[2022] KEHC 1529 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 489 OF 2019

MIRIAM MIRINGU..............................................................1ST APPELLANT

SIPROSE ODHIAMBO.......................................................2ND APPELLANT

VERSUS

RUNA TRAVELLERS SACCO LIMITED..........................RESPONDENT

(Being an appeal against the judgment decree of Hon. D. O. Mbeja (Mr.) SRM, dated and delivered on 24th July 2019 in Milimani CMCC No. 5476 of 2016)

JUDGMENT

1. At the onset, the respondent herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 16th August, 2016 pursuant to a road accident on 25th November 2015 along Thika Super Highway and sought for reliefs against the appellants in the nature special damages plus costs of the suit and interest thereon.

2. The respondent pleaded in his plaint that on or about 25th November 2015 the respondent's motor vehicle KBX 659P was lawfully being driven along Thika Road when the 2nd Appellant recklessly drove motor vehicle KAL 438M, causing an accident hence causing damages to the Respondent's vehicle, which was extensively damaged, putting them at a loss on account of its repairs.

3. The appellants filed their statement of defence denying the entire claim. The matter proceeded for hearing and judgment was eventually delivered in favour of the respondent in the sum of Kshs.912, 550/=.

4. The appellants being aggrieved preferred this appeal and put forward the following grounds:

a. That the learned trial magistrate erred in law and fact in finding the Appellants wholly liable for the accident.

b. That the learned Trial Magistrate erred in law and fact in failing to consider and find that Respondent’s driver was guilty of contributory negligence.

c. That the learned Trial Magistrate erred in law and fact in failing to fully consider and appreciate the evidence of the Appellant’s driver and thereby reached a wrong conclusion on liability.

d. That the learned Trial Magistrate erred in law and fact in failing to carefully analyze the Respondent’s evidence on quantum and find that the claim for special damages was not proved to the required standard.

e.That the learned Trial Magistrate erred in law and fact in failing to consider and appreciate the Appellant’s submissions.

5. Directions were given that the appeal be canvassed by way of written submissions. Accordingly, the parties complied and filed their respective submissions.

6. On the issue of liability the appellants submitted that it is not enough to claim that an accident happened; negligence must be proven to establish culpability on the side of the defendants, which was not done, and that the Respondent's driver was entirely to fault for the accident, as they had argued in the trial court.

7. The appellants contend that PW1 had testified that he was neither the investigating officer and could not access the file with sketch maps or the inspection report and testified that the service lane is a dual carriage with a left and right lane.

8. She further contended that PW2 the driver of the Respondent’s motor vehicle KBX 659 P testified that he was on the service lanewhich had two lanes at the time of the accident.

9. The appellants submitted that John Thiga (DW1) during examination in chief, cross-examination and re-examination testified that he was driving on the right side of the service lane and that PW2 was on his left but suddenly encroached onto his lane causing the accident.

10. On the issue of quantum, the appellants submitted that the appellate court must be satisfied that either the trial judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one or that the awarded amount is inordinately high or inordinately low or that it must be wholly erroneous estimate of the damage.

11. On special damages the appellants cited the case Hahn v Singh Civil Appeal No.42 of 1983 (1985) KLR 716 AT P.717 ANN 721 where the Learned Judges of Appeal held that Special damages must not only be specifically claimed but also strictly proved.

12. The appellants contend that the plaintiff claimed (respondent) a total of Kshs.912,550/= as special damages and was awarded the same. The appellants further contended that the sum of Kshs.550/= allegedly being search fee remitted to NTSA was not proved as no receipt was produced by the respondent in support of the claim.

13. It is the appellants submissions that the respondent had claimed that the motor vehicle KBX 659P was in the garage for one hundred and fifty two days however could not produce any evidence to back this claim and the Respondent’s operations manager during cross-examination informed the court that the estimated period of repair was 21/2 weeks.

14. The appellants pointed out that the worksheets produced by the Respondent had glaring inconsistencies and numerous alterations exaggerating the earnings as the same also did not reflect wear and tear if at all the Respondent’s used to earn Kshs.6,000/= per day .The appellants therefore submit that wear and tear would have amounted to averagely Kshs.2,000/=per day leaving the respondent with an income of Kshs.4,000/=per day.

15. The appellants submit that had the respondent proved his claim on liability against the appellants and with the estimated and proved period of repair being 21/2 weeks, the loss of earnings would have translated to Kshs.70,000/= i.e Kshs.4,000 per day x 17. 5 days).

16. In retort, the respondent on the issue of liability submitted that PW1 attended court pursuant to summons dated 11/12/2018, the witness was summoned for purposes of producing the police abstract relating to police abstract relating TC/1/20/Vol.11/2015 and the O.B to support the contents of the same.

17. The respondents further submitted that having produced the police abstract to support the entry in the O.B, the burden shifted to the appellants to adduce evidence and produce documents to rebut the evidence adduced by the respondent.

18. The respondent relied on the case of Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh (2021) eKLR

“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?”

19. The respondent contends that PW2 in examination in chief hadtestified that he was travelling from Ruiru to Nairobi and was hit from behind, he did not merely testify that an accident occurred but also testified on the circumstances under which the accident occurred and his reasons for blaming the defendant’s driver.

20. On the issue of quantum, the respondent submitted that the sum of Kshs.550/= being search fees remitted to NTSA was proved however the plaintiff produced the Motor vehicle search certificate and went further and invited the court to take judicial notice that the NTSA charges Kshs.500/= for the certificate and 50/= service fee totaling to Kshs.550/= for the certificate.

21. The respondent submitted that PW4 Mr. Erastus Mbaka testified he works as a legal officer at CIC insurance company had stated that the vehicle was available for the insured on 1/4/2016 while producing the release letter Exh 13 and the accident occurred 25/11/2015 as PW3 and PW4 stated that the vehicle was in the garage undergoing repairs.

22. The respondent further submitted that PW3 testified that it took 152 days for the vehicle to be repaired and that under re-examination that some of the spares were not available in the market at Toyota Kenya and had to be imported.

23. The appellant had submitted that PEX 10 had glaring inconsistencies and numerous alterations exaggerating the earnings, the respondent on the other hand has submitted that they produced records of daily worksheet and bank statements issued by the Co-operative bank to support the claim and the trial court which analyzed the evidence found the claim to have been proved.

24. On the issue of lost earnings, the respondent submitted that PW3 had testified that the accident vehicle earned Kshs.6,800/= Kshs.7000/= and in the circumstances the figure in the award averaging Kshs.6000/= daily taking into account ware and tare is a fair reasonable award.

25. The respondent further submitted that the court cannot rely on speculations of the earnings as suggested by the appellant in the submissions of the sum of Kshs. 4,000/= as the appellants has not sought or obtained leave to adduce new evidence and even if he had he cannot adduce such in submissions. The appellants are tied to what was before the trial court on matter of facts.

26. This is a first appeal and this court has a duty to re-examine and re-evaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and give an allowance for that. See: Selle V Associated Motor Boat Company Limited, [1968] EA 123.

27. I have considered the contending submissions and authorities cited on appeal. I have likewise re evaluated the material placed before the trial court. I find two issues falling for determination namely;

i. Whether the appellants were 100% liable for the accident.

ii. The issue of quantum

28. On the issue of liability, the appellants were of the view that PW2 the driver of the respondent motor vehicle KBX 659P testified that the he was on the service lane at the time of the accident but could not tell the exact lane.

29. On cross examination the PW2 stated that he had not let off any passengers at clay works and that his vehicle was on the rightside of the road.

30. PW2 also gave out the circumstances under which the accident occurred, he testified that he was driving behind another vehicle which slowed down and had to slow down too and stop and that was when the defendant’s vehicle rammed into his rear. This evidence was supported by PW3 the operations manager of the respondent, who testified that he went to the scene of the accident immediately after being notified of the accident and found the vehicles intact at the scene of the accident.

31. PW1 testified that the officer who had visited the scene of accident and has since been transferred to Mombasa, and according to the OB blamed the appellant’s vehicle for having rammed into the rear of the respondent’s vehicle.

32. The appellants driver testified that vehicles that were ahead of him as he was approaching them, he started moving and encroached on his lane he hooted and applied emergency brakes but it was too late. On cross examination he admitted that there was no bus stop at the scene of accident and that he was driving behind the respondent’s vehicle.

33. DW1 was under the duty to be careful having been the one driving behind the other vehicles and being intent on overtaking the vehicles ahead of him. The appellant did not call any witness to support his allegations.

34. After considering the evidence, the trial court was satisfied thatthe 1st appellant was wholly liable for causing the accident at 100% and I am in agreement with the trial court’s decision on the same.

35. On the issue of quantum, the appellants submitted that the sum of Kshs.550/= for the NTSA search fee had not been proved or receipt produced. The appellants further stated that the vehicle was in garage for 152 days and did not produce the evidence for the same as the respondent’s operation manager during cross examination informed the court that the estimated period was 21/2 weeks. That the respondent had claimed a total of Kshs.912,550/= as special damages.

36. The respondent on the other hand, on the issue of the NTSA search fee submitted that PW1 produced the motor vehicle search certificated which they stated that it a matter of public knowledge and invited the court to take judicial notice charges Kshs.500/= for the certificate and Kshs.50/= service fee a total of Kshs.550/= for the certificate.

37. The respondent contends that PW4 Mr. Erastus Mbaka who is the legal officer in CIC insurance Company stated that the vehicle was available for the insured on 1/4/2016 and produced the release letter. Further to the PW2 AND PW3 had stated that the vehicle was in the garage undergoing repairs to about 1st April 2016 and the accident occurred on 25th November 2015 which brings us to 152 days.

38. The Operations manager of the respondent (PW3) indicated that the accident vehicle earned Kshs.6,800/= to Kshs.7000/= and in the circumstances the figure in the award was Kshs.6000/= taking into account possible ware and tare is fair.

39. In the trial court the Learned Magistrate in his judgment indicated he had considered the P.S.V daily worksheets filed and account statements for the period starting 1/10/15 and ending 2/11/2015 reflective of the respondent’s earnings on average which I also support and am satisfied that the respondent had established a prima facie case against the appellants on a balance of probabilities.

40. I rely on the Court of Appeal case of Nkunene Diary Farmers Co-operative Ltd and Another -vs- Ngacha Ndeyia(2010)KLRwhere the Court of Appeal held:-

“that special damages in material damage claims need not be shown the extent of the damage and what it would cost to restore the damaged items to bring it as near as possible to the condition before the accident.”

41. I am persuaded and bound by the above holding.

42. Accordingly, I find no basis to interfere with the trial Magistrate’s decision on being satisfied that the respondent suffered loss as a result of the accident and established a prima facie case against the appellants on a balance of probabilities and awarding them the special damages of Kshs.912,550/= . which is reasonable in my view.

43. The upshot is that the awards made by the trial magistrate should not be disturbed.

44. The Appeal has no merit, the same is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

…….….……………..

J. K. SERGON

JUDGE

IN THE PRESENCE OF:

……………………………. FOR THE 1ST APPELLANT

……………………………. FOR THE 2ND APPELLANT

……………………………. FOR THE RESPONDENT