[2024] KEHC 3217 (KLR)

Otieno v Transpares(K) Limited & another (Civil Appeal 150 of 2022) [2024] KEHC 3217 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3217 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 150 of 2022

DAS Majanja, J

April 5, 2024

Between

Dominic Omondi Otieno

Appellant

and

Transpares(K) Limited

1st Respondent

Kenneth Ochieng

2nd Respondent

(Being an appeal from the Judgment and Decree of Hon. J.A. Kasam, SRM dated 17th August 2022 at the Magistrates Court at Mombasa, in Civil Case No. 1810 of 2019)

Judgment

Introduction and Background 1. On 17. 08. 2022, the Subordinate Court delivered judgment where it was found that the Respondents were not liable for the accident that occurred on 27. 03. 2019 at Mlima Kiu within Salama area in which the Appellant, as a passenger in the 1st Respondent’s motor vehicle KAX *M/ZC 17, was injured by being thrown out of the said motor vehicle after it lost control and landed in a ditch. The Appellant is dissatisfied with this judgment and appeals to this court through its memorandum of appeal dated 19. 09. 2022.

2. In his case before the Subordinate Court, the Appellant stated that the accident was occasioned by the negligence on the part of the 2nd Respondent who the Appellant claimed was the authorized driver of the 1st Respondent. He claimed to have suffered injuries including a displaced fracture of the right tibia leg bone, comminuted fracture of the left patella knee cap bone, degloving tissue loss injury to the left knee, blunt object injury to the head and knees and bruises on the head(scalp) and both knees. As such, he sought inter alia general and special damages. In response to the suit, the 1st Respondent generally denied the entire claim and sought that the same be dismissed with costs.

3. When the matter was set down for hearing, the Appellant testified on his own behalf (PW 1) and called as his witnesses, Dr. Ajoni Adede, a medical practitioner (PW 2) and CI Julius Kiplimo, a police officer in charge of traffic division, Salama Police Station in Makueni County (PW 3). The Respondents did not call any witnesses but they produced as their evidence and without objection by the Appellant, a medical report dated 20. 02. 2022. At the close of the hearing, the parties were directed to file written submissions and thereafter the Subordinate Court rendered the judgment.

4. The Subordinate Court found that the subject motor vehicle was not operating as a Public Service Vehicle (PSV) and as such, no receipt was or could be issued to the Appellant and that he was not an employee of the 1st Respondent hence he was not authorized to be on board the subject vehicle. It held that the 1st Respondent’s driver was not authorized to carry passengers and that this action was not in the ordinary course of his employment. Thus, the 1st Respondent could not be held liable for the unauthorized action of the driver and consequently, the Subordinate Court dismissed the suit.

Analysis and Determination 5. In determining this appeal, I am aware that as a first appeal, this court has a duty to re-evaluate and re-assess the evidence before the court of first instance and at the same time, keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123).

6. As stated, the Appellant is aggrieved with the Subordinate Court’s conclusion that the Respondents were not liable for the accident and the injuries sustained by the Appellant. The question for resolution is whether the 1st Respondent, as owner of the subject motor vehicle, could not be held vicariously liable for the unauthorized actions of its employee, the 2nd Respondent, which actions were not connected with the ordinary course or business of his employment.

7. Superior courts including the Court of Appeal have held that under the doctrine of vicarious liability, a master is not liable for negligence committed outside the scope of the servant’s employment. The test is an objective one and is dependent on a number of factors including the nature, tasks and scope of employment and how connected the negligent acts are to the course of employment (see Mwona Ndoo v Kakuzi Ltd (1982-1988) 1 KAR 523).

8. In as much as the Appellant stated that he was a lawful passenger in the 1st Respondent’s motor vehicle, he did not provide any evidence of his lawfulness in the said vehicle as a passenger. Actually, in his own testimony he admitted that the vehicle was not a passenger service vehicle. When faced with a similar case, the Court of Appeal in Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & another NYR CA Civil Appeal No. 186 of 2009 [2014]eKLR held as follows:We also find that the 1st respondent’s action of giving a lift to the appellant was not for the purpose or benefit of the 2nd respondent but for his own benefit. In doing so we concur with the following finds of the High Court:-“In the present appeal, the appellant testified that she paid the 1st respondent to enable her travel in the said motor vehicle. The appellant was aware or ought to have known that the motor vehicle in question was not a public service vehicle (PSV). The 1st respondent did not have authority of the 2nd respondent to carry any passengers. In actual fact, the 1st respondent had been specifically forbidden to carry any passengers. The fare that the appellant paid to the 1st respondent was for the 1st respondent’s own benefit and not that of the 2nd respondent.” [Emphasis mine]

9. I do not fault the trial magistrate for concluding that the subject vehicle was not a PSV but a commercial vehicle with a trailer in tow and was thus not authorized to carry fare paying passengers. The 2nd Respondent, by giving a lift to the Appellant, was therefore on a frolic of his own for personal gain not envisaged by his employer, the 1st Respondent. The motor vehicle was not designed for carriage of passengers and thus the 2nd Respondent was acting outside the course of his employment. The 1st Respondent could not be held vicariously liable in the circumstances. I do not find any reason to disturb the trial magistrate’s conclusion which was sound and supported by law.

Disposition 10. The Appellant’s appeal lacks merit. It is dismissed with costs to the Respondent assessed at Kshs. 30,000. 00.

SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED AND DELIVERED AT MOMBASA THIS 5TH DAY OF APRIL 2024. OLGA SEWEJUDGE