriithi v Benson Njeru Muthitu & 3others [2020] eKLR where the court held that:This court finds that while the accident was caused by the appellant, the rider substantially also contributed to the attendant liability for which the appellant was ordered to shoulder. The question, I ask myself is whether it is proper to let boda bodas in general get away with impunity of illegality carrying excess pillion passengers. My answer to the question is in the negative. A rider who knowingly and deliberately breaks the law by carrying more pillion passengers than permitted by the law should be held accountable for his actions. In this instance, Kenneth Mwiti Mbuba was not held accountable for carrying excess passengers and should have shouldered more liability than 10% attributed to him by the trial court. I am also inclined to find that a person who voluntarily gets on a boda boda when he/she finds that there are more than one should equally be held accountable and hence culpable. To that end this court finds that the trial court apparently misdirected himself on that score and had he done so certainly he would have attributed more liability to the Respondent. I find that the appellant should have been found 60% liable and i hereby do find that the appellant was 60% liable while the respondents were 40% liable for either carrying excess pillion passengers or being excess pillion passengers and hence causing more liability to the appellant after the accident occurred.

13. Counsel consequently submitted that the trial court was justified in apportioning liability to the appellant and urged the court to dismiss the appeal with costs.

Analysis and determination 14. This being a first appeal the court is guided by principles that were re-stated by the Court of Appeal inThomas Nyawade v Richard Sule Odongo & 4 others [2015] eKLR that:The principles guiding the determination of appeals are now well settled. In a first appeal like this one, the appellate court is obliged to take the appeal as a re-trial. As such, it is required to re-evaluate the evidence on record and come to its own conclusions – Selle & another v Associated Motor Boat Co Ltd & Others [1968] EA 123. In doing so, however, the first appellate court should give allowance for the fact that as the trial court had the advantage of seeing and hearing the witnesses testify, it was better placed to observe their demeanour and assess their credibility. In the circumstances, the appellate court should be slow to overturn the trial court’s decision unless the trial court’s decision is perverse or is not based on the evidence or is based on a misapprehension of the evidence on record. Mwanasokoni v Kenya Bus Services Ltd, [1985] KLR 931.

15. The elementary principle of law is that he who alleges must prove. Section 107 of the Evidence Act provides thus: (1)“ whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

16. In Treadsetters Tyres Ltd v John Wekesa Wepukhulu (2010) eKLR, Ibrahim J. (as he then was) considered the question of burden of proof and stated as follows: -On question of proof, and burden thereof, it is stated in Charlesworth & Percy On Negligence, 9th edition at P.387:“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferior (?) and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.”

17. In this case the 1st appellant adduced evidence that the respondent`s vehicle left its side of the road and hit his motor cycle when he, the motor cyclist, was on the extreme end of his side of the road. This evidence was corroborated by the two pillion passengers when they testified in their respective cases. The police officer who visited the scene found the motor vehicle and the motor cycle on the scene and confirmed that it is the motor vehicle that had left its side of the road and hit the motor cycle. He found the point of impact to have been almost at the end of the road on the motor cycle rider`s side. The driver of the motor vehicle was taken to court with charges of careless driving. He was convicted and fined.

18. It was clear from the facts of the case that the driver of the motor vehicle is the one who was to blame for veering off from his side of the road and hitting the motor cycle. While the trial court made a finding to that end, it all the same blamed the motor cyclist for not moving out of the road completely to avoid the accident. The question is whether the motor cyclist contributed to the occurrence of the accident.

19. InKennedy Macharia Njeru v Packson Githongo Njau & another [2019] eKLR, Gitari J. held as follows on the issue of contributory negligence:In determining liability the court must consider the facts of the case and come to a conclusion as to what mostly contributed to the cause of the accident. The court will consider the manner of driving, identify the person who was at fault and place the blame on him. Where the facts and circumstances are such that it is not clear who was at fault and who was to blame, the court will apportion liability.

20. In this case it was clear that it is the driver of the motor vehicle who left his side of the road and caused the accident. The respondent did not adduce evidence in the three cases and therefore the appellants` evidence on how the accident occurred was unchallenged. The fact that the policeman PW2 said that the point of impact was almost at the edge of the road and the motor cyclist said that it was off the road on the pavement does not remove the fact that the accident occurred on the motor cyclist`s side of the road, either at the edge of the road or off the road. Either way, it shows that the motor cyclist had done all he could to avoid the accident. In my considered view he did not contribute to the occurrence of the accident. I find that the trial court erred in making a finding that the motor cycle rider had contributed to the occurrence of the accident. The liability apportioned to the 1st appellant of 10% is therefore set aside and the respondent found to be 100% liable for the accident as regards the 1st appellant.

21. The other question is whether the 2nd and 3rd appellants were liable in negligence. As pillion passengers, the 2nd and 3rd appellants had no control of the motorcycle and could not have done anything to avoid the accident. However, the Traffic Act bars motor cycles from carrying more than one passenger at a time. The two appellants agreed to be carried as excess passengers on a motor cycle in breach of the law. They were therefore guilty of failing to take care of their own safety by boarding the motor cycle as 2 pillion passengers. They ought to shoulder some blame for their conduct. They voluntarily assumed the risk in case of an accident for which they are liable. The doctrine of volenti non fit injuria was applicable in their case. I find that the trial court did not err in apportioning liability between the respondent and the 2nd and 3rd appellants.

22. The upshot is that the there is merit in the appeal by the 1st appellant. The finding on liability by the trial court on the 1st appellant is set aside and the respondent is accordingly found 100% liable for the accident in respect to the 1st appellant. Costs of the appeal to go to the 1st appellant.

23. On the other hand, there is no merit in the appeal by the 2nd and 3rd appellants and their appeal is dismissed with costs to the respondent.

24. Orders accordingly.

Signed this 16th day of September 2022.

J. N. NJAGIJUDGEDelivered, dated and signed at NYERI this 19th day of October , 2022. ByHON. JUSTICE M. MUYAJUDGEIn the presence of:Ngatia Absent: for AppellantsMacharia: for RespondentCourt Assistant: Kinyua.30 days R/A.