[2023] KEHC 19254 (KLR)
The High Court found that the trial court erred in apportioning liability equally between the appellant, a pillion passenger, and the respondent, the vehicle owner. There was no evidence that the appellant contributed to the accident. The respondent, having failed to initiate third party proceedings against the...
Source-derived case information.
- Citation
- [2023] KEHC 19254 (KLR)
- Parties
- Appellant: Bonface Ouma Olando; Respondent: Gemini Stores Limited
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E010 of 2022
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Trial court's apportionment of liability set aside. Respondent held 100% liable. Costs of the appeal awarded to the appellant.
- Judges
- WM Musyoka
- Legal Topics
- Road Traffic Accidents, Apportionment of Liability, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonface Ouma Olando
Appellant
Gemini Stores Limited
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in apportioning liability equally between the appellant and respondent in the absence of evidence of contributory negligence by the appellant.
- 2 Whether the respondent should bear 100% liability where the alleged negligent third party was not joined to the proceedings.
Ratio Decidendi
The High Court found that the trial court erred in apportioning liability equally between the appellant, a pillion passenger, and the respondent, the vehicle owner. There was no evidence that the appellant contributed to the accident. The respondent, having failed to initiate third party proceedings against the motorcycle rider or owner, could not shift liability. The law requires that a party against whom negligence is alleged must be joined to the proceedings to allow for a fair hearing. In the absence of such joinder, the respondent must bear 100% liability. The evidence established, on a balance of probabilities, that the respondent's vehicle was defective (only one headlamp working),...
Court Disposition
Appeal allowed. Trial court's apportionment of liability set aside. Respondent held 100% liable. Costs of the appeal awarded to the appellant.
Orders
- The holding by the trial court that liability be apportioned at 50:50 is set aside.
- Liability is apportioned at 100% against the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
Olando v Gemini Stores Limited (Civil Appeal E010 of 2022) [2023] KEHC 19254 (KLR) (30 June 2023) (Judgment)
Neutral citation: [2023] KEHC 19254 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E010 of 2022
WM Musyoka, J
June 30, 2023
Between
Bonface Ouma Olando
Appellant
and
Gemini Stores Limited
Respondent
(Appeal from judgment and decree of Hon. FY Kulecho, Senior Resident Magistrate, SRM, in Busia RMCCC No. 27 of 2020, of 14th March 2022)
Judgment
1. The appellant had sued the respondent, at the primary court, for compensation in respect of injuries that he sustained, following a traffic road accident on November 20, 2018, along Mumias-Busia road. The appellant was a pillion passenger on an unidentified motorcycle, which was knocked down by vehicle registration mark and number KBW 243W, said to have belonged to the respondent, and liability was attributed to the respondent, on account of negligence. The respondent filed a defence, denying the accident, and everything else pleaded in the plaint. In the alternative, the respondent pleaded that, if any accident occurred, it must have been due to negligence on the part of the appellant, or he contributed to it.
2. A trial was conducted. On liability, the court held both parties equally liable, in the absence of independent evidence to resolve the issue of liability. On quantum, the court assessed general damages at Kshs 250, 000. 00, and specials at Kshs 6,000.
3. The appellant was aggrieved, hence the appeal. Only 2 grounds are listed, around the issue of liability.
4. The appeal was canvassed by way of written submissions.
5. The appeal turns on only one issue, liability.
6. The appellant was a pillion passenger on a motorcycle. He was not the rider/driver of the motorcycle. Liability was apportioned against him, yet no evidence was led to demonstrate that he contributed one way or other to the accident. In cases of this nature, where a defendant attributes negligence to someone else, who is not a party to the proceedings, third party proceedings ought to be initiated by the defendant, to have liability apportioned as between the defendant and the third party. That is what the respondent should have done here, initiate third party proceedings against the owner or rider of the motorcycle that the appellant was a pillion passenger on. I note that the rider died in the accident. I do not know whether he was owner of the motorcycle, or whether he was an employee or agent of the owner. If he was the owner, then his estate ought to have been brought on board as third party. If he was a mere employee or agent or servant of the owner, then the owner should have been sued by the respondent. The absence of the motorcycle owner would mean that the respondent ought to bear liability at 100%, as the person with whom it should share liability with was not made a party to the suit, and such party cannot be condemned unheard. See Viviane Anyango Onyango & another vs. Charity Wanjiku[2017] eKLR (Janet Mulwa, J), West Kenya Sugar Company Limited vs. Lillian Auma Saya [2020] eKLR (Njagi, J), Mohamed Muyunga vs. Vinoth Abwolet Eshepet [2020] eKLR (Riechi, J) and Jane Njeri Macharia vs. Godfrey Murimi Muya & another [2020] eKLR (Ngaah, J).
7. The appellant and the police witness testified that the vehicle owned by the respondent had only one headlamp working. The appellant stated that it misled the rider of the motorcycle on which he was passenger, while the police witness stated that he saw the vehicle, and only one headlamp was working. No inspection report was produced, but the evidence by the appellant was adequate on a balance of probability.
8. Overall, I find merit in the appeal. I hereby allow it, in the terms that the holding by the trial court, that liability be apportioned at 50:50, is set aside, and replaced with a finding and holding that the respondent bears liability at 100%. The appellant shall have the costs of the appeal.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 30THDAY OF JUNE, 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMr. Omondi, instructed by Omondi & Company, Advocates for the appellant.Mr. Abande, instructed by Omondi Abande & Company, Advocates for the respondent.