[2017] KEHC 4053 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 406 OF 2012

PAUL MWANGI GICHUKI .............................APPELLANT

-V E R S U S –

NAHASHION KANYI THEURI ................1ST RESPONDENT

JAMES KIHARA THEURI ..................... 2ND RESPONDENT

(Being an appeal from the judgement of the Honourable magistrate Ms C. A. Otieno delivered on the 27th July, 2012 at Kikuyu in Kikuyu MCC No. 164 of 2010 as consolidated with Kikuyu CMCC No. 163 and 164 of 2010 )

JUDGEMENT

1. Nahashon Kanyi Theuri, the 1st respondent herein filed a compensatory suit before the SPM’s Court Kikuyu against Paul Mwangi Gichuki, the appellant herein for the injuries he sustained as a result of a road traffic accident which occurred on 6. 9.2009 along Limuru-Nairobi road involving motor vehicle registration no. KAW 191X Toyota L Touring. The appellant filed a defence to deny the 1st respondent’s claim. James Kihara Theuri the 2nd respondent was later enjoined as a third party. The suit was heard and was eventually decided in favour of the 1st respondent. Being aggrieved by the decision, the appellant preferred this appeal.

2. On appeal, the appellant put forward the following grounds.

1. The learned trial magistrate erred in fact and law when she declined, omitted or neglected to dismiss the plaintiffs case against the defendant after finding that the defendant was not vicariously liable for the acts of the driver of the motor vehicle that caused the accident subject matter of the case before her.

2. The learned trial magistrate erred in the way she weighed the evidence produced before the court on the issue of liability.

3. The learned trial magistrate erred in law by entering judgment on quantum in circumstances that warranted dismissal of the case.

4. The learned trial magistrate erred by finding the defendants negligent despite the fact that there was produced unrefuted evidence that the accident motor vehicle had no pre-accident defect.

5. The trial magistrate erred in fact and law by entering judgment on liability against the defendant despite the fact that the accident motor vehicle was under the care and control of the 3rd party who was responsible for its safety and the condition of the tyres.

6. The learned trial magistrate erred in her apportionment of liability between the parties before her.

7. The learned trial magistrate erred in law by failing to clearly state the party against who she had entered judgement on liability.

8. The learned trial magistrate erred in making awards that were too high in the circumstances of the case as to amount to completely wrong estimate.

3. When the appeal came up for hearing learned counsels recorded a consent order to have the appeal disposed of by written submissions. The 1st respondent also filed a cross-appeal raising the following grounds.

1. THAT the learned magistrate erred in law and fact in failing to award special damages as pleaded and proved.

2. THAT the learned magistrate erred in law and fact in apportioning liability at 80%.20% as between the respondents contrary to the evidence on record.

3. THAT the learned magistrate erred in law and fact in making an award(s) on quantum of damages which was so inordinately low as to represent an entirely erroneous estimate of the compensation to which the respondent(s) were entitled to owing to the nature of the injuries sustained and the residual disabilities thereto.

4. I have considered the rival submissions plus the pleadings and I have further re-evaluated the case that was before the trial court. Though the parties put forward many grounds of appeal, I think those grounds revolve around the question touching on liability and quantum.

5. On liability, the appellant has argued that the trial magistrate erred in the way she weighed evidence or applied the law to the evidence thus wrongly finding the appellant wholly liable. It further argued that the learned trial magistrate erred by failing to clearly state the party against whom she entered judgement against on liability. It is the submission of the appellant that 2nd respondent (3rd Party) drove the suit motor vehicle with the appellant’s permission but not on duty or on a task carried out for the benefit of the appellant, therefore the appellant was not vicariously liable for the acts of the 2nd respondent. The appellant further pointed out that the trial magistrate apportioned liability at 80:20 between the respondents but she did not specify who between the respondents should shoulder which percentage thus creating confusion.

6. The 2nd respondent on the other hand is of the view that the trial magistrate correctly found the appellant liable for the accident. It was pointed out that the 1st respondent’s claim before the trial court against the appellant was based on the appellant being the owner of motor vehicle registration no. KAW 191X. The 2nd respondent further argued that as the owner of the aforesaid motor vehicle, the appellant had a duty to regularly service, maintain and or inspect the motor vehicle including the tyres. This court was urged to find that the respondent established a prima facie inference that the accident was caused by a tyre burst and that the tyre burst was due to the default of the appellant as regards to maintenance and or inspection of the tyres. It is argued that the 1st respondent managed to discharge the burden of proof placed upon him hence the burden shifted to the appellant to show that there was another cause of the accident other than his negligence.

7. Having considered the arguments of both sides on liability, I form the following view on the issue. In her judgment, the learned Senior Resident Magistrate analysed the evidence and stated as follows on vicarious liability:

“The evidence presented by the 3rd party, PW2 and PW3 was that the defendant was a family friend and that they were using motor vehicle registration number KAW 191X which was owned by the defendant after the 3rd party borrowed the same to enable him transport his family. The 3rd party was thereof driving motor vehicle registration number KAW 191X at his request and not at the request of the defendant. There was also no evidence led to indicate that the 3rd party was operating under any instructions from defendant or performing any task delegated to him by the defendant.

From the evidence, it is clear that the 3rd party was not driving motor vehicle registration number KAW 191X as the defendant’s servant and was not acting on his behalf as his agent. The 3rd party was not on a mission on behalf of the defendant but was using motor vehicle registration number KAW 191X with the defendant’s permission but for his own purpose which he stated was to enable him transport his family to the dowry negotiations in Nakuru.

As stated in Securicor Kenya Limited –vs- Kyumba Holdings Ltd (2005) eKLR

Mere permission to drive without any interest or concern of the owner in the driving does not make the owner vicariously liable.

Given the above analysis, the doctrine of vicarious liability does not in my considered view apply in the circumstances of this case.

I have also considered the decision of the Court of Appeal in Kenya Bus Services Limited –vs- Humphrey (2003) KLR where it was held that:

Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible. (Emphasis mine)

In the present case, evidence on record rebuts the presumption that the defendant was responsible for the negligence of the 3rd party. It is clear from the facts as analysed above that there was no master-servant relationship between them and the 3rd party was not acting as an agent of the defendant at the time of the accident.”

8. Nahashon Kanyi Theuri (plaintiff) the 1st respondent herein, testified and summoned two other witnesses. P. C. Zedekiah Mbori (PW1) told the court that the accident was as a result of a front tyre burst. PW1 said that he visited the scene of the accident and noticed that the motor vehicle had a tyre burst. He also stated that the driver told him that he had a tyre burst. Nahashon Kanyi Theuri (PW2) told the trial court that on the date of the accident, James Kihara Theuri (1st respondent) borrowed motor vehicle registration no. KAW 191X from the appellant to use it to take him, his wife Felista Wairimu and Faith Wangui to Nakuru. PW2 stated that on reaching Gitaru, the motor vehicle had a left front tyre burst upon which the motor vehicle lost control and rolled several times. PW2 said he blamed the appellant for failing to service and maintain his motor vehicle. PW2 was categorical that the cause of the accident was a tyre burst and not overspeeding. In cross-examination, PW2 stated that he was asleep but was woken up by a loud noise. Felista Wairimu (PW3) told the trial court that she heard a loud noise before the motor vehicle lost control. PW3 said she was seated on the front seat. PW3 too blamed the appellant for the accident for the reason that he failed to properly maintain the motor vehicle. She exonerated, the 2nd respondent, her husband and the driver of the motor vehicle from the blame. PW3 stated that she was not in a position to establish the cause of the tyre burst. The appellant also summoned P. C. Zedekiah Mbori (DW1) to testify in support of his case. DW1 said he visited the scene of the accident. He produced in evidence the examination report of a motor vehicle inspector which indicated that the vehicle had no pre-accident defects. DW1 also confirmed that the motor vehicle had a tyre burst before the accident. The appellant also summoned one Kariuki Chege (DW2), a private investigator. DW2 stated that the driver of motor vehicle registration no. KAW 191X told him that he drove the aforesaid motor vehicle at 90km/hr and upon reaching Gitaru he felt that the same was pulling towards the left side of the road and the driver suspected the front left wheel had a puncture. It is DW2’s evidence that the motor vehicle pulled off the road on the left side. DW2 stated that the driver(appellant) was of the view that the accident was due to the puncture on the left front wheel. DW2 formed the opinion that the road was not in a good condition and that the driver was driving in a high speed because if it was a normal tyre puncture he could have controlled. The 2nd respondent (3rd Party) told the trial court that he borrowed the accident motor vehicle from the appellant to transport his family for an engagement in Nakuru town. He said upon reaching Gitaru he had a loud bang making the motor vehicle drift off the road but he managed to control it to avoid hitting a tree. He said he did not know the speed the motor vehicle was at. He gave an estimate of between 70 and 90km/hr. He also claimed that the left front tyre burst. He denied being careless. He stated that the cause of the accident was a tyre burst and blamed the owner for failing to maintain the motor vehicle. I have already outlined the manner the trial magistrate dealt with the evidence. The trial magistrate came to the conclusion that the appellant did not offer any evidence to show that the vehicle had been regularly maintained. She also concluded that the appellant had failed to tender evidence to show how the tyres had been cared for or maintained prior to the accident therefore the evidence of the 2nd respondent was never rebutted. With respect, I am satisfied that the learned Senior Resident Magistrate came to the correct conclusion on liability of the appellant. The remaining question connected to liability is the question as to whether or not the appellant is vicariously liable for the actions or omissions of the 2nd respondent. The trial magistrate came to the conclusion that the appellant could be vicariously liable for the action or omissions of the 2nd respondent. It was pointed out that the appellant could not be liable for the actions or omissions of the 2nd respondent since he was not using the aforesaid motor vehicle as the appellant’s agent and was not acting on his behalf as his agent. With respect, I agree with that finding. It has been argued that the trial magistrate erred when she apportioned liability to the appellant yet she had found him not vicariously liable. It is argued that the decision to apportion liability caused a lot of confusion. With respect I am not persuaded that the trial magistrate fell into error. It is clear to me that the appellant was found liable on the basis that he failed to tender evidence showing that he regularly maintained the motor and that he failed to rebut the evidence that the tyres were in good condition. I am convinced that the trial magistrate’s decision on liability and the subsequent apportionment cannot be faulted. The record shows that the 2nd respondent drove motor vehicle registration no. KAW 191X at a speed between 70 and 90km/hr. It is said the scene of the accident was a corner. Such a speed in the circumstances was excessive. Even if there was a tyre burst as alleged, the driver could still have controlled the motor vehicle had he been driving at a reasonable speed. I am satisfied the trial magistrate correctly found the 2nd respondent as having contributed to the accident.

9. In view of my findings on liability, I find ground 2 of the cross- appeal to be without merit.

10. Having determined the issue on liability, I now turn my attention to quantum. The appellant beseeched this court to set aside the award on quantum. The appellant argued that the trial magistrate erred in the award on quantum particularly in C.M.C.C. no 163 of 2010 whereby she awarded the 1st respondent ksh.452000/= for a fracture of the left femur and left ankle. The appellant submitted that an award of kshs.200,000/= was reasonable. The 1st respondent was of the view that the award was neither high nor excessive. I have considered the authorities cited and relied by the parties. I have noted that the appellant has relied on cases decided more than ten (10) years. I am convinced that the trial magistrate considered the inflationary trends and gave the appropriate award. There is therefore no reason to justify the interference of the award on quantum. In the cross-appeal, the 1st respondent avers that the award is inordinately low. I find the award on damages to be commensurate with the injuries. Consequently the appeal on quantum in the cross-appeal lacks merit.

11. In the end, I find no merit in both the appeal and the cross- appeal. They are both dismissed. In the circumstances of this case, I am satisfied that a fair order on costs is to order, which I hereby do ,that each party meets its own costs.

Dated, Signed and Delivered in open court this 14th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

................................................. for the Respondent