[2023] KEHC 19569 (KLR)

Mwita v Njeri (Civil Appeal 68 of 2018) [2023] KEHC 19569 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19569 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 68 of 2018

A Mshila, J

June 30, 2023

Between

Masisi Mwita

Appellant

and

Damaris Wanjiku Njeri

Respondent

(Being an appeal arising from the Judgment/Decree by Hon. B.J.Bartoo (RM) delivered in Thika in CMCC No. 342 of 2010 on the 5th day of November, 2015. )

Judgment

Background 1. By a Plaint filed on 6/04/2010, the Respondent herein prays for judgment as against the Appellant for special damages, general damages, costs and interest at court rates for injuries that she sustained on or about August 8, 2007when she was a lawful passenger in motor vehicle registration number KAU 666B along Thika-Nyeri Road when at Kandara Fly-Over the Appellant either by himself, his authorized driver, servant and/or agent drove the said motor vehicle so negligently that he caused the same to lose control, veer off the road, roll several times and overturn, as a result of which she sustained injuries.

2. The appellant filed his Defence denying any liability for the accident. In particular, theappellant denied the particulars of negligence attributed to the driver of the accident motor vehicle as set out in the plaint.

3. The matter proceeded to a full hearing. At the conclusion of the trial, the Honourable Trial Magistrate entered judgment on liability for the Plaintiff as against Defendant at 100%. On quantum, the Honourable Trial Magistrate entered judgment as follows:a.General damages………………………………Kshs. 100,075/=b.Special damages……………………………....Kshs. 500/=Plus costs and interestTotal Kshs. 100,500/=

4. The appellant being dissatisfied with the lower Court’s judgment and has preferred the present Appeal. In his Memorandum of Appeal, he has listed seven grounds of appeal as follows:a.That the learned trial magistrate erred in law and in fact by holding that the appellant herein was in an agency relationship with Mr. Gilbert Mutie the driver of Motor Vehicle Registration NO. KAU 666B on the fateful day.b.That the learned trial magistrate erred in law and in fact by assessing liability at 100% for the plaintiff against the defendant.c.That the learned trial magistrate erred in law and in fact disregarding evidence of the appellant/defendant that the Motor Vehicle was a private Motor Vehicle and Mr. Gilbert Mutie had personally borrowed the vehicle from the appellant to ferry his (Gilbert Mutie) relatives to a funeral and Gilbert was the one driving it on the fateful day.d.That the learned trial magistrate erred in law and in fact by disregarding the proceedings in APA Insuarance Co. Ltd vMasisi M WitaCMCC 4070 of 2008 which case Gilbert being a witness to the appellant herein admitted having borrowed Motor Vehicle from theappellant.e.That the learned trial magistrate erred in fact and in law to find that driver was under the instructions of the appellant herein.f.That the Learned Trial Magistrate erred in fact and in law by finding that the defendant/appellant herein had a special relationship with the driver.g.That the Learned Trial Magistrate erred in law and in fact in failing to appreciate the appellant’s submissions and/or failing to give reasons for disregarding the submissions and the authorities in support thereof.

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

Appellant’s Submissions. 6. The appellant submits that the trial court erred in holding that there was an agency relationship between the appellant and Gilbert who was driving the vehicle at the time of the accident by placing reliance on the case between APA insurance and the appellant. The appellant submits that Gilbert while driving the said motor vehicle was not under any express or implied instruction to act for the appellant as he was driving his family to Murang’a for a funeral. Reliance was placed in the case of Jane Wairimu Turanta v Githae John Vickery & 2 others (2013) eKLR where it was held that ownership was not sufficient to create vicarious liability for the negligence of anyone who happened to drive the vehicle.

7. In conclusion, the court was urged to allow the appeal as the driver at the time of the accident was not his agent.

Evidence on Record 8. During the hearing at the trial court, Damaris Wanjiku Njeri (PW1) testified that that on 8/8/2007 she was travelling aboard motor vehicle registration number KAU 666B along Thika-Nairobi Highway. She stated that while at Kandara Fly- Over the vehicle was over speeding causing it to veer off the road and it overturned. As a result, she sustained bruises on the face, wound on the back and experienced back pains. That she was rushed to Naidu Hospital where she received treatment. She produced the treatment note, P3 form, medical report, police abstract and a copy of records. She blamed the driver of the accident motor vehicle for speeding.

9. Masisi Mwita (DW1) testified that on 8/8/2007 he gave his car to his friend Gilbert to ferry his relatives to Thika. He later heard that they had been involved in a road traffic accident. He stated that he had no objection to the Plaintiff being compensated as long as his claim with APA insurance was settled. He produced proceedings in the suit between APA insurance and himself.

Issues for Determination 10. Having read and considered the submissions by the appellant and the case law relied upon. The main issue for determination arising is whether the appellant duly consented to the use of the motor vehicle by the driver and was therefore vicariously liable.

Analysis 11. 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 &another v 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..."

12. The appellant submits that Gilbert the driver at the time of the accident had borrowed the motor vehicle from him to attend a funeral therefore, there lacks an agency relationship as held by the trial court. This was because Gilbert was using the motor vehicle for his own use and not for the benefit of the appellant.

13. That for the appellant, to be vicariously liable for an accident caused by Gilbert who was driving the accident motor vehicle, it must be established that he must have authorized him to drive the said motor vehicle on his own behalf.

14. In this case, there is direct evidence directly from the appellant himself that on 8/08/2007 he had given his friend Gilbert to ferry his relatives to Thika for a funeral. It follows that Gilbert had borrowed the motor vehicle with the consent of the appellant and he (the appellant) was therefore vicariously liable for Gilberts negligent acts in the use of the motor vehicle.

15. See the case of Newbold P in MuwongevAG of Uganda[1967] E A 17 where it was stated as follows:“The law is so long as the driver’s act is committed by him in the course of his duty, even if he is acting deliberately, wantonly, negligently, or criminally, or even if he is acting for his own benefit or even if the act is committed contrary to his general instructions, the master is liable.”

16. Having re-evaluated the evidence on record as required to do and this court has come to its own independent conclusion that the Learned Trial Magistrate correctly arrived at its decision in finding that the appellant was vicariously liable for the actions of the driver as such he was held 100% liable for the accident.

Findings & Determinations 17. For the forgoing reasons this court makes the following findings and determination;i.This court finds that the trial court did not err in finding that there was a relationship between the appellant and the driver and in finding the appellant to be vicariously liable;ii.The appeal is found to be devoid of merit and it is hereby dismissed; The judgment of the trial court is hereby upheld.iii.Costs to the respondent.Orders Accordingly.

DATED SIGNED AND DELIVERED ELECTRONICALLY AT KIAMBU THIS 30TH DAY OF JUNE, 2023. A.MSHILAJUDGEIn the presence of:Julia –Court AssistantWando for the AppellantN/A for the Respondent