[2022] KEHC 17115 (KLR)

Mohamed v Muchomba (Civil Appeal 53 of 2019) [2022] KEHC 17115 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17115 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal 53 of 2019

AC Mrima, J

December 8, 2022

Between

Hanif Mohamed

Appellant

and

Benson Githeru Muchomba

Respondent

(Being an Appeal arising out of the judgment and decree of Hon. C.M. Kesse (Principal Magistrate) in Kitale Chief Magistrate’s Court Civil Case No. 36 of 2017 delivered on 03/12/2019)

Judgment

Introduction: 1. The appeal subject of this judgment is not complex. It mainly sought to ascertain whether there existed a transport contract between the parties herein and whether the Appellant herein, Hanif Mohamed, was liable for the safety and eventual delivery of the Respondent’s goods from Kitale to Nairobi.

2. The Appellant was the Defendant in Kitale SPMCC NO. 36 of 2017; Benson Githeru Muchomba v Hanif Mohamed (hereinafter referred to as ‘the suit’). The suit was centered on the fact that the Respondent’s goods were collected at Kitale for delivery in Nairobi, but that did not come to pass.

3. The suit was fully heard and judgment rendered on 3rd December, 2019. The suit was allowed (as prayed) at Kshs. 1,024,000/= with costs and interest.

4. The instant appeal, therefore, arose out of the said judgment.

The Appeal: 5. The Appellant filed his Amended Memorandum of Appeal dated 11th September, 2020 wherein he raised five (5) grounds of appeal impugning the decision of the trial Court.

6. He faulted the trial Court for holding that a valid contract existed between the parties thus erroneously finding him liable. He lamented that the trial Court did not consider that the Respondent had not established any negligence on his part considering the fact that his driver was never charged with any offence arising out the accident that occurred on 24th December, 2016. Finally, he accused the trial Court of misdirection for failing to consider that the Respondent had failed to pay the agreed amount.

7. He urged this Court to allow the appeal by setting aside the trial Court’s judgment. He urged that the same be substituted with an order dismissing the suit with costs.

8. He further prayed for costs of the appeal.

9. The appeal was opposed.

10. By the directions of this Court, the appeal was heard on the basis of parties’ rival written submissions. Both parties duly complied.

11. The Appellant’s submissions were dated 8th July, 2022. It was submitted that the Respondent failed to prove on a balance of probabilities that a valid contract existed between the parties. He relied on several authorities justifying his stance. He absolved himself from liability following the accident that occurred on 24th December, 2016. As the goods were stolen, he submitted that he could not be found culpable for loss.

12. The Appellant referred to the definition of a common carrier from the 8th Edition of the Black’s Law Dictionary. He demystified the constituent elements required in an action in negligence by citing paragraph 662 at page 476 of Halsbury’s Law of England, 4th Edition. Finally, he summarized that the nature of an employer’s duty is to take reasonable care so as to carry on operations without subjecting its employees to unnecessary risk.

13. He referred to several decisions in support of the grounds of appeal and the submissions.

14. The Respondent filed his submissions dated 25th July, 2022. He opposed the appeal.

15. He submitted that the Appellant had admitted that a contract existed between the parties by virtue of his decry that the Respondent had failed to pay the agreed amount. He further relied on the Appellant’s testimony and written submissions for this position. He invited this Court to consider further admissions from P Exh. 1 and P Exh. 2. He submitted that from the conduct of the parties, there was a valid binding existing contract. He cited several authorities fortifying those submissions.

16. Having established that a contract existed, the Respondent urged that the Appellant breached his obligations under the contract. He added that the allegation that the goods were carried at owner’s risk did not exempt him from his duty of care as it was not part of the bargain when the agreement to transport maize was arrived at. He continued that the Appellant was a common carrier thus owed a duty of common carrier under the transport agreement. He cited several authorities in justification of this disposition.

17. The Respondent submitted that since the Appellant bore the responsibility for the safety of the goods, the onus was on him to establish that the facts and circumstances of the case gave rise to an exception thus vindicating him. He further demonstrated that owing to the Appellant’s own admission, he failed to take steps to ensure that the remaining 56 bags could be delivered. He submitted additionally that the Appellant could not rely on the third-party insurance policy to escape liability as the consignment was carried under his obligation to the duties of a common carrier.

18. The Respondent observed that while the Appellant maintained that his driver was not charged with a criminal offence, criminal proceedings fell under the aegis of the Director of Public Prosecution; a creature of Article 157 of the Constitution. That issue was not a basis for determination by the trial Court.

19. In light of the above, the Respondent submitted that he was entitled to recover the value of the maize consignment.

20. He argued that the trial Court was correct to hold the Appellant liable for the loss. He urged this court to dismiss the appeal with costs.

Analysis: 21. The High Court, as the first appellate Court, is enjoined to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. v Associated Motor Boat Co. Ltd (1968) EA 123).

22. This Court, nevertheless, appreciates the settled principle that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348).

23. This Court has carefully perused the record and appreciates the matter. Flowing therefrom, the following issues fall for determination: -a.Whether a binding contract existed between the Appellant and the Respondentb.Whether the Appellant was a common carrier?c.Whether the Appellant was in breach of the contract?

24. The issues will be dealt with in seriatim.

a. The contract: 25. From the record, there is no doubt that a transport contract existed between the parties herein. The fact is not only admitted by both parties, but is as well demonstrated.

26. For instance, the Appellant while being cross-examined before the trial Court stated as follows: -….. I spoke with my driver Wycliffe Muzore., I agreed that the goods were to be loaded. I spoke to Ndungu. I had known Ndungu for some time…... I gave authority to my driver to transport the goods. I received money from Ndungu for purposes of transporting goods. I received money from Ndungu for purposes of transporting goods for Muchomba worth Kshs. 27,000/=……

27. Contracts may be in writing or be derived from the conduct of the parties.

28. In this case, it cannot be gainsaid that on 24th December, 2016, the Appellant’s driver, one Wycliffe Muzore, was asked by the Appellant to carry the Respondent’s goods from Kitale to Nairobi. The drier complied.

29. The transport contract was for Kshs. 54,000/=. There was part-payment of Kshs. 27,000/=. The balance was to be paid on delivery of the goods in Nairobi. The goods were loaded into the Appellant’s vehicle and requisite weigh bridge charges made. The driver thereafter began his way to Nairobi.

30. The Appellant, however, refuted the existence of any valid contract or at all on the ground that the Respondent did not settle the full contract amount. On the other hand, the Respondent attempted to justify that a contract existed as long as the Appellant failed to deliver the goods as agreed.

31. Of critical importance is that it appears that no written agreement was entered into and executed by the parties. It is in light of this fact that parties have conflicting positions.

32. As stated earlier, it is a trite aphorism that a contract can be implied by conduct of parties so that a contract is not only determined by the execution of a document. However, where parties have a meeting of the minds and the constituent elements of a contract can be ascertained, a Court will not depart away from finding that a contract subsists between the parties in a dispute. In fact, Section 3(1) of the Law of Contract Act validates such a contract as enforceable.

33. In Ali Abid Mohammed v Kenya Shell & Company Limited (2017) eKLR, the Court of Appeal emphasized that a contract between parties in the absence of words reduced into writing can still be inferred from the conduct of the parties. The Court held thus: -…. It therefore follows that a Contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. See Timoney and King v King 1920 AD 133 at 141. In the circumstances of the instant case, there existed an enforceable contract between the parties by reason of conduct. Indeed, it was not disputed by the respondent that it supplied petroleum products to the appellant at a specific amount per liter and for a certain period of time….

34. In determining what constitutes a contract, the Court of Appeal in William Muthee Muthami v Bank of Baroda (2014) eKLR stated that ‘… In the Law of Contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach….

35. Did the three elements of a contract exist in this case?

36. There is no doubt that the Respondent was issued with a Local Purchase Order by Unga Limited in Nairobi to deliver 320 bags of maize to the said party. In light of this, the Respondent approached the Appellant through his agents whereupon the Appellant accepted and agreed to transport the goods at a sum of Kshs. 54,000/=. A deposit was made with the balance to be paid on delivery of goods to the destination.

37. If this Court understood the Appellant well, his contention was that no contract existed because the Respondent did not fully pay the consideration. The Court differs with that line of thought. Firstly, the Appellant agreed to and allowed his driver to load and deliver the goods to Nairobi. He also accepted part-payment. Secondly, irrespective of the balance not having been paid, the Appellant demonstrated willingness to abide by the terms of engagement and that is why he authorized his diver to ferry the goods.

38. From the position taken by the Appellant, it seems that he wished this Court to believe that the consideration was to be paid if full before the execution of the contract. The position is sharply opposed by the Respondent and his witnesses.

39. The inevitable question which, therefore, begs for an answer is that if the position by the Appellant was correct, then why did he allow his driver to load the goods in the first instance and before receiving the entire consideration and to proceed to obtain a weighbridge certificate? From the parties’ conduct, the only reasonable position would be that proffered by the Respondent; that the parties had agreed that there be an initial part-payment of the consideration with the balance payable upon the delivery of the goods. This Court finds and so hold.

40. If this Court is to allow the Appellant’s position to have its way, then the Appellant would be openly approbating and reprobating; an approach which this Court would not countenance.

41. The Court finds that all the elements of contract are proved in this case and holds that there was a binding transport contract between the Appellant and the Respondent.

b. Appellant being a Common Carrier? 42. Under the 11th Edition of the Black’s Law Dictionary, a common carrier is defined as a commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee. It furthers that a common carrier is generally required by law to transport freight or passenger without refusal if the approved fare or charge is paid; also termed as public carrier.

43. Further description of a common carrier has been recorded thus: “… to bring a person therefore within the description of a common carrier, he must be engaged in the business of carrying goods for others as a public employment …. And this duty or obligation to the public by reason of the public nature of the employment and the increased responsibility imposed upon him by the law upon the grounds of public policy, mainly distinguish the common from the mere private carrier for hire.”

44. The definition of a private carrier is any carrier that is not a common carrier by law. Was the Appellant therefore a common carrier or a private carrier?

45. Importing the quoted part of Volume 3 Halsbury Law of England paragraph 365 at page 24 of the proceedings in its judgment, the trial Court observed as follows: -… To constitute a common carrier, he was ready to carry for hire as a business and not as a casual occupation. It is essential that he ought to hold himself out as being ready to carry goods for any person, or to carry any passengers no matter who they may be. If he carries for particular persons, or certain passengers only, he is not a common carrier, and the relationship between him and the owner of the goods or the passenger is one of special contract. If he retains a right of selection as to whom or what he shall carry he is not a common carrier….

46. In this case, the Appellant testified that he was a transporter. He further admitted that he was contracted by one agent called Ndungu to transport the goods in issue to Nairobi at a consideration of Kshs. 54,000/= and part-payment thereof was made.

47. The Appellant did not demonstrate that he was engaged in the transport business with a special class of persons or in a special manner. He demonstrated to have been a transporter at large. The Appellant, therefore, squarely fit within the definition of a common carrier.

48. This Court finds fortification in the above holding in the words of Sir Charles Newbold, P in Express Transport Co Ltd v BAT Tanzania Ltd [1968] EA 443, at P 447 who held thus: -… There has never been in England complete certainty as to the attributes a carrier must possess before he can be said to be a common carrier as opposed to a private carrier. It is clear, however, that before a carrier can be said to be a common carrier of goods he must hold himself out as ready to carry the goods of any person and not of a particular person. There is no necessity that there should be a fixed route or a stated timetable; and the fact that the carrier refuses to carry certain goods, for example, dangerous goods, does not mean that the carrier is not a common carrier. I have come to the conclusion, after a close examination of a number of cases and bearing in mind that the judgments in each case are related to the facts of the particular case, that the essential attribute which determines whether a carrier is a common carrier is that the carrier must hold himself out to the public as prepared to carry generally for the public and not for particular members thereof….

c. Was the Appellant in Breach of the Contract? 49. The Appellant vehemently submitted and maintained that he was not culpable for any loss. He explained that firstly, the goods were stolen by unknown persons following the accident that occurred on 24th December, 2016. Secondly, he stated that he only took out a third-party insurance policy. As a result, risk could not pass on to him. Thirdly, he was exempted from liability pursuant to their modus operandi general consignment note produced in evidence as Dexh1.

50. The Respondent on the other hand submitted that since the Appellant admitted that he was a transporter that charged fee for his services, the allegation that goods were carried at the owner’s risk did not exempt him from his duty of care to ensure safety of the goods.

51. It was further submitted that the Appellant failed to take steps to secure the remaining 56 bags that could have been delivered as contracted.

52. The trial Court observed that the Appellant did not state what measures he had taken to ensure that the remaining bags were delivered to their destination. The fact of taking out a third-party policy did not further absolve him from exercising his duty. In that regard, the trial Court found that the Appellant had breached his duty of care to the Respondent.

53. The facts not disputed are that the goods did not arrive at their final destination. The goods were to be transported to Unga Limited in Nairobi. It has also been established that for all intents and purposes, the Appellant was a common carrier.

54. When then does negligence arise in such circumstances and what are the exceptions if any to the general rule? In settling this issue, this Court will look at binding decisions of the superior Courts on the subject since there is no statutorily-prescribed law at hand on the very issue.

55. In Express (K) Limited v Manju Patel [2001] eKLR, the Court of Appeal was categorical that a custodian of goods is liable if the same are lost or damaged in his custody and he gives no explanation on how such loss occurred.

56. Further, the Court of Appeal inSecuricor (K) Limited v Drapers and Another CA No. 67 of 1985 held as follows: -… When a principal has in his charge the goods or belongings of another in such circumstances that he is under a duty to take all reasonable precautions to protect them from theft or depredation, then, if he entrusts that duty to a servant or agent, he is answerable for the manner in which that servant or agent carries out his duty. If the servant or agent is careless so that they are stolen by a stranger, the master is liable. So also, if the servant or agent himself steals them or makes away with them….

57. From the above decisions cited, it is apparent that a common carrier’s liability takes effect once the goods are accepted for transport. Upon assumption of the goods in readiness to provide hauler services, the carrier is then under an obligation to take reasonable steps to ensure safety of the goods in transit and have them delivered at the desired and/or expected destination and that is when liability stops. It must also be borne in mind that the doctrine of vicarious liability is imported so that the common carrier is answerable to the acts of his servant or agent.

58. Indeed, as with any general rule, there are several exceptions thereto. The Court of Appeal in East Africa Industries Ltd v B.R. Nyarangi [2009] eKLR, upon considering several decisions on the issue, laid four exceptions on the general liability of the common carrier. They are: -i.The loss or injury to the goods arose solely from an Act of God;ii.The loss or injury to the goods arose solely from hostilities involving the State;iii.The loss or injury to the goods arose solely from the fault of the consignor; and,iv.The loss or injury to the goods arose solely from or inherent vice in the goods themselves.

59. The Court of Appeal in P.N. Mashru Transporters Limited v Rayshian Apparels Limited [2016] eKLR considered a case where goods were stolen while in transit and on close examination of the circumstances, the Court held that the carrier was liable for the loss incurred when the goods were stolen in transit as it did not demonstrate any of the exceptions.

60. Returning to the case at hand, for the Appellant to be absolved from liability in the circumstances of this case, he was under duty to demonstrate any of the above exceptions.

61. The contentions that the goods were stolen by strangers and that he had only taken out a third-party insurance policy on the vehicle do not attain the requisite bar to any of the exceptions. This Court so finds since the Appellant, as a common carrier, was under a duty to ensure the safety of the goods under him. One way of doing so was to insure such goods against any loss.

62. In this case, the Appellant only took out a third-party insurance policy on the subject motor vehicle. If the Appellant did not want any liability on the goods to attach to him, he ought to have reduced that into writing. Having overlooked that aspect, he cannot now seek refuge under a general contract document between a limited liability company and third parties. Such, are not parties to the instant dispute. Further, the Court is at a loss as to why the Appellant did not even account of the 56 bags of maize the Appellant recovered after the accident.

63. The liability on common carriers was further aptly captured by John Holt CJ in Coggs v Benard [1558-1774] All ER 1 who held as follows: -…. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he (the common carrier) is chargeable. This is a politic establishment, contrived by the policy of the law for the safety of all persons, that they may be safe in their ways of dealing, for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. This is the reason the law is founded upon that point….

64. Deriving from the foregoing, it is this Court’s finding that the Appellant was in breach of the contract to transport the goods to Nairobi.

Disposition: 65. In view of the above analysis, this Court can only arrive at the conclusion that the trial Court was right in allowing the suit in the manner it did.

66. As such, this appeal is determined in the following manner: -a.The appeal lacks merit and is hereby dismissed.b.The Appellant shall shoulder the costs of the appeal.

67It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 8TH DAY OF DECEMBER, 2022. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Wanyanga, Learned Counsel for the Appellant.Mr. Kibet for Mr. Langat,Learned Counsel for the Respondent.Kirong/Regina – Court Assistants.