[2023] KEHC 19414 (KLR)

Musyoka v Macharia & another (Civil Appeal 113 of 2018) [2023] KEHC 19414 (KLR) (23 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19414 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 113 of 2018

A Mshila, J

June 23, 2023

Between

Muema Musyoka

Appellant

and

Joseph Macharia

1st Respondent

Catherine Maina

2nd Respondent

(Being an appeal from the Decree and judgment of Hon. C.A.Otieno Omondi (PM) delivered on 27th August, 2018 in Thika Civil Suit No. 115 of 2017)

Judgment

Background 1. By a Plaint dated on February 10, 2017, the Appellant herein sued the Respondents claiming compensation for injuries sustained on or about the 21/9/2016 along Thika Super Highway near Kahawa Sukari Junction, while he was a lawful pedestrian seated on a form besides a banda off the road, that motor vehicle registration number KCD 892U Toyota Station Wagon was so negligently driven by the 2nd respondent, that it veered off the road and knocked him down.

2. The Respondents filed their Defence denying any liability for the accident. In particular, the Respondents stated that if any occurred the same was caused by the driver of motor vehicle registration number KAX 781.

3. The matter proceeded to a full hearing. At the conclusion of the trial, the Honourable Trial Magistrate dismissed the suit with costs to the defendants.

4. The Appellant is dissatisfied with the lower Court’s judgment and has preferred the present Appeal. In his Memorandum of Appeal, he has listed five grounds of appeal as follows:a.The Learned Magistrate erred in law and fact in finding that the appellant did not prove liability against the overwhelming evidence presented to court.b.The Learned Magistrate erred in disregarding the submissions on record and especially the respondents which do not contest the registration number of the said respondents’ motor vehicle hence occasioning a miscarriage of justice.c.The Learned Magistrate erred in failing to appreciate that the threshold of proof was on a balance of probability and not beyond reasonable doubt.d.The Learned Magistrate erred in arriving at the wrong conclusion on liability.e.The Learned Magistrate erred in dismissing the appellant’s suit against the weight of the evidence tendered.

5. The court directed the parties to canvass the appeal by way of written submissions.

Appellant’s Submissions. 6. The appellant submits that the vehicle’s registration number is correctly depicted as KCD 892U but an error was made in the witnesses statement where the vehicle’s registration number is indicated as KCD 982U. However, the correct registration number is referred to in the defence and submissions. The appellant submitted that the respondents were not claiming that liability was not proved if anything they were claiming that the appellant should share liability. The appellant contended that the mix up in the registration details was not fatal as the correct numbers had been captured in the plaint and the exhibits produced. In any case, the same was never an issue with the respondents. The court was urged to allow the appeal and find the respondents 100% liable for the accident.

Respondents’ Submissions 7. The Respondents submitted that the court correctly found that the appellant’s evidence was at variance with his pleadings as regards which vehicle caused the accident. It was submitted that the court can dismiss the suit suo moto as it is not a must for the other party to raise the issue. It was submitted that an actual amendment must be done to give effect to a party’s intention. Reliance was placed on the case of Joshua Batisi MkomerevsLubao Jaggery Factory Limited (2015) eKLR where it was held that a party is bound by its pleadings.

Issues For Determination 8. Having read and considered the submissions by both parties and the case law relied upon. The only issue arising for determination is whether the variance in the motor vehicle registration number was fatal.

9. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle &anothervs. Associated Motor Boat Co. Ltd &others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles 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 conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

Evidence On Record 10. At the hearing of the case in the trial court, Muema Musyoka (PW1) adopted his witness statement as his evidence in court. He also produced the Plaintiff’s documents. He testified that he was at Kahawa Sukari at a stage on the pavement when he was hit by motor vehicle registration number KCD 982U. That he was treated at Ruiru Sub County Hospital where he visited for 4 days consecutively. He claimed that he was not completely healed as he experiences chest pains and can only lift his shoulder up to a certain limit. He blamed the driver of KCD 982U for the accident. He claimed that he did not see motor vehicle registration number KAX 781J.

Analysis 11. The trial court in its judgment dismissed the suit as against the defendants. The reason given for the dismissal was that a party is bound by his pleadings. In the Plaint, the plaintiff indicates the registration number of the suit motor vehicle as KCD 892U while in the witness statement the same is indicated as KCD 982U. The trial court in its judgment stated that the plaintiff’s evidence was at variance with his pleadings.

12. In his submissions the appellant contends that this was an error. That the correct number being KCD 892U was the number stated in the plaint, police abstract and the copy of records. He further states that the respondents in their defence referred to the correct registration number. The only document which has the incorrect number is the witness statement.

13. The respondents on the other hand submitted that the failure to raise the issue of the incorrect number plates caused the court to act suo moto and dismiss the suit. They agreed with the court that parties are bound by their pleadings.

14. It is this court’s considered view, that the appellant’s assertion that the mix up in the registration numbers was an error must stand. This is because the appellant had correctly indicated the correct number plates in the Plaint as captured in the police abstract. Similarly, the copy of records obtained by the appellant was for motor vehicle registration number KCD 892U belonging to Joseph Macharia the 1st Respondent. Had the Appellant sued the wrong person because of relying on the wrong number plate then it would have been correct to dismiss the suit in the absence of an amendment.

15. The respondents rightfully responded to the defence by filing their defence. It is important to note that they relied on the correct registration number as indicated in the Plaint. At this point, there was no doubt in their mind that they were the ones who were being sued for an accident that occurred on 21/9/2016 involving their motor vehicle registration number KCD 892U.

16. This Court concurs with the appellant that the error in the registration number cannot be fatal as it was clear as between the parties that it was the motor vehicle belonging to the 1st respondent that caused the accident that injured the plaintiff. This court is satisfied that the error was not fatal and the same can be excused. The appellant’s memory could have been faint, the accident having occurred one year since he appeared before the court to testify.

17. See the case of JM (A minor suing through his father and next friend) MMvMbithi Kimolo [2021] eKLR where Dulu J allowed an appeal where there was an error in regard to the registration numbers.

18. Having re-evaluated the evidence on record as required this court is satisfied that the Learned Trial Magistrate erred in arriving at its decision that the variance in the motor vehicle registration number was fatal; and this court is satisfied that there was no challenge by the respondents on the issue of liability and finds that the appellant proved his case to the desired threshold;

19. There being no challenge on the issue on quantum this court will therefore not belabor itself in re-evaluating this issue and will adopt the trial court’s proposed award of Kshs 100,000/- for general damages and Kshs 2500/- for special damages.

Findings & Determination 20. For the forgoing reasons this court makes the following findings and determinations.i.The appeal is found to have merit and it is hereby allowed.ii.The judgment delivered on August 27, 2018 in Thika Civil Suit No 115 of 2017is hereby set aside.iii.Judgment is hereby entered in favor of the Plaintiff; On liability the respondents are found to be 100% liable for the accident; On quantum, an award of Kshs 100,000/- is made for General Damages; The claim for Kshs 2500/-for Special Damages is hereby allowed.iv.There shall be interest on (iii) at court rates;v.The appellant shall have costs in the trial court and on appeal;Orders Accordingly.

DATED SIGNED AND DELIVERED ELECTRONICALLY AT KIAMBU THIS 23RD DAY OF JUNE, 2023. A. MSHILAJUDGEIn the presence of:-Mourice Court AssistantMrs. Muthai for the appellantSharon for the respondent