[2022] KEHC 499 (KLR)

Ochwangi v Bashir & 2 others (Civil Appeal 39 of 2013) [2022] KEHC 499 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 499 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal 39 of 2013

JR Karanja, J

May 12, 2022

Between

John Micah Ochwangi

Plaintiff

and

Ali Bashir

1st Defendant

John Kamau Kinyanjui

2nd Defendant

Christine Ojiambo

3rd Defendant

(This appeal arises from the decision and the judgment of the principal Magistrate in Busia CMCC No.367 of 2010, in which the appellant, John Micah Ochwang, was sued together with the second respondent, John Kamau Kinyanjui, by the first respondent, Ali Bashir, for damages resulting from a road traffic accident which occurred on March 3, 2010 along the Busia - Kisumu Road near the Busia shopping complex involving the first respondent (plaintiff) as a pedestrian and a motor vehicle Reg. No.KAW 598N Toyota Saloon belonging to the appellant (second defendant) and driven at the time by the second respondent (first defendant))

Judgment

1. This appeal arises from the decision and the judgment of the principal Magistrate in Busia CMCC No.367 of 2010, in which the appellant, John Micah Ochwang, was sued together with the second respondent, John Kamau Kinyanjui, by the first respondent, Ali Bashir, for damages resulting from a road traffic accident which occurred on March 3, 2010 along the Busia - Kisumu Road near the Busia shopping complex involving the first respondent (plaintiff) as a pedestrian and a motor vehicle Reg. No.KAW 598N Toyota Saloon belonging to the appellant (second defendant) and driven at the time by the second respondent (first defendant)

2. It was pleaded that on that material date, the appellant’s said motor vehicle was so negligently, recklessly and/or carelessly driven by the second respondent such that it knocked down and injured the first respondent who was walking along the road as a pedestrian.The first respondent therefore filed the present suit claiming general and special damages together with costs of the suit and interest against the appellant and second respondent.

3. In the process, at the instance of the appellant, a third party notice was issued against the third respondent, Christine Ojiambo, on the basis that the material motor vehicle was in her possession and custody when the accident occurred.The appellant resisted the claim on the basis of the averments contained in his statement of defence. His claim against the third party/respondent was also resisted on the basis of the averments contained in the third party’s statement of defence.The second respondent did not resist the claim resulting in an interlocutory judgement against him on the October 1, 2010.

4. In the trial pitting the first respondent (plaintiff), the appellant (second defendant) and the third respondent (third party) evidence was led by the plaintiff and the second defendant but not the third party.The plaintiff (first respondent) called two witnesses i.e, Sammy Obukhuma (PW 2), a clinical officer at Busia District hospital and Cpl. Margaret Chebet (PW 3), a traffic police officer at the Busia traffic base. The appellant (second defendant) did not call any witness.

5. The trial court upon due consideration of the evidence placed before it found that both defendants (i.e appellant and second respondent) were fully liable for the plaintiff’s (first respondent) injuries and awarded the plaintiff a sum of ksh.200,000/= as general damages for pain, suffering and loss of amenities together with special damages in the sum of ksh.4,070/= and costs of the suit plus interest.There was no substantial judgment and/or orders made against the third respondent (third party).

6. Being dissatisfied with the decision of the trial court, the appellant preferred the present appeal anchored on the grounds set out in the memorandum of appeal dated and filed herein on August 28, 2013. The hearing of the appeal proceeded by way of written submissions which were filed on behalf of the appellant by Bogonko, Otanga & Co. Advocates and on behalf of the first respondent by Omondi & Co.Advocates. The submissions by the third respondent were filed on her behalf by Ashioya & Co. Advocates.

7. As was held in Selle v Associated Motor Boat Co. [1968] EA 123, the duty of this court was to reconsider the evidence and arrive at its own findings bearing in mind that the trial court had the benefit of seeing and hearing the witness.In that regard and in relation to the key issue of liability, it was evident that the occurrence of the accident was not disputed. This was in any event, established through the testimony of the plaintiff (PW 1) and the traffic police officer (PW 3). They both indicated that the vehicle was carelessly and/or recklessly driven by the first defendant (second respondent) such that it veered off the road and hit the plaintiff (first respondent) who was off the road.

8. The ownership of the vehicle was also not disputed or substantial disputed. It was the property of the appellant (second defendant) at the time of the material accident even though he alleged that it was in the possession of the third respondent during the accident. He vehemently denied that the second respondent was his driver and/or agent and implied that he (driver) was a driver and/or agent of the third respondent. However, the fact that the vehicle belonged to him implied unless shown otherwise, that it was driven with his authority and consent by its driver who impliedly was his agent, employee and/or servant.

9. There was no evidence that the said driver was in fact an employee or agent of the third respondent and that he drove the vehicle with her consent and authority. Even if that were the case, the appellant (second defendant) could not escape liability for the negligent acts of the driver as he was the owner of the vehicle and had given possession thereof to the third respondent who was not precluded from using it as there was no evidence to that effect.It did not matter that the driver was authorized to drive the vehicle by the appellant or the third respondent as the appellant was the owner of the vehicle and had allowed the third respondent to use it.

10. There was sufficient evidence that the accident was actually caused by the second respondent’s reckless and/or careless manner of driving the vehicle hereby causing the first respondent to suffer bodily injuries and the resultant loss and damages.The second respondent was indeed fully to blame for the accident. He carried that blame with the owner of the vehicle (appellant) “mutatis – mutandis” as vicarious liability of an employer of a driver is not pegged to the employee’s (driver) liability but negligence.

11. It was herein established on a balance of probabilities that the second respondent was directly or indirectly a servant/employee of the appellant and was acting in the course of his employment as a driver when the accident occurred. There was no sufficient cause for the appellant to take out a third party notice against the third respondent. In any event, he did not provide sufficient evidence to establish his claim against the third respondent.The finding by the trial court that the appellant and the second respondent were 100% liable for the first respondent’s injuries is hereby upheld.

12. With regard to quantum of damages, the evidence by the clinical officer (PW 2) indicated that the plaintiff suffered minor soft tissue injuries. This was more or less confirmed by the medical report (P.Ex 6 (a) prepared and signed by a doctor Aluda.The award of ksh.200,000/= made by the trial court as general damages for pain, suffering and loss of amenities cannot be said to be excessive as it was based on a judicious exercise of discretion regard being given to comparable cases cited in the parties final submissions.As for special damages, the amount awarded under that head was what was specifically proved by necessary evidence i.e. ksh.4,070/=.

13. In sum, all the grounds in support of the appeal are hereby overruled for want of merit. This appeal is therefore dismissed in its entirety with costs to the first and third respondents.

J.R. KARANJAHJ U D G EDELIVERED & SIGNED THIS 12TH DAY OF MAY 2022