[2018] KEHC 1342 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 67 OF 2014

RONGAI WORKSHOP & TRANSPORT LTD.................APPELLANT

V E R S U S

LEGO PRODUCTS LIMITED........................................RESPONDENT

(Being an appeal from the judgement of Hon. G. H. Oduor SPM Limuru delivered on 13/2/2014 at the Limuru Chief Magistrates Court in SPMCC 74 of 2012 )

JUDGEMENT

1) Lego Products Ltd, the respondent herein and the owner of motor vehicle registration no. KBE 751P filed a material damage claim in the sum of ksh.799629/= against Rongai Workshop Transport Ltd, the appellant herein and the owner of motor vehicle registration no. KLY 830, Isuzu Leyland prime mover.

2) It is said that the respondent’s motor vehicle was hit by the appellant’s truck along Mai-Mahiu Nairobi and as a result, the respondent’s motor vehicle was extensively damaged and was declared a write off. The suit was defended by the appellant.

3) Hon. G. H. Oduor, learned Senior Principal Magistrate heard the case and determined liability in the ratio of 80:20 in favour of the respondent as against the appellant. Judgement in the sum of ksh.799,629 was entered in favour of the respondent less 20% contribution.

4) The appellant was aggrieved by the trial court’s decision thus it preferred this appeal and put forward the following grounds:

i. The learned magistrate erred in law in finding the appellant 80% liable and or wrongly apportioning liability to the parties herein.

ii. The learned magistrate erred in law and fact in finding the appellant liable.

iii. The learned magistrate erred in law and fact in disregarding the appellant’s evidence and for failure to find the respondent 100% liable for the accident of 11/12/2009.

iv. The learned magistrate erred in law and fact in finding that the respondent was entitled to kshs.639,703 as special damages, this being excessive and having not been proved in the circumstances.

v. The learned magistrate erred in law and fact for not dismissing the respondent suit for failure to prove its claim.

vi. The learned magistrate erred in law and fact in awarding extremely excessive and aggravated quantum of damages to the respondent without any basis.

vii. The learned magistrate erred in law and fact by not considering written submissions made and case law filed by the appellant.

5) The respondent too was not happy about the decision hence it preferred to file a cross-appeal in which it put forward the following grounds:

i. THAT the learned trial magistrate erred in law and in fact in finding the respondent’s driver guilty of contributory negligence despite overwhelming evidence that the appellant’s driver was wholly liable.

ii. THAT the learned trial magistrate erred in law and in fact in failing to find that the respondent’s driver had no reasonable opportunity of avoiding the accident in the circumstances and thus reached a wrong finding on liability.

iii. THAT the learned trial magistrate erred in law and in fact in failing to consider that police investigations laid blame on the appellant’s driver.

iv. THAT the learned trial magistrate erred in law and in fact in failing to find that the appellant’s driver was 100% liable.

v. THAT the learned trial magistrate erred in law and in fact in failing to consider and/or appreciate the respondent’s submissions on the issue of liability.

6) When this appeal came up for hearing, learned counsels appearing in the matter recorded a consent order to have the appeal disposed of by written submissions. Though the appellant put forward a total of 8 grounds of appeal, those grounds revolve around the twin questions in respect of liability and quantum.

7) On liability, the appellant is of the submission that the learned Senior Principal Magistrate erred in apportioning liability and in finding the appellant liable. It is the appellant’s submission that the respondent should have been found wholly liable. It was pointed out that the respondent’s driver did not have sufficient driving experience and that he drove the respondent’s motor vehicle at high speed between 60 and 70 km/hr.

8) It is the submission of the respondent that the evidence presented show that the appellant’s motor vehicle was on the respondent’s rightful lane and therefore the appellant’s driver should be held wholly liable for the accident.

9) I have re-evaluated the evidence presented before the trial court. I have also considered the rival submissions over liability. It is the evidence of the respondent’s driver (PW1) that he drove motor vehicle registration no. KBE 751P at a speed between 60 and 70 km/hr. The evidence show that the section of the road is full of corners. The evidence of the appellant’s driver (DW1) show that he drove motor vehicle registration no. KLY 830 at 15km/hr since it was loaded.

10) DW1 also stated that the respondent’s driver drove his motor vehicle at high speed and along the rightful lane of D.W.1s truck. Samuel Ndenga (DW2) a private accident investigator hired by the appellant stated that the respondent’s driver was to blame for coming on the lane of the truck. He also stated that the pick up was moving in high speed and took a corner on the wrong side of the road.

11) The trial magistrate did not believe the evidence of DW2 to be neutral and objective. She also found the evidence of the police abstract to be unreliable. Having re-evaluated the evidence, it is clear that the question of liability can only be determined on the basis of the evidence of PW1 as against that of DW1.

12) It is the evidence of DW1 that PW1 was driving at high speed while on his lane.

13) P.W.1 on the other hand is of the view that DW1 drove on the centre of the road as he approached a bend. P.W.1 stated that he was driving between 60 and70 km/hr in a very sharp corner commonly known as an ‘s’ corner.

14) PW1 said he tried to swerve to the left to avoid the truck but it was too late. He said the occurrence of the accident was abrupt.

15) After a careful analysis of the evidence I am satisfied that the two drivers are equally to blame. I therefore find the decision to apportion liability at 80:20 erroneous. Consequently the order is set aside and is substituted with an order apportioning liability in the ratio of 50:50.

16) In its cross appeal, the respondent submitted that the trial court reached the wrong finding when it found it 20% liable for the accident. It submitted that the appellant should have been held wholly responsible. With respect, this submission suffers the same fate as the appeal so that both the appellant and the respondent are hereby found equally liable.

17) On quantum, the appellant has submitted that the award of ksh.799,629/= was excessive and not proved. The respondent is of the submission that the award was specifically pleaded and proved.

18) I have carefully re-evaluated the evidence tendered on quantum and it is evident that the material claim was pleaded and particularised in paragraph 5 of the plaint. Benedict Nyaga Njeru (PW4) tendered documentary evidence in support of the aforesaid claim. I find the claim proved and the same is not excessive as alluded by the appellant.

19) In the end this appeal partially succeeds thus giving rise to following orders:

i. The order apportioning liability in the ratio of 80:20 is set aside and is substituted with an order apportioning liability in the ratio of 50:50.

ii. The appeal as against quantum is dismissed.

iii. The respondent’s cross-appeal is dismissed.

iv. In the circumstances of this appeal, a fair order on costs is to order which I hereby do, that each party shall meet its own costs of appeal.

v. The award of ksh.799,629/= is subjected 50:50 contribution, therefore the respondent is entitled to kshs.399,814/50 being half the award.

vi. The respondent to have costs of the suit and interest as ordered by the trial court based on the figures stated in (v) above from the date of filing suit until the date of full judgement.

Dated, Signed and Delivered in open court this 14th day of December, 2018.

J. K. SERGON

JUDGE

In the presence of:

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

..................................................... for the Respondents