[2023] KEHC 26428 (KLR)

Moiz Motor Limited & another v Muthoka & 2 others (Civil Appeal E079 of 2022) [2023] KEHC 26428 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26428 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E079 of 2022

FROO Olel, J

December 4, 2023

Between

Moiz Motor Limited

1st Appellant

Edward Makau Matheka

2nd Appellant

and

Jacob Kioko Muthoka

1st Respondent

Ultra Eureka Farm Limited

2nd Respondent

Jack Chebet

3rd Respondent

(BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF HON S. KANDIE (RM) DELIVERED ON 17TH MAY 2022 IN MAVOKO CMCC No. E247 0f 2021)

Judgment

1. The Appellants were the 1st and 2nd defendant in the primary suit, where they had been sued by the 1st respondent herein as the registered owner and driver of Motor vehicle KCV 966K (hereinafter referred to as the 1st suit motor vehicle). It was alleged that on 28th November 2020 the plaintiff was a lawful passenger aboard the 1st suit motor, travelling along Mombasa- Nairobi road at around Lukenya area, when the authorized driver of the motor vehicle registration Number KCM 956T ( hereinafter referred to as the 2nd suit motor vehicle ) drove and/or managed the 2nd suit motor vehicle in a reckless careless, and negligent manner, while at a high speed, that he allowed the 2nd suit motor vehicle to violently collide with the 1st suit motor vehicle from behind thereby causing the 1st respondent to sustain severe bodily injuries.

2. The appellants filed their statement of defence denying the occurrence of the said accident and stated that in the alternative, if at all the accident occurred, (which was denied) then it was caused solely and/ or largely contributed to by the negligence of the 1st respondent which negligence was particularized in the said statement of defence as filed. After hearing the suit, the learned magistrate in her judgment delivered on 17th may 2022 apportioned Liability at 100% to be shared 50% - 50% between 1st and 2nd Appellant and the 2nd Respondent and proceeded to award general and special damages.

3. The Appellants, being dissatisfied by the whole of the said judgment did file their memorandum of Appeal and raised several grounds of appeal namely: -a.That the learned trial Magistrate erred in law and in fact in apportioning liability equally as between the drivers of the 1st suit motor vehicle and 2nd suit motor vehicle.b.That the learned trial magistrate erred in law and in fact in finding that the driver of the motor vehicle registration number KCV 966K was negligent despite the overwhelming weight of evidence to the contrary.c.That the learned trial magistrate erred in law and in fact in disregarding the evidence tendered before the court and instead making a finding of liability against the driver of motor vehicle registration number KCV 966K devoid of any foundation.d.That the learned trial magistrate erred in law and in fact in placing reliance merely on the fact that no sketch map or photographs of the scene were availed.e.The learned trial magistrate erred in law by failing to give appropriate weight and considerations to submissions filed by the appellants’ advocates and authorities cited therein.f.The learned trial magistrate erred in law in entering judgement against the appellants

Facts of the Case 4. The 1st respondent testified that he was travelling lawfully as a passenger aboard 1st suit motor vehicle along Mombasa – Nairobi road when at Lukenya Area, the 2nd appellant drove and/or managed the said motor vehicle in a reckless and careless manner and allowed it to be hit from the rear by the 1st suit motor vehicle thereby occasioning him to suffer serious bodily injury. He stated that he sustained blunt injuries on the head, left shoulder and blunt injuries to the anterior chest walls and had not fully recovered from the said injuries. He blamed both drivers of both suit motor vehicles for the accident and prayed for compensation

5. On cross examination, the 1st respondent did state that he was in the 1st suit motor vehicle and was seated on the rear seat. The accident occurred while there was traffic and the 2nd suit motor vehicle knocked the 1st suit motor vehicle from behind thereby causing the 1st suit motor vehicle to knock the motor vehicle in front of it. PW1 blamed both drivers for the accident and also confirmed that there was traffic on the said road and therefore the driver of the 1st suit motor vehicle could not swerve to avoid the said accident.

6. PW2 Cpl Z Amalany testified that he was based in Athi River Traffic base and had the police abstract dated 08. 02. 2021 in respect to a road traffic accident which occurred on 28. 11. 2020 along Nairobi – Mombasa road. He stated that the 1st respondent was travelling on the 1st suit motor vehicle which was hit from the rear by the 2nd suit motor vehicle, which was heading towards Nairobi General direction. The investigating officer was one Cpl Bett and the said officer had blamed the driver of the 2nd suit motor vehicle for causing the said accident.

7. In cross examination PW2 stated that his information was derived from the accident OB, which he had in court. In total about five motor vehicles were involved in the said accident. He reiterated that the cause of the accident was failure of the driver of the 2nd suit motor vehicle to keep distance and therefore hit the 1st suit motor vehicle from behind and caused the chain reaction leading to an accident pile up of several motor vehicles.

8. The 2nd appellant (DW1) testified that on the material day, he was the driver of the 1st suit motor vehicle and had carried the plaintiff from Makutano heading to Nairobi. At Green Park he joined a single lane of motor vehicles as there were on coming motor vehicles from the opposite end and this had caused a traffic jam. The 2nd suit motor vehicle, which he had left about 800m behind suddenly rammed into his motor vehicle from behind, which impact occasioned him to hit a school bus that was in front, his motor vehicle further span/turned around and collided with an oncoming lorry on chassis (SSD 133S). DW1 stated that he was on his right lane and blamed the driver of the 2nd suit motor vehicle for the accident as the said accident caused a huge impact and there was nothing, he could do to prevent the accident from occuring. He was not to blame for the same.

9. On cross examination DW1 stated that he had been a driver for 15 years and had never caused any accident. The 1st Respondent was a passenger in the 1st suit motor vehicle and as a result of the said accident, he knocked two other motor vehicles and after the accident had recorded his statement at the police station. The driver of the 2nd suit motor vehicle had informed him that his motor vehicle did not have brakes. Further he had overtaken the 2nd suit motor vehicle about 800 meters earlier on the dual carriage, but the accident had occurred at a section of the road that had a single lane.

10. The 2nd respondent did call the driver of the 2nd suit motor vehicle, Wycliffe Rono to testify. He stated he had 8 years driving experience and that he blamed the driver of the 1st suit motor vehicle for the accident because he had stopped abruptly in front of the 2nd suit motor vehicle. It was raining and the 2nd suit motor vehicle was heavily loaded with about 48 tonnes. He tried to evade hitting the 1st suit motor vehicle, but knocked the left rear side, with his front drivers’ side. It was not true that the 2nd appellant had overtaken him about 800 m earlier, to the contrary the 2nd appellant had forced the 1st motor vehicle to join the road at the end of the dual carriage thereby contributing to the said accident. After the accident he too recorded his statement with the police and was not charged with any traffic offence.

11. On cross examination he confirmed that he was the driver of the 2nd suit motor vehicle. The accident had occurred within the single lane, which he had joined and the 1st suit motor vehicle joined the single lane after realizing that there were oncoming motor vehicles. The accident had occurred at about 11. 00am, the road was clear and there was no traffic. The witness blamed the 2nd appellant for the accident as he was speeding and joined the single lane suddenly to avoid oncoming motor vehicle, yet there was enough not space for him to maneuver.

12. The trial magistrate proceeded to consider the evidence tendered by the parties and rendered her judgment, where she adopted her finding on liability as made in the sister file Mavoko cmcc No 246 of 2021, where liability as against both defendants was awarded at 100% but to be shared 50% - 50% between the appellants herein and the 2nd respondent .The 1st respondent was awarded General damages of Ksh.120,000/=, plus special damages of Kshs 6,100/=.

Appellants Submissions 13. The appellants framed the only issue for determination to be; the finding on liability by the trial court. The appellants submitted that the duty of this court was to re- evaluate the evidence on record and draw its own conclusion. Reliance was placed on the case of CM (a minor suing through mother and next friend M N v Joseph Mwangangi Maina [2018] eKLR, Ephantus Mwangi & another v Duncan Mwangi Wambugu(1982)-88) IKAR 278.

14. The appellants submitted that the trial magistrate findings on liability was made in error as there was no negligence on the part of the appellant’s driver (the 2nd appellant). That from the onset there was evidence that the 2nd respondent’s vehicle hit the appellant’s vehicle from the rear and caused a sequence of collisions, thus the blame placed on the 2nd appellant was without any factual basis. Further the appellants evidence was corroborated by the 1st respondents’ evidence, who was a passenger in the 1st suit motor vehicle and by PW2, the police officer who stated that the 2nd suit motor vehicle failed to keep distance and was therefore to blame for the said accident.

15. The appellants further submitted that the trial magistrate’s finding that both drivers were equally to blame for the said accident based solely on the ground that the police officer did not avail any sketch map of the scene of the accident or photographs was erroneous and devoid of any merit. The learned magistrate had ignored the evidence given by the other witnesses and should have found that the 2nd respondent’s vehicle was wholly to blame for the accident since hid motor vehicle collided with the appellant’s vehicle from behind, while the latter was stuck in traffic. The 2nd appellant did nothing wrong and there was no negligent conduct on his part. Reliance was placed on the case of David Kajogi M’mugaa v Francis Muthomi [2012] eKLR and Jacob Momanyi Orioki v Kevian Kenya Ltd[2018]eKLR.

16. It was thus submitted that the 1st respondent had not proved any negligence as against the 2nd appellant and thus he should not have been held liable. The judgment thus ought to be set aside as the said decisions was made per Incuriam and contrary to binding authorities. The court was urged to allow this appeal as sought in the memorandum of appeal.

1st Respondent Submissions 17. It was submitted in opposition to the appeal, that the 2nd appellant owed owed a duty of care to the passengers of the 1st suit motor vehicle being the driver thereof and he breached the said duty of care which eventually led to the 1st respondent suffering injuries as a result of the accident. Reliance was made in the case of Samuel Muriuki Mugo & another v David Kariuki Migua [2022] eKLR.

18. The Highway Code of Kenya mandated the 2nd appellant to maintain a safe distance between the vehicle he was in control of and the vehicle in front of him and this was not observed by the 2nd Appellant. Thus the 2nd appellant’s vehicle was pushed onto the vehicle ahead of it, which further compounded injuries sustained by the 1st respondent owing to the impact of the front collision. The 1st respondent thus submitted that the appellants were liable for the injuries he sustained. Reliance was placed in the case of Statpack Industries vs. James Mbithi Munyao [2005] eKLR.

19. It was also submitted that the trial court did not make any error and/or mistake in making a finding that the appellants were equally to blame for the accident that occurred on 28th November 2020. The appeal was thus not merited and the decree of the trial court ought not be set aside, reversed or varied.

2nd Respondent’s submissions 20. It was submitted that the evidence of the appellant’s key witness did not add up. The 2nd appellant testimony that he had overtaken and left the 2nd respondent’s motor vehicle 800 meters behind, but it came and hit his vehicle from behind was not plausible. The evidence of the 2nd Respondent driver was more plausible, that the appellants motor vehicle overtook him and stopped abruptly leaving no space and time for the 2nd suit motor vehicle to avoid ramming onto the back of the 1st suit motor vehicle. Further it was submitted that not all accidents, where one motor vehicle rams into the back of the other motor vehicle, does the court always find the 2nd motor vehicle 100% liable in negligence. That in this case the appellant’s driver is the one who failed to keep distance. It was urged that the appeal should be dismissed.

Analysis and Determination 21. I have considered the pleadings, evidence presented and submissions of the parties in this appeal. This court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.

22. As held in Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123 where it was stated that;“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court is by way of retrial and the principals 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 conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. (Abduk Hammed Saif V Ali Mohammed Sholan(1955), 22 E.A.C.A 270,

23. In Coghlan V Cumberland (1898) 1 Ch, 704 , the court of appeal of England stated as follows;“Even where, as in this case, the appeal turns on a question of fact, the court of appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the material before the judge with such other material as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong….. When the question arises which witness is to be believed rather than the other and that question turns on manner and demeanour, the court of appeal always, is and must be guided by the impression made on the judge who saw the witness. But there may obviously be other circumstance’s quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court had not seen.

24. Also it has been held by the court of appeal in Ephantus Mwangi and Another Vs Duncan Mwangi Civil Appeal No 77 of 1982{ 1982 -1988}1KAR 278 that;“A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstance’s or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

25. In this case this court is being called upon to interfere with the trial court’s apportionment of liability. In Khambi and Another vs. Mahithi and Another [1968] EA 70, it was held that:“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”

26. That seems to have been the position in Isabella Wanjiru Karangu vs. Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142 and HCCA 60 Mahendra M Malde vs. George M Angira Civil Appeal No. 12 of 1981, Zarina Akbarali Shariff and Another vs. Noshir Pirosesha Sethna and Others [1963] EA 239 & Masembe vs. Sugar Corporation and Another [2002] 2 EA 434 where it was held that apportionment of blame represents an exercise of a discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.

27. In this case, there is no denial that an accident occurred, the bone of contention is who is to blame for the said accident. It was the testimony of the 1st respondent that he blamed both drivers for the said accident. He blamed the 2nd appellant for driving carelessly and negligently thus allowing the 1st suit motor vehicle to be hit from behind, while also blaming the 2nd respondent’s driver for failing to keep distance. In cross examination by the counsel of the 2nd respondent in the appeal, the 1st respondent herein confirmed that it was raining and the road was wet. He reiterated that he blamed both drivers for the said accident.

28. PW2 Cpl Z Amalany confirmed that he was not the investigating officer and he produced the police abstract into evidence. He did not have the police file, but confirmed that indeed the accident occurred and blamed the 2nd respondent driver for causing the said accident, when he knocked the 1st suit motor vehicle from the rear. The 2nd appellant on his part stated that he was driving headed to Nairobi, at Green park he joined the single lane, as there were oncoming motor vehicles, the 2nd suit motor vehicle suddenly rammed into them from behind, while he had stopped at the traffic jam and the chain effect caused him to ram into the school bus in front of him and an oncoming lorry chassis.

29. The 2nd appellant further stated that he did not contribute to the said accident and could not evade it given the abrupt manner in which it occurred. In cross examination by counsel for the 2nd respondent herein, the 2nd appellant reiterated that he had overtaken the 2nd suit motor vehicle about 800 meters earlier at the dual carriage before joining the single lane, and the accident occurred when he had joined the single lane. He denied that it had rained on the said date. On the other hand the 2nd respondent witness/ driver blamed the 2nd appellant for causing this accident by abruptly stopping in front of the 2nd suit motor vehicle, which was a trailer carrying about 48 tonnes. Since it was raining, he tried to avoid the accident, but ended up knocking the rear of the 1st suit motor vehicle.

30. The 2nd respondent driver denied that the 1st suit motor vehicle had overtaken him about 800m earlier and stated that the 2nd appellant overtook him at the end of the dual carriage and forced himself to join the single lane when he realized that there was oncoming traffic. He tried to evade the said accident by swerving to the left, but could not avoid the said accident as there wasn’t enough space to maneuver. The accident could have been avoided had the 2nd appellant not been speeding and had not forced himself to join the single lane when there wasn’t enough room for him to do so.

31. From the evidence presented it is clear that there are two versions of facts presented especially regarding, what transpired immediately before the said accident occurred. While the 2nd appellant states that he overtook the 2nd suit motor vehicle about 800m before the accident, while on the dual road and when he entered the single lane, he encountered traffic jam forcing him to stop. It was at that point that the 2nd suit motor vehicle came and rammed into the back of the 1st suit motor vehicle causing an accident pile up involving other motor vehicles.

32. On the other hand, the 2nd respondent’s diver blamed the 2nd appellant for overtaking when it was not safe to do so. It had rained and the driver 1st suit motor vehicle overtook him and forced himself back into the single lane, when he realized that he was at the end of the dual road. The 2nd appellant then suddenly stopped in front of his motor vehicle to evade oncoming traffic. There was not enough room to maneuver as he was carrying heavy cargo and though he tried to evade the said accident he ended up colliding with the 1st suit motor vehicle from behind.

33. This court is faced with two sets of circumstances and is duty bound to make a determination thereon however difficult the circumstances are as to who is to blame for the said accident. This was appreciated by Madan , J (as he was then) in Welch Vs Standard Bank Limited (1970) EA 115 where he expressed himself as hereunder;“When there is no material to generate actual persuasion in the courts mind, still the court cannot un-concernedly refuse to perform its allotted task of reaching a determination. The collision is a fact. Any one of the alternatives mentioned may provide the right answer as to how it happened. The court’s sense of impartiality prevents the choosing of the alternatives of individual blame against either driver. It would be just to say, and it is as likely the explanation that both drivers were to blame equally as that only one of them was wholly to blame. Accidents do not happen but they are caused. It is an explanation which offers a solution of impartial practicability.Every day, proof of collision is held to be sufficient to call on the two defendants to answer. Never do they both escape liability. One or the other is held to blame. They would not escape simply because the court has nothing by which to draw and distinction between them. So, also, if they are both dead and cannot give evidence enabling the court to draw a distinction between them, they must both be held to blame, and equally to blame…..justice must not be denied because the proceedings before the court failed to conform to conventional rules provided, in it judgment, the court is able to discern that which is right owing to it being fair and just in the circumstances, without jeopardizing the vital task of doing justice. Provided there is no transgression of this sacred duty, the court will act justly in coming to a decision even if there is no evidence capable of procreating actual persuasion…….There being nothing to enable the court to draw a distinction between the two drivers, it is consonant with probabilities, and it is not repugnant aesthetically to a logical judicial mind, to hold that both were to blame, and equally to blame. The court does so in this case.

34. Similarly, in Lakhamshi Vs Attorney General(1971) EA 118 it was held that:“A judge is under a duty when confronted with conflicting evidence to reach a decision on it and inmost traffic accidents, it is possible on a balance of probability to conclude that one or other party was guilty, or both parties were guilty, of negligence. In many cases, as for example, where vehicles collide near the middle of a wide straight road, in conditions of good visibility, with no obstruction or other traffic affecting their courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the Centre of the road, the other must be negligent in failing to take evasive action. It is usually possible, although extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence but where it is not possible, it is proper to divide the blame equally between them.

35. In Farah vs. Lento Agencies [2006] 1 KLR 123 the court expressed itself as follows:“In our view, it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. Everyday, proof of collision is held to be sufficient to call the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the Court would unhesitantly hold that both are to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them… The trial court...had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”

36. It is the appellant’s duty to convince court that the 2nd appellant was not negligent and thus liability was wrongly apportioned as against him. Unfortunately, the evidence adduced does not support this proposition. The 1st respondent who was in the 1st suit motor vehicle, driven by the 2nd appellant confirmed to court that it had rained and traffic was flowing. The fact that it had rained was also confirmed by the 2nd respondent’s driver. The 2nd appellant on the other hand in his evidence in chief stated that he had stopped due to traffic jam, and in cross examination denied that that it had rained. This painted a picture of a dishonest witness whose evidence the court had to consider with a pitch of salt for even photographs of the accident motor vehicle taken at the scene of the accident as seen at pages 54 and 55 of the record of appeal clearly shows that it was raining at the accident scene.

37. Secondly the appellants failed to discharge the evidential burden that is cast upon any party, the burden of proving any particular fact which he desires the court to believe in existed as required under Sections 109 and 112 of the Evidence Act. Since there was conflicting evidence as to how the accident occurred, the evidential burden of adducing additional evidence to prove that it was the 2nd respondent’s driver who was to blame laid with the appellants. The learned magistrate correctly pointed out the appellants did not avail this evidence nor did PW2 avail a sketch map of the accident scene or photographs to assist court make a concrete determination as regards the same. In absence of such evidence, there is no basis to believe the 2nd appellant evidence, who this court has found as a fact was an untrustworthy witness nor was there a basis to discount the evidence of the 2nd respondent’s driver.

38. In those circumstances, there is no error in principle in the apportionment of liability that is manifestly erroneous. Given the conflicting evidence, the trial court was right in apportioning liability at 50:50% as between the appellants and the 2nd respondent.

Disposition 39. The upshot is that this appeal lacks merit and the same is dismissed with costs to the 1st respondent.

40. The costs of this appeal is hereby assessed at Ksh 120,000/= all inclusive.

41. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 4TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the vrtual platform, Teams this 4th day of December, 2023. In the presence of;Mr. Ngugi for AppellantNo appearance for RespondentSusan Court Assistant