[2023] KEHC 25312 (KLR)

Ngombe v Charo alias Maurice Marisa & 5 others (Civil Appeal E024 of 2022) [2023] KEHC 25312 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25312 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E024 of 2022

DKN Magare, J

November 7, 2023

Between

Joseph Kithi Ngombe

Appellant

and

Maurice Karisa Charo alias Maurice Marisa

1st Respondent

Ismail Gona

2nd Respondent

Said Kenga

3rd Respondent

Enock Mwambura

4th Respondent

Kalama Kahindi

5th Respondent

Mwealungo Maisaki

6th Respondent

Judgment

1. This is an appeal from the Judgment and decree given in Malindi CMCC No. 120 of 2014 by the Hon. Dr. Julie Oseko, Chief Magistrate on 3/3/2022. The Appellant, who was the 2nd defendant filed a 12 paragraph memorandum of Appeal.

2. The grounds are propitious seemingly and repetitive. The grounds raise only one issue, whether the Court erred in finding the Appellant vicariously liable for the accident herein.

3. The Appellant should file concise Memorandum of Appeal. Under Order 42 Rule, 1 provides are doth: -“1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

4. The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

Duty of the first Appellate court 5. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

Pleadings 6. The Respondent, filed suit on 14/5/2014 for injuries arising from an accident on 17/11/2012 along Lamu Malindi Road at Borabora areas in Motor Vehicle Registration No. KAU 876 N. Daniel Sungu Kenga, drove the said motor vehicle negligently and as a result, the Respondents were injured. The 1st Defendant, who is not party herein was said to be the registered owner. The plaintiff’s suffered various injuries a pleaded in paragraph 6 of the plaint. That is not in issue in this appeal. The 2nd and 3rd defendant filed a defence through the firm of Gekanana & Company Advocates on 21/7/2014.

7. There was a request for Judgment against Mohamed Laku, the 1st Defendant therein. This was made on 28/10/2017 where he was served as stated the vehicle was off to the 2nd defendant.

8. A humongous amount of witness statements were also written and filed by the defence. On 5/8/2015, the Appellant herein appointed a different Advocate instead of their former advocates.

9. The trial appearing to have been protracted and acrimonious. The plaint was amended on 4/9/2014. The amount was without any useful purpose than to separate the description of the 1st defendant and the 2nd and the 3rd defendant. It was waster of judicial time to engage in such fruitless exercise.

10. The 2nd and 3rd defendant filed defence, where the 2nd defendant admitted to be in the authority and physical possession of the motor vehicle Registration No. KAV 876 N at the date of the accident driver was the striver.

11. The 2nd defendant averred that he did not point the 3rd defendant to remove the vehicle form the compound where it was being painted let alone authorize him to dive the same out of the compound.

12. The 3rd defendant denied that the drove the said motor vehicle negligently as alleged, lost control overturned and denied the particulars of negligence.

13. They invoked the doctrine of volenti non fit injunia stating that the plaintiffs were unauthorized passengers, hanging in dangerous position, had been warned by the 3rd defendant. They stated that they were knocked by a lorry which was passing by and did not stop. However, no particulars of negligence were enumerated except the pleadings of hanging dangerously.

Evidence 14. The Plaintiffs testified after High Octane exchange between advocates. The 1st Respondent testified that they were going for a football match. They were in a canter which he was seated at the back. He knew the owner as the canter. He stated that their coach used to hire the vehicle, though he knew nothing of payments. He stated that there were 40 people on top of the vehicle. The vehicle lost control. On cross examination. He admitted to be on the carrier (top of the canter. On cross examination by Gekana he stated that the passengers knocked each other. The second respondent, PW2 testified on 2/3/2016. He stated that 16 passengers were in the carrier. He was stood down mid stream.

15. On 1/2/2017 the matter proceed with a new PW2 – Ogwo Kwedhu. He stated the driver was avoiding an oncoming trailer. The passengers at the center were ripped off. The trailer was never found. On cross examination the witness stated that the statement in the file was from the driver. The driver was trying to save lives. On cross examination he stated that witnesses indicated that 2 vehicles scratched. The driver was trying to save lives. The file was pendign inquest. PW3 testified on 31/7/2018. He stated he did not make hire arrangements.

16. On 19/8/2019 Enock Mwamuba was head. He satisfied that there were over 40 people in the canter. On cross examination he stated that the vehicle is written no passengers allowed. He knew it is not allowed to carry passengers in a lorry. He admitted to have broken traffic rules. He knew it was dangerous to board the vehicle. People were thrown out of the vehicle because sides were low. He stated that he saw the other lorry vehicle. PW5 said Kenga testified that he was injured in the accident. He stated like the others that he did not see the owner that day. He was clear that the coach hired the vehicle. He knew it was a mistake to board an overladen bus. They were 11 per players and 13 substitutes per team of the 4 teams in the vehicle. PW6, the second plaintiff was recalled and testified. That he was a player. He did not know who hired the vehicles. There were over 40 people in the canter. The Appellant was not there when the vehicle was hired.

17. PW6 testified that he was in the vehicle there were many people in the vehicle about 50 people.

18. The plaintiffs’ case was closed.

19. The Defendant testified that the vehicle belonged to her. He is a police officer. He stated that the vehicle was his, he left it being fixed, then he was told that the vehicle was involved in the accident. On cross examination he agreed that the suit motor vehicle was his and the driver was driving the said motor vehicle. The vehicle has never carried passengers. The driver never told the Appellants that the vehicle had been hired. He stated that there was a warning that Not unauthorized to carry passengers. He had no vehicle. Though I note that this was already admitted PW4, the 4th respondent herein. The second witness was Renga Bosco Yeri, the teams, sports coach, a plumber and pastor. He stated a that he hired a canter from the 3rd Defendant. He stated that except for the 3rd Respondent the rest are not players. They were told not to eneter the vehicle but boarded again. At Koingoni a semi trailer came, the driver swerved to the left. The logs on top of the canvas were pushed off, some fell. He denied the statements her allegedly recorded with the Respondents. She maintained that he hired the vehicle from the 3rd defendants.

20. DW3 was the driver. He stated that the owner of the vehicle is his foster father. He stated that the vehicle was being repaired and painted.

21. He took the vehicle, was paid and transported. The vehicle was for hire. The 2nd defendant did not authorize. The people were alighting but when the vehicle started they continued boarding. Then a trailer came while he was at 40Kph. He swerved to avoid the on coming lorry. He notified the Appellant of the accident. He stated that the 3,000/= he was hired, he used to pay fine which he was charged. He did not steal the vehicle but took it.

22. On re- examination he stated that he took the vehicle without permissions of the owner.

23. DW4 Baya Ngure Nyale testified on the occurrence of the accident. He was a reference. They had 16 players but there were over 25 people.

24. The Defence case was closed. The court set judgment 17/11/2021. It was delivered on 3/3/2021 as follows: -a.100% liability against the defendantb.General damages for the respondent as follows: -i.1st Respondent 500,000ii.2nd Respondent 280,000iii.3rd Respondent 480,000iv.4th Respondent 450,000v.5th Respondent 200,000vi.6th Respondent 200,000

25. This necessitated the appeal. I had earlier described the unseeingly nature of the memorandum of appeal. Quantum is not in dispute. The only question in the matter is the liability of the owner, in the accident.

26. It is not disputed that this was a canter /lorry for carrying goods. It was being repaired and repainted. The court found that the vehicles was hired by the 3rd Defendant. The court found that the fact that the vehicle was not a PSV does not matter. The driver was charged. They stated that the plaintiffs established that they were passengers. The court found that the Appellant always gave evidence but this time he did not she found that the evidence of DW1 and DW2 is not truthful. She found that there is no way the driver could have gone to the Appellants bedroom took the keys and drove the lorry without permission. I don’t know the world the court was operating input he finding is not borne out of evidence. DW1 was categorical that the vehicle had not carried passengers before. The statement is presumptuous. It means that the offence of stealing needs to be scrabbled from our statute books. To paraphrase, for commuted effect, the is no way a thief can enter the complainants’ bedroom and steal a TV without the complainant’s permission. This is not the natural order of things. All witnesses were categorical that they only talked to the driver and paid him.

27. I do not see the contradictions between the defence witnesses their evidence was cogent and consistent. This was a lorry. The first presumption is that it is for carrying goods not passengers. The passengers were not carried in relation to the Appellants business. I agree with the court, in reliance of the case of Tabath Nduhu Kinyua vs Francis Muteva & Another, that the master is liable for actions of the servant, in occurs of employment. However, this applies in the cause of authorized work. Where a driver takes a vehicle on his own florils from a pantry and repair works to make an extra coin, there must be proof of Distensible authority.

28. In driving a passenger service vehicle, authority is presumed. In driving a vehicle for hire and record for goods, the authority can be presumed. However, to carry passengers in a goods lorry, there can be no ostensible authority. In the case of Anyanzwa v Gasperis [1981] eKLR, the court of Appeal (Law, Miller & Potter JJA) stated as follows: -“The latter case of Morgans v Launchbury and Others [1972] 2 All ER 606 is to the same effect. The House of Lords in that case held that to fix liability on the owner of a car for the negligence of the driver, not being a servant, it must be shown that the driver, at the material time, was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship it is necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions, and was doing so in performance of a task or duty delegated to him by the owner. The fact that the driver is using the car with the owner’s permission is not sufficient to establish vicarious liability. An owner who hires out his car to a person to be used for purposes in which the owner has no interest or concern escapes liability.Applying these principles to the facts of this case, it seems to me that:a)the driver was driving the microbus with the permission of the owners;b)the driver was not the owners’ servant;c)the driver was not driving at the owners’ request, express or implied;d)the owners had not delegated any task or duty to the driver, as they were under no duty to transport the tourists;e)the owners had no interest or concern in the purposes for which the microbus was being driven when the accident occurred, as they had no control over the vehicle or its driver at that time and did not retain or share any part of the money earned by the microbus when it was on hire to Hansmax;f)the fact that the microbus was being hired by Hansmax for a consideration is not sufficient in itself to make the owners vicariously liable for the negligence of Hansmax’s driver, as the microbus was not at the material time being driven for the benefit of the owners or for the joint benefit of the owners and the driver or his employer. It follows from all this that in my view the microbus had been hired out to Hansmax to be used for purposes in which the owners had no interest or concern; it was not being driven for the owner’s benefit, or on the instructions or at the request of the owners; the owners had not delegated any task or duty to the driver and had no right of control or direction over him.”

29. The said motor vehicle was taken without authority of the Appellant. Ipso facto there was no evidence on liability for any defendant other than the 3rd defendant. the 3rd Defendant was on a frolic of his own. he was hiring out the owner’s vehicle for his own benefit. it was not for the benefit of the owner. in Erastus K. M'mbijiwe v Joseph Kaura M'buria (Suing as the administrator of the estate of the Late Martin Muriungi Kaura [2014] eKLR, Justice A. MSHILA stated as doth: -“Without the evidence of the Investigating Officer as to the driver of the subject motor vehicle the only evidence left is that of the Appellants witnesses who were at the scene and their evidence is corroborated and supports the fact that the pair took the vehicle and went on a frolic of their own and that the milkman was the driver.There is no evidence tendered by the Respondent to demonstrate that the deceased was driving with the authority or that he was performing tasks or duties assigned to him, therefore this court finds that vicarious liability has not been established.”

30. It is not necessary to go into the liability of the 3rd defendant, noting that he did not appeal.

31. In the circumstances the appeal by the appellant herein is merited. I find and hold that the court erred by finding the 2nd defendant being the appellant herein vicariously liable for the actions of the 3rd defendant.

32. Therefore, I allow the appeal, set aside the judgment and decree of the Honourable Dr. Julie Oseko, Chief Magistrate against the appellant herein only.

33. In lieu therefore, I substitute the same, with an order dismissing with costs the suit against the Appellant in the lower court. I also note that though a request for judgment was made against the 1st defendant, there was no specific finding against the 1st defendant on liability. The Court dealt with only the 2nd and 3rd defendants.

34. Though the court indicated that the Defendants were liable 100%, only the 2nd and 3rd Respondents were held liable. The setting aside leaves only the 3rd Respondent, whose appeal is not before me today liable as per the decree of the court.

Determination 35. The upshot of the foregoing is that I make the following orders: -a.The appeal herein is allowed in limine.b.The judgment and decree of the lower court, given in Malindi CMCC 120 of 2014 by the Honourable Dr. Julie Oseko, Chief Magistrate, on 3/3/2022 is hereby set aside as against the 3rd defendant, the appellant herein.c.For avoidance of doubt, there is no judgment entered against the 1st defendant.d.In lieu of the judgment to so entered, I dismiss the suit against the Appellant in the lower court against the Appellant, Joseph Kithi Ngome with costs to be assessed.e.The Appellant shall have costs of 155,000/= for the Appeal herein.f.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Miss Nyabuto for the RespondentsNo appearance for the AppellantCourt Assistant - Brian