[2022] KEHC 14046 (KLR)

Manyoli v Omuka & another (Civil Appeal 57 of 2019) [2022] KEHC 14046 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14046 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 57 of 2019

SN Riechi, J

October 7, 2022

Between

Margaret Nabwile Manyoli

Appellant

and

Obadia Omuka

1st Respondent

Silas Chepkwony

2nd Respondent

(Being an appeal from the Judgement and Decree of Hon. E. Mwenda, SRM in Bungoma CMCC No. 462/2008 delivered on 17/6/2019)

Judgment

1. The facts leading up to the institution of the suit as pleaded in the plaint are that on the March 2, 2008, the appellant was aboard motor vehicle registration number KAR 325Q as a fare paying passenger when at Makhese area along the Webuye-Kitale road, the driver negligently managed the said motor vehicle that it collided with another motor vehicle registration number KAW 179B whereupon she sustained fracture on both legs and a fractured right forearm. She thus sought special and general damages from the respondents.

2. The 1st respondent filed his statement of defence denying the appellant’s claim and attributed the occurrence of the accident, if any, to the negligence of the owner and or driver of KAW 179B who was later joined in the proceedings as the 2nd respondent.

The evidence at the trial briefly was as follows; 3. PW-1, Salome Nanjala, a Clinical Officer from Lugulu Mission Hospital stated that the appellant was admitted in the facility from 2nd to 7th March, 2008 after being involved in a road traffic accident and presented with fractured right and left tibia. She produced the discharge summary.

4. PW-2 Margaret Nabwile Manyololi stated that she was aboard motor vehicle registration number KAR 325Q which collided with motor vehicle registration number KAW 179P whereupon she lost consciousness, she was admitted and treated at Lugulu Mission Hospital. She stated that the motor vehicle she was travelling in was speeding.

5. PW-3, Dr Mulianga Ekesa examined the patient and prepared the medical report which was produced into evidence.PW-4, PC Rispah Wangui stated that the driver of the vehicle KAW 179B was charged with the offence of careless driving. That the appellant was issued with an abstract which she produced into evidence.

The respondent did not call any witness and his case closed. 6. Silas Chepkwony testified for the third party. His evidence was that the motor vehicle registration number KAW 179B was not his and was not aware of the accident.After reviewing the evidence on record, the learned trial magistrate found that the appellant had not proved her case to the required standards and dismissed the suit. The appellant was dissatisfied thus this appeal anchored on the following grounds;1. The learned trial magistrate erred in law and fact in holding that the appellant had failed to prove her case on a balance of probability in the case of clear and cogent evidence that the accident was caused by the respondents.2. The learned trial magistrate did not bring his mind to bear judiciously on the burden, standard and incidence of proof in civil proceedings and fell short of elevating it to proof of beyond reasonable doubt.3. The learned trial magistrate erred in law and in fact by holding that the appellant failed to establish a prima facie case against the 1st respondent’s driver on liability without considering the fact that the 2nd respondent was enjoined into the suit as a third party.4. The learned trial magistrate erred in law and fact by failing to establish and make decision on who was vicariously liable in the cause of the said accident between the respondents.5. The learned trial magistrate erred in law and fact in absolving the respondents totally from liability for the said accident against the weighty evidence on record.6. The learned trial magistrate erred in law and fact by failing to hold either the 1st respondent or the 2nd respondent liable for the accident.7. The learned trial magistrate erred in law and fact when he failed to employ the civil law principles of balance of probability hence his finding was triggered by bias.

7. The appeal was disposed of by way of written submissions. The appellant and the 2nd respondent complied.The appellant submits that the 2nd respondent cannot deny being the owner of motor vehicle registration number KAW 179B as confirmed by the abstract and the mere denial that he is not the owner does not hold water. The authority in Muga Opija v East Africa Sea Food Limited Civil appeal 309 of 2010 has been cited in support.

8. On whether the respondents were vicariously liable for the accident, counsel submits that for vicarious liability to apply, one has to establish; employer-employee relationship, tort committed by the employee and in the course of business. That in the circumstances, motor vehicle registration number KAR 325Q was being driven by the 1st respondent’s driver. As regards KAW 179B, it was established that it was being driven by oner Peter Ngetich who must be taken to be the 2nd respondent’s driver in the absence of evidence to the contrary.

9. It is counsel’s submission that the particulars of negligence were pleaded and satisfied under paragraph 4 of the plaint which facts when established, the defendant was duty bound to rebut them as established in Embu Public Road Services LtdvsRiimi (1968) EA 22. That in the instant case, the respondents did not call any evidence to rebut the negligence attributed to them.It is further submitted that it is not merely enough for the police officer to state that since the police preferred charges does not proof that one is negligent.

10. On the issue of quantum, counsel submits that the appellant proved the limb of special damages to the required standards both as pleaded and in testimony before the trial court. With regard to general damages, counsel submits that the amount sought in the sum of Kshs 3,000,000/= was reasonable where permanent disability was assessed at 18%.The 2nd respondent on his part submits that he was wrongly joined to the proceedings for the reason that the police abstract produced did not have his name and that the records from the registrar of motor vehicles were not produced showing who the owner of motor vehicle registration number KAW 179B was. That the 1st respondent did not testify in court leaving the testimony of the 2nd respondent unchallenged. Reliance has been placed in the case of Sammy Ngigi MwauravJohn Mbugua Kagai & another(2006)eKLR.This being a first appeal, the court is called upon to re-evaluate and subject the evidence to a whole new scrutiny in order to arrive at its own conclusion and giving due allowance for the fact that it did not see the witness testify. The principle was succinctly captured in Selle &another v Associated Motor Boat Co Ltd &others [1968] EA 123, where the principle was enunciated thus;...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...

11. Having perused the evidence on record, it is clear to this court that an accident did occur on the said date involving the motor vehicles afore stated. The appellant sustained injuries captured by the trial magistrate. The dispute arises as to the culpability of the respondents. The appellant attributed the accident to the 1st respondent’s driver who in turn issued a third party notice to the 2nd respondent who is said to be the registered and or beneficial owners of motor vehicle registration number KAW 179B.

12. During the trial, the third party testified that he is not the said Silas Chepkwony. He distanced himself from the ownership of the said motor vehicle. I have perused the entire record and cannot find evidence that the motor vehicle is indeed registered in the name of the 2nd respondent. the closest document showing ownership of the said motor vehicle is the police abstract which indicates the owner as Peter Ngetich who is not a party to the suit.

13. I have similarly perused the evidence of PW-2, the appellant and contrasted it with that of PW-4, the police officer and it is clear that their respective account of how the accident occurred are at variance. The appellant states that the motor vehicle she had boarded was speeding and hit KAW 179B which was on its lane. She thus absolved the 2nd respondent from blame. PW-4 on her part stated appeared to have laid blame on the driver of Motor vehicle registration number KAW 179B where the driver was thereafter charged. She confirmed that she had witnessed the accident as she was not yet in the service and therefore not the investigating officer.

14. The question that ought to be addressed at this juncture is whether on the totality of the evidence on record, the respondent were responsible for the accident having in mind the provisions of the Evidence Act, cap 180 and the case law on the burden of proof. The relevant provisions on the topic are to be found in sections, 107, 108, and 109 of cap 80 reproduced here below;(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.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

15. As to whether the appellant discharged the burden of proof as stated above, it was held inRaila Amolo Odinga &another v IEBC & 2others (2017) eKLR that: -(132)Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.

16. In the instant case, having found that the appellant’s evidence was at disparity, the issue then is; did the burden shift to the respondents to disprove; liability and ownership of the motor vehicles that caused the accident? The answer to the above question is in the negative from the onset because the issue of liability could not be agreed upon by the appellant and her witnesses as to who specifically caused the accident.

17. As regards ownership of the motor vehicle registration number KAW 179B, the lower court record does not bear any document linking the 2nd respondent with the ownership of the vehicle either by registration or beneficially as required by section 8 of the Traffic Act which states;The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.

18. In the circumstances, the appellant failed to establish as required by law that motor vehicle registration number KAW 179B belonged to the 2nd respondent with the result that in the absence of such proof, her case fell short of the minimum threshold required of her by the law.

19. Having analyzed the record and the law as discussed in the preceding paragraphs, I find no reason to interfere with the learned trial magistrate’s finding with the result being that the appeal is dismissed with costs to the respondents.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N. RIECHIJUDGE