[2000] KEHC 509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Appeal 97 of 1998

MUNYAO KYAA NGUTA................................................................ APPELLANT

VERSUS

MALDE TRANSPORTERS LIMITED & ANOTHER............RESPONDENTS

JUDGMENT

This is an appeal against the judgment and decree of Miss. F.N.Muchemi, Senior Principal Magistrate in the Civil Suit No.634 of1995 (Kiambu) dated the 13th day of March 1998. The followinggrounds of appeal inter alia have been submitted for thedetermination of the court:-

1. The Learned Magistrate erred in law and in fact infinding the appellant did not prove negligence againstthe respondents.

2. The Learned Magistrate erred in law in failing to findthat since STEPHEN NZOMO MUNYAO (deceased) was a lawfulpassenger in the 1st defendant's vehicle No.KAC 703 Cthe burden of proof shifted to the respondents once theplaintiff relied on the principle of res ipsa loquitur.It was consequently the respondents' duty to show thatthey were not negligent, and consequently not liable tosatisfy the appellant's claim.they did in conformity with the court order made by their consent.I have as an appellate court of first instance perused thememorandum of Appeal and the judgment of the Learned TrialMagistrate and have considered it in the light of the record of thecourt. The Learned Trial Magistrate's judgment is short andconcise. It deals with two issues.

The first issue was whether or not the deceased was a lawfulpassenger in the defendant's motor vehicle KAC 703C and in respectto this issue the Learned Trial Magistrate observed:-

"Looking at the evidence the deceased was a lawful passengersince he was hired by the second defendant and carried by thevehicle on the authorised route".

The second issue was whether the deceased was negligent intraveling and controlling the vehicle. In respect of this issue,the Learned Trial Magistrate held that negligence on the part ofthe second defendant, which would have rendered the first defendantvicariously liable, has not been proved.

The Appellant's counsel submits that the Learned Trial Magistratewas wrong to base the case on the ground that the negligence on thepart of the defendant was not proved. Counsel submits that therewas ample evidence to prove that there was negligence on the partof the driver of the motor vehicle, causing it to crash, as aconsequence of which, the plaintiff lost his life.

The Magistrate's reasoning for this decision is based on thefact that no witness was called to testify as to how the lorry wasdriven at the time of the accident."

The Learned Counsel for the Appellant further submits thatfrom the proceedings and from the evidence adduced before the courtit has been established that there was an accident involving thefirst defendant as the owner of motor vehicle KAC 703 C.

It is also further submitted that the said motor vehicle lostcontrol and landed on its side in a ditch as a consequence of whichthe deceased sustained fatal injuries. It is contended that thefirst defendant in paragraph 3 of his defence admitted the facts ofthe said accident but denied the allegations of negligence.

The counsel states that the plaintiff in para.5 of the plaintrelies upon the doctrine of res ipsa loquitur.

It is contended that the Learned Trial magistrate did not takethis doctrine and the evidence adduced into consideration, andconsequently did not consider the application of the principle ofthe doctrine cited.

I am, inter alia, referred to:-

(a) TEXTBOOK ON TORTS, 4TH Edition, Blackstone PressLimited (1993) by Michael A. Jones at page 131. the writer states;

'"Sometimes an accident may occur in circumstancesin which accidents do not normally happen unlessthere has been negligence by someone. Where theplaintiff has no or sufficient knowledge about howthe accident occurred it would be unfair to requirehim to prove negligence, particularly if thedefendant does not know what happened and couldchoose not to give any evidence. Thus the fact ofthe accident may itself give rise to an inferenceof negligence by the defendant which, in theabsence of rebuttal, would be sufficient to imposeliability."

A number of authorities have also been cited by the plaintiffon the application of this doctrine. I do not wish to re-produceall of them in this judgment except to state that I have noted thewise decision cited and the principles narrated therein.

It is the submissions of the Plaintiff's Counsel that res ipsaloquitur doctrine was applicable in this case.

I have considered the Appellant's submissions and I have alsonoted that the issue of res ipsa loquitor was not considered anddetermined by the Learned Trial Magistrate in her judgment.

It is the respondent's contention that the failure of thePlaintiff to proceed against the second defendant was fatal to theplaintiff's claim. The respondent has cited two decisions infavour of his arguments these are

1. NBI HCCC NO. 3938/1990 - Samalla Hassan vs.Dajmar service Line.

2. HCCC NO.4708/1989 - Grace Kanini Muthini vs.Kenya Bus Service Ltd. & Another

I have considered these two decisions and I find that thefacts pertaining to them were clearly distinguishable from thefacts pertaining to the appeal now before this court. In the firstdecision there aretwo vehicles which were involved in a collision.It was impossible for the court to determine which of the twocaused the accident. Clearly this was not a case of res ipsaloquitur.

In the case of HCCC NO.4708/1989 - Grace Kanini Muthini vs. Kenya Bus Service Ltd. & Another., the deceased jumped off a moving bus so there were a number of possibilities as to the cause of the accident. Clearly this was also a case distinguishable from the one now before the court.

In the case of Kenya Bus Service Ltd. vs. Rehema HassanMwangi, Civil Appeal No. 62 of 1992,a similar objectionwas raised by the defendant's advocate. It was argued onbehalf of the defendant that the alleged driver (of thedefendant) had not been joined in the action against theDefendant company, or identified and, as such,vicariously liability could not be established on thepart of the defendant company. The Court of Appealrejected that submission by the appellant.

Having considered all the submissions and the LearnedCounsel's arguments I find that the doctrine of res ipsa loquituris applicable to the case before the court; for the followingreasons:-

(a) This is an accident where the vehicle overturnedand landedin a ditch without any collision withany other motor vehicle or object.

(b) This can only, have been due to the negligence ofthe person having the control and management of themotor vehicle, which, overturned and landedin aditch. However, a reasonable explanation wouldhave been admissible to disprove negligence. Thishas not been done in this case.

(c) It is not part of the defence of the respondent that this accident was due to either an act of God or some other reason beyond the driver's control,(d) It was also established that the second defendantwas the first defendant's authorised driver, theperson in control and management of motor vehicleKAC 703C on the date of the accident. This was nota matter in contention before the subordinatecourt.

In these circumstances it was the duty of the trial court toconsider, in the light of the evidence adduced whether or not thiswas an accident which would not normally have happened in theordinary course of events.

I accept that there is substantial merit in the argument ofthe counsel for the appellant/plaintiff that no reasonableexplanation was advanced or offered for the accident. The cause ofthe accident, or the manner in which it happened, was within theknowledge of the defendants. The plaintiff, who is the father ofthe deceased relied in this case on the doctrine of res ipsaloquiturnamely that the "presumption of fault is raised againstthe defendant. If he is to succeed in his defence, it must beovercome by contrary evidence. The burden is on the defendant toshow either that infact he was not negligent or the accident mightprobably have happened in a manner which did not connote negligence on his part... "

The burden is on the defendant to disprove his liabilityHalsbury's Laws of England, Vol.28, The decision made in HendersonVs. H.E. Jenkins & Sons (1970) AC 282 where the defendant's lorry failed to stop, the defendants were held liable under thisdoctrine. This decision, in my view, supports the argumentsadvanced by the counsel for the Appellant. It is noted that theLearned Trial Magistrate dismissed the Plaintiffs suit on thegroundthat the negligence of the driver was not established. Thisis clearly misdirection.

On the totality of the evidence adduced before the LearnedTrial Magistrate and having perused the judgment of the LearnedTrial Magistrate and the submissions made before the trial court,and upon the fresh consideration and evaluation of the entireevidence inits totality, this court comes to the conclusion thatthe Appeal before this court is well merited. Consequently theAppeal is allowed with costs.

As far as the question of assessment of damages is concernedthe court will hear further arguments in this respect prior tomaking an order.

Order accordingly.

Read, delivered and dated at Nairobi this 22nd day of Nov 2000.

SHAIKH M. AMIN

JUDGE