[2017] KEHC 4278 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 93 OF 2015

MULTIPLE HAULIERS (E.A) LTD……..….…APPEALLANT

VERSUS

1. JUSTUS MUTUA MALUNDU

2. MASH EAST AFRICA LTD

3. ALI ZAPHILA M’MBETSA.......................RESPONDENTS

J U D G M E N T

1. It was pleaded in the plaint dated the 26/11/2012 that on the 28/7/2012 the plaintiff was lawfully travelling in motor vehicle Registration No. KAW 020B owned by the 2nd Respondent and driven by the 1st along Mombasa Nairobi Highway when at Kibarani area the said motor vehicle was negligently and or carelessly driven that it was caused to collide with a motor vehicle Registration No. KBA 531P, ZC 5620 owned by the Appellant as a consequence whereof the plaintiff sustained severe bodily injuries. As a result of the said accident, it was pleaded that the 3rd Respondent was charged and convicted of the traffic offence of careless driving in Mombasa Traffic Case No. 5571 of 2012. The plaintiff, now 1st Respondent pleaded particulars of negligence, particulars of the injuries as well as special damages and prayed for judgment against the Defendants then, jointly and severally, for both special and general damages as well as costs and interests.

2. The Appellant and his co-defendants in the primary suit, resisted the suit and filed statements of defenses. For the appellant, as 3rd defendant then, a defense dated 17/1/2013 was filed. In that defense the occurrence of the accident was admitted but the defendant denied all the particulars of negligence injuries and damages as well as the presence of the plaintiff in motor vehicle Registration No. KAW 020B. The Appellant then advanced a defense to the effect that the occurrence of the said accident was cause or substantial contributed to by the negligent manner in which motor vehicle Registration No. KAW 020B was controlled and driven. Particulars of negligence were then given which among other accused the driver of KAW 020B of over-speeding, failure to keep due and proper outlook, failing to head the process of KBA 531P, ZC 5620 and failing to take any preventive or evasive action to avert the collision. For those reasons the Appellant prayed that the plaintiff’s suit be dismissed with costs.

3. For the 2nd and 3rd Respondents, as the 1st & 2nd Defendants to the suit, a joint statement of defence dated 11/12/2012 was filed. In that defence, ownership of KAW 020B was denied, the vicarious liability of the 2nd Respondent for the acts of the 3rd Respondent were denied and even the occurrence of the accident was equally denied; the allegation of charge and conviction were equally denied and all the pleading by the plaintiff save for the description of the parties were all denied. In essence all and every allegation in the plaintiff was denied.

4. In the alternative the defendants, (2nd & 3rd Respondents) blamed the plaintiff for causing or substantially contributed to the accident by failing to put on seat belts, jumping out of a moving motor vehicle, urging the driver to speed up and thereby detracting his concentration and being in the motor vehicle without authority.

5. The two Respondents equally blamed the driver of KBA 531P/ZC 5620 for causing the accident or substantially contributing to its cause and gave the particulars of negligence.

6. Those were the pleadings filed and it appears that no Reply to defence was ever filed with the consequence that there was absolute joinder to the statements of defences filed by dint of operation of the provisions of Order 2 Rule 12 Civil Procedure Rule. That state of affairs then presented the court to determine, as a first prominent issue, the question of causation of the accident and who between the parties cause the accident or contributed to it to what extent.

7. Having taken evidence of two witnesses on behalf of the plaintiff and a witness each on the part of the 1st & 2nd defendants, and 3rd defendants, respectively, the court then found and held:-

“He calculated how to overtake on the left lane. In this process,he saw a canter that was on the left lane. He therefore slowed down and braked, so as not to hit the car in front and the car coming from the back. It was then that he was hit by the Mash bus from the bus.

The clear inference is, Mr. Kyalo was attempting to overtakefrom the left. Therefore if he had started to join the left lane in order to overtake, the left rear side would definitely be on the right front side of the vehicle behind him. Having started to overtake wrongly on the left side, and seeing another motor vehicle approach, he suddenly braked as indeed he observed, he would have rammed into the motor vehicle he was attempting to overtake and the vehicle approaching on the left lane would also have rammed into him. However, unfortunately, as the Mash bus was closely behind, on suddenly braking, what Mr. Kyalo had tried to avert, happened. The Mash bus rammed into the lorry. This also explains how from the right inner lane, the lorry managed to cross the left lane and go up the centre refuge. It was as it is, partly on the left lane and partly on the right lane in an attempt to overtake from the left. Indeed the Mash bus had been behind the lorry but Mr. Kyalo’s evidene, he was clear that a Canter was coming from behind him which is a clear indication that he had attempted or had changed lanes as how could the canter and the bus be behind him on one lane!

Every road user owes a duty of care to other road users whether passengers, pedestrians, fellow-motorists and others. In this case, both the drivers of motor vehicles registration numbers KAW 020B and KBA 531P ZC 5620 owed Mr. Mutua a passenger a duty of care. They owed him a duty to drive with due care and observe all rules of the road. This both drivers it is clear from the evidence given failed to do. The Highway Code is clear that a driver must keep distance so that in the event a motor vehicle that is infront of him suddenly brakes or stops, he can also be able to brake or stop. In this case, it is clear that the distance kept by Mr. Ali was not safe such that, when Mr. Kyalo suddenly slowed down and braked, he could not stop but had to ram into him. Also the Highway Code is clear, one should not overtake from the left. Mr. Kyalo stated clearly that he was calculating how to overtake from the left. The results were clearly seen.

It should be noted that when a party is charged in a traffic court, it is not proof of negligence. Further, as it is, the case is still pending. I therefore find that on a balance of probability, the 1st and 3rd Defendants are to blame for the accident equally under the doctrine of vicarious liability as it is not in dispute that the motor vehicles belonged to them and were being driven by their drivers in the course of their duties. I therefore apportion liability at 50% as against the 1st and 2nd Defendants and 50% as against the 3rd Defendant”.

8. It is that finding on liability that the Appellant seeks to challenge in the appeal by the 9 grounds of appeal in the memorandum of Appeal lodged on the 10/7/2017. Even though split into 9 grounds, the appeal has one ground of appeal – whether the learned trial court was right in apportioning liability between the appellant and the 2nd & 3rd respondents equally.

9. This being a first appeal, the court is duty bound to reassess and reappraise the evidence afresh and come to own conclusion since it proceed by way of retrial. The appeal being on liability and its apportionment between the defendants, my task is to consider the evidence offered and tendered in that regard and resolve the only issue in controversy.

Evidence adduced by the parties:

By the plaintiff?

10. PW 1, the plaintiff gave evidence that she was a passenger in the 3rd defendants motor vehicle KAW 020B and sat on seat No. 3 from where he could see ahead clearly and did see KBA 531P/ZC 5620 about 50 metres away. He said that the bus he was in hit the lorry infront on the left rear side. He denied that the lorry was turning to the right. He blamed the driver of the bus for failing to keep a proper look out and distance to avert the collision and absolved the Appellant from blame on the basis that having been on the move it could not avoid being hit from behind.

11. PW 2, No. 66461, PC Pius Njiru gave evidence of having visited the scene and found the two motor vehicle where they landed after the collision. He confirmed that even though he was not the investigating officer, he had a police file with statement of other witnesses who were passengers in the bus and which confirmed that the bus hit the lorry from behind and that the bus was extensively damaged or the driver’s side at the front.

12. The totality of the two pieces of evidence is that the bus hit the trailer from behind – it collided onto the trailer from behind.

Evidence by the 1st & 2nd defendants now3rd & 2nd Respondents

13. DW 1, was the bus driver and gave evidence that the accident occurred because the lorry was turning to the right and that it was dark and he was driving at a speed of between 50-60 per hour. He admitted having been charged with traffic offence of causing the accident and that the case was still pending determination.

14. On cross examination by the plaintiff advocate, he denied having attempted to overtake and that there was no provision to turn right but the lorry driver was forcing his way to turn. On cross examination by the advocate for the Appellant, the witness stated that all else exempt himself was not saying the truth and that his motor vehicle did not stop as the trailer came from the left. This is to be seen from his evidence in chief of when he said he was behind the trailer and both were travelling towards the same direction.

Evidence by the Appellant as 3rd defendant at trial

15. DW 3(1) was the driver of the lorry said to have been hit from behind. His evidence was that after the Changamwe round-about as he was going down a slope, he saw a trailer ahead of it carrying a container. He thought of overtaking and being on the inner lane he was to overtake from the left but there was a canter coming from behind on the said outerlane. He therefore slowed down to avoid collision with the canter from behind and the lorry ahead and it was at the juncture of slowing down that he was hit from behind. He denied attempting to take a U turn as there was a distance of 7 meters hence not possible to do a U-turn.

16. On cross examination by the plaintiffs’ counsel the witness then reiterated the presence of a trailer ahead and canter at the back on the outer lane and that he slowed down in order to avoid a collision with either and it was at that juncture that he was hit from behind. At that time, the trailer was some 20-30 infront. He denied having braked suddenly and said that the bus driver was too close to him and was overspeeding. For him he said he had to go to Makupa round about and take the opposite lane to reach the destination. He denied being been charged on the accident and the allegation that he took a U turn to go to the other side of the road.

17. On further cross examination by the Advocate from 1st & 2nd defendants he said that on the material day he was carrying sand to a sight near the flyover but not opposite the scene of the accident. His evidence was that between the two lanes to and from Mombasa town there is a pavement but denied knowledge that motor vehicles pass over the pavement and said that one tyre of his lorry was forced to climb onto the pavement on being hit. He denied turning suddenly or making a U-turn nor did he brake.

18. On re-examination he said he took the inner lane because he had come from Magongo road and could not change lanes at a round about. He repeated that he had to go to Makupa to make a turn at the roundabout.

Analysis and determination

19. Every driver on a public road is duty bound to be on the lookout at all times to avoid possible injury and losses to other road users. Where a collision occurs between two motor vehicles it is in many a situation possible to establish, with evidence of eye witnesses, who between the two contributed to what extent in the collision.

20. The equitable doctrine that first in time is stronger in law is indeed applicable in the Highway code and traffic regulation. It is therefore repeatedly told to driving lesson students that

‘move forward only when the road is clear’

In driving schools it is also a rudimentary lesson that a driver is supposed to leave enough room infront of his car to stop when the car infront stops suddenly.

21. The logic of this rudimentary yet vary critical and cardinal traffic rules is not difficult to discern. Cars are driven towards the front and not backwords on the highway and that may explain why the drivers take the foremost front seat and have a wider front windshield compared to smaller rear windshields and rearview minors. Where visibility in impaired by darkness or band whether, like is alleged by the bus driver in this matter, extra caution is always advised. There is always a presumption that he who hits another from behind is at fault.

22. In the instant case the defendants filed a statement of defence and blamed the accident at paragraphs 14 on the negligence by the appellant. The particulars of negligence set out are at variance with the evidence led by the 3rd Respondent. Those particulars of negligence contributed to the Appellant’s driver are faults only consistent with a driver causing a collision when he moves forward or suddenly slows down, brakes or stops. Of critical note is particular No. 14€ which blamed the driver for “failing to stop, slow down swerve and or in any other way act on the said motor vehicle”. The evidence by both drivers was that the accident occurred at dask and therefore not a very clear visibility. That clearly demanded a higher decree of lookout and care on the bus driver, when compared to the lorry driver. He shouldered a higher duty because he not only carried human beings but was on a slop following a trailer.

23. The bus driver did not contest the fact that the collision was by his bus hitting the reer of the lorry. From whichever side the lorry was hit, the fact remains that it was on its reer. In Samuel Stephen Were vs Sukari Industries Ltd [2018] eKLR, Majanja D, J, had this to say in circumstances similar to those obtaining in this case.

“I find and hold that the evidence, taken as a whole, point to the fact that the tractor was being driven behind the motorbike at a high speed when it lost control and hit the motor bike ahead of it. Since the motor bike was hit from behind, it would have been very difficult, if not impossible, for the deceased to avoid the accident”.

24. That clearly sits in consonance with the presumption that he who hits another from behind is IPSO FACTO negligent.

25. However a court of law makes its determination based on facts as pleaded by the parties and supported by the evidence adduced in support of such pleadings. It is noteworthy that in the present case, the 2nd & 3rd Respondents as the 1st and 2nd defendants at trial did not lead any evidence on what evasive step was taken to avert the accident.

26. That pleading and the evidence by DW 1, were totally at variance and contradictory and should not have been the basis for the trial court to find that the lorry driver suddenly braked and was ranned into by the bus driving behind it. The Appellants driver could not be faulted in taking the action, even if it be taken that he braked and slowed down to avoid a collision. To do that would be to punish prudence and due attention and lookout. One would wonder what avoiding action the Appellant’s driver would have taken so as not to be hit. Would he be expected to accelerate so as to help the bus driver keep and maintain safe distance between them regardless of the other road users ahead?

27. Clearly and surely the finding by the trial court cannot be supported even if they be based on facts. However they do not support the facts, but pervert the facts proved in evidence and it behoves this court to correct that error by setting aside the finding on liability and substituting therefore a finding that the driver of the bus; DW 1, was wholly to blame for the accident. Having been the employee and agent engaged by the 2nd Respondent, the 2nd Respondent was vicariously liable from his negligence and fault.

28. The inevitable result and conclusion from the foregoing findings is that this appeal must succeed. It is allowed and costs thereto awarded to the appellant to be paid by the 1st & 2nd Respondents.

29. It is so ordered.

Dated and Delivered at Mombasa this 14th day of July 2017.

P. J. O. OTIENO

JUDGE