[2022] KEHC 10041 (KLR)

Ngeera & another v M’Tiirai & 2 others (Civil Appeal 35 of 2020) [2022] KEHC 10041 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10041 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal 35 of 2020

EM Muriithi, J

May 10, 2022

Between

Simon Gitonga Ngeera

1st Appellant

Charls Muthui Kariuki

2nd Appellant

and

Francis Mutwiri M’Tiirai

1st Respondent

Gerald Kirima Mugambi

2nd Respondent

Silvanus Kizito

3rd Respondent

(Being an appeal from the Judgment of Hon. E. Tsimonjero- RM delivered on 6th May 2020 in Meru CMCC NO. 45 OF 2017)

Judgment

Introduction 1. The 1st Respondent who was the plaintiff in the Lower Court sued the Appellants as the driver and owner respectively of motor vehicle registration number KAU 523R, claiming general damages for pain, suffering and loss of amenities, special damages of Kshs. 7,650, interest on special damages at court rates from the date of filing suit and costs of the suit and interest on general damages at court rates.

2. The plaintiff’s case was that while lawfully travelling as a passenger in said motor vehicle on 16th September 2014 along Meru-Nanyuki road he sustained severe bodily injuries caused by the 1st Appellant’s negligent driving. He averred that he suffered a compound tibia and pelvic fractures, severe head injury and soft tissue injuries to the left elbow, inability to smell, and inability to extend left elbow.

3. The Appellants filed a statement of defence dated 5th April 2017 and amended on 8th October 2019 denying the claim and blaming the incident on the 1st Respondents negligence and in the alternative on the negligence of 3rd parties (being the 2nd and 3rd Respondents) who were the owners of motor vehicle registration no. KAM 985T and KBW 897D Toyota Hilux respectively. Though in the particulars at paragraph 6 they only attributed the blame the owner of KBW 897D

4. Subsequently, the Appellants served a Third Party Notice on the 2nd and 3rd Respondents but they did not enter appearance and Interlocutory Judgment was entered against them on the 21st January 2020.

5. The mater proceeded for hearing on the 6th December 2019 with each party calling two witnesses and in a judgment delivered on 6th May 2020, the court entered liability in the ratio of 50:50 between the appellants and the 2nd and 3rd Respondents; and awarded general damages of Kshs. 1,000,000, special damages of Kshs.5,375, costs of the suit and interest at court rates from the date of judgment until payment in full.

6. The Appellants being aggrieved by the said judgment preferred this appeal

The Appeal 7. The Appellants filed their Memorandum of Appeal dated 8th May 2020 raising 16 grounds of appeal which may be summarised into two as follows;a.The Learned trial Magistrate erred in law and fact in apportioning liability of 50% against the Appellants against the weight of the evidence.b.The Learned trial Magistrate erred in law and fact in awarding quantum to the 1st Respondent at an excessive amount of Kshs. 1,005,375 in the circumstances, considering the evidence brought before court and the principles of law.

8. They seek that the appeal be allowed, the trial courts judgment be set aside with costs of the appeal and of the trial court.

9. The appeal proceeded by way of written submissions although the appellants never filed any.

10. The 2nd and 3rd Respondent never entered appearance.

Submissions 11. The 1st Respondent via submissions dated 22nd October 2021, submitted on liability and quantum of damages averring that apportionment of blame is an exercise of judicial discretion which should not be interfered with unless based on no evidence. That the trial court erred in apportioning liability to the 2nd Respondent when as per the police abstract he was the owner of KAM 985T which was never mentioned in the appellants amended statement of defence. He urged the court to re-evaluate the evidence and apportion liability afresh between the appellants and the 3rd Respondent. On liability he submitted that the trial court considered the injuries suffered by the 1st Respondent and the cited authorities by the parties, the general damages awarded was not based on misapprehension of evidence or on any wrong principle nor was it inordinately high and he urged the court not to interfere with the trial court’s decision on the award of damages. He relied on the case law authorities of Isabella Wanjiru Karanja V Washington Malele [198] eKLR, Kemfro Africa Ltd t/a Meru Express services(1976) & Another V Lubia & Another [1985] eKLR, Mariga V Musila [1984] eKLR, Mohamed Mahmoud Jabane V Highstone Butty Tongoi Olenja [1986] eKLR.

The trial 12. The 1st Respondent testified as PW1 that on the 16th September 2014 he was travelling in motor vehicle KAU 523R as a passenger when he dozed off and regained consciousness while being transferred to Nanyuki District Hospital where he was informed that he had been involved in a road accident as a result of which he sustained serious injuries. He produced a copy of his ID, case summary from Central Provincial General Hospital Nyeri, receipt for medical expenses, P3 form police abstract, motor vehicle search, receipt for motor vehicle search, demand letter, statutory notice and a medical report.

13. PW2 NO. 68495 PC Daniel Chacha attached to Meru police station- Traffic records, testified that the accident occurred on 16/9/2014 at around 7:40pm along Meru-Nanyuki road. The Toyota matatu KAU 525R was carrying fare paying passengers when it collided head on with motor vehicle registration KBW 897 Toyota Hilux, where some passengers died on the spot. He attributed the accident to a stationery lorry which was on the road and the Toyota Hilux tried to overtake it thus colliding with the matatu. The driver of the stationery lorry was charged and the matter was still pending.

14. The defence called 2 witnesses DW1 No. 101212 PC Josephine Njoki attached to Meru Police Station Traffic Office testified that the accident occurred o 15/9/2014 at around 7:40pm along Meru- Nanyuki road involving motor vehicle KAU 523R Matatu owned by Charles Ndumiri and KBW 897D Toyota Hilux owned by Sylvanus Epuka. There was a stationery vehicle KAM 985T Isuzu Canter which had mechanical problems, and when KBW 897D got to the scene it swerved to the right to avoid hitting the stationery vehicle but unfortunately collided with the matatu KAU 523R. The investigating officer blamed both the stationary vehicle and the Toyota Hilux, the driver of the matatu was not to blame as he was on his rightful lane.

15. DW2 Joseph Mathenge testified to have been a passenger in motor vehicle KAU 523R when at around 6:40pm there was a stationery lorry on the road and an oncoming vehicle which joined their lane and they collided head on, the driver saw the stationery lorry but not the pick-up.

Issues for determination 16. In this instant appeal the contention appears to be two-fold, whether liability was apportioned correctly and whether quantum awarded was excessive to warrant interference by an appellate court?

Determination. 17. This being a first appeal, parties are entitled to a rehearing, re-evaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. see Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where duty of the first appellate court is reiterated:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:-“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

18. On liability, the trial court found the appellants and the 3rd parties to be equally liable and apportioned liability in the ratio of 50:50 between them. It held that the accident occurred between 1700hr and 1730hours thus it was reasonable that there was visibility and the appellant driver ought to have demonstrated common sense and depict careful and professional driving skills.

19. It is not clear how the trial court came up with this time frame as the plaintiff never gave timelines for the incident and it was only PW2 and DW1 the police officers who gave the time for the incident as 7:40pm, from a perusal of the plaintiff’s documents the police abstract also indicates the time of incident as 7:40pm. I can only infer that the accident happened at 7:40pm and not 5:00pm as indicated by the trial court.

20. If it is accepted that the accident occurring at 7:40pm, it would ultimately alter the conclusions of the trial court, which had held that the accident occurred during daylight thus there was visibility. From the timeline it is reasonable to conclude that it was nighttime, thus the issue of visibility ought not to have arisen. From the totality of the evidence there was nothing produced to show that the appellant driver could have done more to avoid the accident, he was driving on his lane, no evidence was tendered to show he was speeding, driving in reckless or careless manner. The 2 police officers PW2 and DW1 attributed the accident to the drivers of KBW 897D and KAM 985T as the latter was stalled in the middle of the road and the former tried to overtake it and went into the appellant’s lane. There is nothing on record showing that the appellant driver was negligent nor is there evidence on which a finding of contributory negligence to any degree can be based.

21. In Statpack Industries v James Mbithi Munyao [2005] eKLR, the Court (Visram, J. as he then was) stated;“Coming now to the more important issue of “causation”, it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same.Here, in this case, the Respondent did not lead any evidence to connect his injuries or accident to an act or omission on the part of the Appellant. The real cause of the accident was not established. The learned Magistrate ought to have asked herself, as I have repeatedly tried to ask myself, “so what exactly did the employer do or did not do that caused this accident?” And I cannot find the answer in the testimony adduced before the lower court.”

22. It cannot be sufficient for a passenger in a motor vehicle to allege negligence on the part of the driver for liability to be apportioned and damages awarded. It must be proved on a balance of probability that the actions or inactions of the driver ferrying them were negligent and led to the occurrence of the accident.

Onus of proof 23. The Court of Appeal in East Produce (K)Limited v Christopher Astiado Osiro, Civil Appeal No.43 of 2001 held that:“It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged, the position was laid in the case of Kiema Mutuku Vs Kenya Cargo Hauling Services Ltd (1991)….. in which the Court held that:“There is as yet no liability without fault in the legal system in Kenya, and a Plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

24. Indeed, section 107 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 108 is also to the effect that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, while section 109 states that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

25. There was no evidence presented to the lower court to enable the court to draw a fair conclusion that the accident was caused by the negligence and/or breach of duty of care by the Appellant driver. The inescapable conclusion is that, the accident was entirely due to the negligence of the lorry driver and the Hilux Toyota Pick-up driver and there is no valid basis for apportioning liability against the Appellants.

Liability apportioned to the 3rd parties being the 2nd and 3rd Respondents. 26. There was no direct claim by the 1st Respondent against the 2nd and 3rd Respondent as they were joined in the suit as a Third Parties. The 1st Respondent’s case was wholly against the Appellants and that the Plaint did not contain any cause of action against the Third Parties. As per the 3rd Party Notices dated 12th January 2018 and 26th January 2018 issued to the 3rd and 2nd Respondents respectively they sought for indemnity and/or contribution against the Appellants in the event they were held liable to the 1st Respondent.

27. In Sammy Ngigi Mwaura Vs. John Mbugua Kagai & Another [2006] eKLR where the High Court (Omondi, Tunya, J.) held that“A mere collision of two vehicles or of a vehicle and a person by itself without proof of negligence is insufficient for establishing liability. Throughout the evidence, and as correctly submitted by Mr. Aggarwal for the 3rd party, I am unable to find any material before me on which to hold the defendant at all liable to the plaintiff. The 3rd party has not been directly sued on its own right and has only been brought in by the defendant for indemnity should he be found liable. As against the plaintiff, there being no suit between them, I would also find him not liable for purposes of this suit. His liability in this suit would only be through the defendant and, to the defendant in indemnity. The suit is dismissed with costs.”

28. On Appeal, the Court of Appeal (Omolo, POnyango Otieno and Deverell, JJA,) upheld the decision of the High Court and stated:“We have no hesitation in deciding that the learned Judge was entirely correct in his decision as to the lack of any liability resting upon the Third Party in view of the state of the pleadings. We also share in his lack of comprehension as to why the lorry driver and his employer were not sued as sole defendants or co- defendants at the outset of the case….In our view, it should be noted that the three sub paragraphs (a), (b) and (c) or Order 1 Rule 14(1) are each in the alternative and that the only alternative chosen to be relied upon by the Defendant/Respondent in his Third Party Notice was a claim for “indemnity or contribution to any Judgment that may be entered in favour of the Plaintiff in respect of the Plaintiff’s claims as is set out in the plaint.If, as was the position in this case, there was no Judgment entered in favour of the Plaintiff against the Defendant for the very good reason that there was no evidence of any negligence by the Defendant or his employee, there could not be any amount in respect of which the Defendant could be indemnified by the Third Party or to which the Third Party could contribute however negligent the Third Party or its employee, driver of the lorry may have been.This is a sad case for the dependants of the deceased arising from the suing of the wrong party in the first place which could not, in the circumstances, be properly remedied through the joinder of a Third Party. The blame for the said situation must lie wholly with the Appellant’s legal advisors who chose to sue the wrong party.”

29. Having found that there was no liability established on the appellants for failure to produce evidence of negligence on the part, and there being no suit by the 1st respondent against the third parties, the issue of liability of the 3rd Parties, and the quantum of damages against them, does not arise. While the Court sympathizes with the 1st Respondent and notes that he is entitled to damages for injuries suffered, this was a case where he sued the wrong party, an innocent party.

ORDERS 30. Accordingly, and for reasons set out above the Court makes the following orders:1. This appeal is allowed with each party bearing their own costs of the Appeal.2. The Judgment and decree of the trial court herein is set aside, and the 1st Respondent’s case in the trial court against the Appellant, is dismissed.3. There shall be no order as to costs in the trial court.

Order accordingly.DATED AND DELIVERED THIS 10TH DAY OF MAY 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Kimondo Gachoka & Co. Advocates for the Appellants.M/S J. Muthomi & Co. Advocates for the 1st Respondent.