[2017] KEHC 295 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL APPLICATION NO. 199 OF 2013

THOMAS KAPOMBE........................................................1STAPPELLANT

LUCY PATRICK T/A KALITA TRANSPORTERS......2ND APPELLANT

-VERSUS-

MATUNDA FRUITS BUS SERVICES LIMITED.............RESPONDENT

(Being an Application for Reinstatement of Civil Appeal No. 199 of 2013 which was dismissed for want of prosecution on 6th 2015 by Hon. Justice Kiarie Waweru J)

JUDGEMENT

1. On the 4th November 2007 two buses collided while headed to Nairobi at Ngata farm along the Nakuru-Eldoret Road. Motor vehicle Registration Number KAW 790W Isuzu Bus was alleged to be owned by Matunda Fruits Bus Services Limited the Respondent. Motor vehicle Registration No. UAH 606V also an Isuzu Bus was owned by the 2nd Appellant and driven by the 1st Respondent.

2. By a plaint dated 31st March 2010 and filed on even date the Respondent sued the Appellants, alleging negligence by their driver for compensation arising from material damage to its vehicle No. KAW 790W in the sum of Kshs.1,862,900/=. The particulars were stated in the plaint.

3. In their statement of defence dated 27th April 2010 and filed on the 29th April 2010, the occurrence of the accident ownership of the respective motor vehicles, the damages and generally all the claims were denials. They however and in the alternative pleaded contributory negligence by the Respondent's Bus.

4. Upon full hearing and upon evidence adduced, a judgment was delivered on the 22nd October 2013. The court found the 2nd Appellant vicariously liable for negligence of its driver, the 1st Appellant at 100%. It further assessed special damages towards repair costs of the Respondents Bus at Kshs.582,900/= and Loss of earnings at Kshs.1,280,000/=.

5. The appellants being dissatisfied filed this appeal and preferred six grounds of appeal, which upon consideration, may be summarised into two grounds, liability and quantum of special damages.

Both parties filed written submissions on the appeal.

6. The appellants evidence before the trial court was urged by one witness only. The Respondent called five witnesses.

As the first appellate court, I shall reconsider and re-evaluate the said evidence to satisfy myself whether the findings and conclusions arrived at by the trial court were based upon the evidence tendered or whether the same is based on proper analysis of the said evidence.

See Selle -vs- Associated Motor Boat Company Ltd (1968) EA 123 and Mbogo -vs- Shah & Another (1968) EA 93.

7. THE RESPONDENT’S CASE BEFORE THE TRIAL COURT

PW1 was Daniel Nganga Mwangi. He was a director of the Respondent Matunda Fruits Bus Service Limited. He produced authority by the company for him to represent it in court and the Articles of Association – PExt 10 & 11. He also produced a log book to confirm registration of the bus in its name – PExt 1, thus proved its ownership.

8. His evidence was that after the accident, the vehicle was taken for repairs and the cost came to Kshs.502,500/= which included VAT and that it took 32 days to complete the repairs. It was his further evidence that the company used to make an average of Kshs.40,000/= daily hence lost a sum of Kshs.1,280,000/=.

He stated that the assessment of damage to the vehicle was done by Paramount Assessors (identified) - the Assessment Report.

9. PW2 was the Respondent's bus driver on the material date. His evidence was that he kept his left lane and that the appellants bus was trying to overtake it when it swerved back to its lane, view of an oncoming lorry, then it tried to come back to its lane in a zig-zag manner and hit his bus and overturned. It was his further evidence that the appellants driver was charged for an offence of careless driving, convicted and fined Kshs.10,000/=. He blamed him for the accident.

In cross examination, he stated that he tried to brake to avoid the accident. Referred to an earlier traffic case where the court found him 50% to blame, he stated that he could not remember such case.

10. PW3 was the bus repairer, Risha Body and General Metal Works

The repairer, Richard Musonge confirmed having repaired the Bus Registration No. KAW 790W at a cost of Kshs.502,500/=. He produced the jobcard and cash sale receipts for the repair parts as PExt 2A and 2B. He did not see the assessors report.

11. PW4 was Clement Wasike,a motor vehicle Assessor t/a Paramount Assessors. He is a holder of a Diploma in Mechanical Engineering. Upon instructions from the Respondent company, he assessed the damages to the Respondent's bus. He produced the Assessment report as PExt 3, Photos of the Bus PExt 4 and receipts as PExt 5.

He relied on his own observations of the damages to the bus.

12. PW5was an auditor and Accountant, and a holder of a University degree from Strathmore, and CPA Part 2. Using daily manifest of the bus, for 10 months from January to November 2007, he got a daily income Kshs.40,000/=. He produced the summary report as PExt 7 and the daily manifest as PExt 6.

In cross examination, it was his evidence that as an accountant, he captured the income, expenses, banked cash and had the bus expenses file and the daily manifest as PExt 6.

He however did not produce cash deposit slips and daily cash summaries. He also confirmed that the Bus owners pay taxes and also having been given the banking slips. He did not produce the Annual Tax Returns.

13. A police officer PC Simeon Meto testified as PW6. He was the investigating officer. He concluded that the driver of the Appellants vehicle UAH 606V was to blame for the accident, and that he was charged in Traffic Case No. 3977/2007 and fined Kshs.1,000/= on 20th March 2008. He denied knowledge of CMCC No. 819/2008 where liability was apportioned at 50:50 basis to both bus drivers. He did not testify in that case.

14. The appellants case before the trial court was urged by one witness, Thomas Kapembe Marya the driver. He testified as DW1.

He testified that his vehicle was at a speed of 90 KPH while driving along the Eldoret-Nakuru road speeding towards Nairobi, and that while trying to overtake the Respondent's bus it lost control and veered off the road on the right, lost control and overturned as it tried to come back to the road. He confirmed that his bus knocked the Respondents bus on the driver's door when it tried to come back to the road.

He admitted having been charged in a traffic court and pleaded guilty though not guilty so as not to cause inconvenience to his employer and travelling from Uganda where he used to work. He thus blamed the respondents bus driver for the accident.

The traffic case judgment was produced as exhibit by consent of the parties. I have considered it.

15. In his judgment delivered on the 4th November 2013, the trial magistrate made findings that the Appellants bus driver was to blame for the accident for driving carelessly thereby knocking the Respondent’s bus in a bid to avoid an head-on collision with an oncoming lorry while it tried to carelessly overtake. He therefore held the appellant vicariously liable in negligence and for the damage to the Respondents bus at 100%.

He proceeded to assess damages and repair costs to the Respondent’s bus at Kshs.582,900/= and loss of earnings at Kshs.1,280,000/= and Assessors fees of Kshs.6,000/=.

16. I have considered and re-evaluated the above evidence, against the grounds of appeal as stated by the appellant and the parties submissions.

I find that the trial Magistrate satisfactorily analysed the evidence tendered before him on the matter of liability.

A conviction in a traffic case is not a full proof that the accused is wholly to blame for an accident. However, when a driver pleads guilty to a traffic offence, it is more likely and probable that he is the one who solely caused the accident. This is however not the case in a civil suit.

In the case Civil Appeal No. 85 of 2012 Kathini Titus -vs- Almicdad Panel Services Ltd & Another (2014) e KLRthe driver pleaded guilty to a traffic offence but in the ensuing civil suit be denied having been to blame for the accident. This is however not the case in a civil suit.

17. The Learned Judge citing Section 47A of the Evidence Act and the case Everlyne Shivachi -vs- Thara Trading Ltd (2013) e KLRwhere it was held:

“A final judgment of a competent court in a criminal offence shall, after expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein whichever is the latest shall be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.”

18. I do not find any fault with the trial Magistrates finding of blame upon the appellants driver, the plea of guilty having not been appealed from.

See Section 47A Cap 80.

However the conviction does not bar allegations of contributory negligence to the vehicle involved in the accident in a civil suit. It is proper for a claim of contributory negligence to be raised despite the plea of guilt.

See also Robinson -vs- Oluoch (1971) EA.

I have looked at the plaint. The Respondents (then plaintiff) sued the Appellant together with the driver for negligence and sequential damages. In their defence they claimed contributory negligence by the driver of the respondents vehicle.

19. Evidence was adduced by both drivers of the two vehicles. The trial Magistrate analaysed the said evidence. I have also analysed the same. The respondents driver admitted having knocked the respondents bus which had veered off the road to give the appellants bus room to overtake but as it came back to the road, the appellants bus, while trying to come back to its lane to avoid a head on collision with an oncoming lorry knocked the respondents bus. These events were clearly triggered by the appellant's bus driver. He pleaded guilty. He can therefore not blame the respondent's driver for having contributed to the accident.

20. The events before and after the accident are evidently clear that the respondents driver did not play a role. The evidence adduced is to the effect that the Respondents driver tried to avoid the accident.

I therefore find no merit in the appellants appeal, on liability all evidence adduced having been considered and evaluated. I uphold the finding of 100% culpability upon the 1st Appellant being the driver and the 2nd appellant as the employer and owner of the said bus. The 2nd appellant is therefore vicariously liable for the negligence of its driver.

21. QUANTUMOF DAMAGES

The appellant faults the trial magistrate in his findings that the respondent had proved its claim on special damages on a balance of probability.

A claim for repair costs of an accident vehicle is a special damage claim. It ought to be pleaded and specifically proved.

The respondent in the plaint pleaded the particulars of damages to the vehicle, and further the repair costs as follows:

PARTICULARS OF SPECIAL DAMAGES

(a) Repair costs - Kshs. 582,900/=

(b) Loss of earnings of

Kshs.40,000/=Per day for 32 days - Kshs.1,280,000/=

(c) Assessment fees - Kshs. 6,000/=

(d) Police Abstract - Kshs. 100/=

Total - Kshs. 1,862,900/=

22. The question that begs an answer is whether the special damages pleaded above were adequately proved before the trial court.

A motor vehicle assessment Report was produced by PW4 an assessor t/a Paramount Assessors. The report tabulates the damages, the necessary spare parts and their cost, and his assessors fees of Kshs.6,000/= to the tune of Kshs.582,900/= (Repair costs including labour and materials).

I have looked at the proceedings. The appellants advocates had nothing to cross examine the assessor on save that he stated that no inspection report was received from the traffic police. The report was therefore accepted and admitted as exhibit without any question. The motor vehicle repairer PW3 however charged Kshs.502,500/= for the repairs, including spare parts and labour. This is normal as prices of spare parts differ at different times and suppliers.

23. In my considered view, an assessment report of a vehicles damage and repair costs by a competent assessor is prima facie evidence that the damages and repair costs stated are genuine, and ought to be allowed, unless there are glaring contradictions between the Assessment report and the repair costs.

In the present case, the repairer of the vehicle PW4, testified that he spent Kshs.502,500/= for the repairs, including cost of spare parts and his labour costs, which sum is less than is shown in the assessment report by about Kshs.80,400/=.

I am minded that the appellant did not raise any challenge at all to the Assessment Report and cost of spare parts.

The actual spare parts and receipts in respect of each item need not be produced in court, suffice to state that the repairer hereof confirmed having spent the sum I have stated above, and infact produced receipts to prove the spare parts purchases. On this item, I shall set aside the sum of Kshs.582,900/= and substituted it with a sum of Kshs.502,500/= being the actual repair costs.

24. LOSS OF INCOME/BUSINESS

This too being a special damage is subject to strict proof. The earnings from a bus/matatu business has to be proved taking into account that these business vehicles are not always on the road. Many circumstances may play in their being off the road like when undergoing service, repairs, weekends, and when there is no work. The owner is nevertheless entitled to compensation for the non-user if it is caused by negligence of another party.

See Summer Ltd -vs- Moses Kithinji Nkanata (2006) e KLR and P.N. Mashru Ltd -vs- Ag (2005) e KLR.

25. The period of repair of 32 days stated by the respondents is inordinately long in my opinion. Being a business vehicle, a shorter period ought to have been taken.

Ordinarily, and in reality, repair to a vehicle when the owner is serious about it should take not more than 21 days. That is what I shall allow in this appeal.

26. Actual income is of the business vehicle subject to many eventualities.

The sum stated for by the accountant (PW5) was an average derived from daily manifests (PExt 6), daily expenses and income cash deposit slips for a period of 10 months.

The trial magistrate in upholding the accountants a loss of income considered the time the vehicle was at the garage and assessors estimate that it would take six weeks. The job card (PExt 2A) confirmed the period. This was not challenged by the appellant.

However, a party is expected to mitigate his losses. Nothing was shown as having been done by the respondent to mitigate his losses. Again, out of the 32 days, even if it was doing business, it would have lost a few days towards service and low business times. I shall reduce the dates to a reasonable period of 21 days.

27. On the lost income, I have been urged that no proof was tendered. No banking slips of the vehicles income was tendered save for the daily manifests of incomes and expenses. Tax returns too were not produced

This is not to say that no income was proved. Only that the above documents, would have shed more light on the vehicles incomes. In the case Summer Ltd (Supra) a similar situation arose. Loss of income was not strictly proved above. In the P.N. Mashru case, the court held that

“It is not always that a vehicle would be on the road 24 hours --- eventualities have to be taken into place --- the plaintiff has not full established loss of user but in law is entitled to it bylaw – such a situation requires that nominal damages be awarded.”

28. I cannot ignore that the respondent’s vehicle was a business bus and was making some income from its daily travels from Nairobi to Kitale, and therefore lost the income for the period. The income of Kshs.40,000/= per day in my view was not satisfactorily proved.

To that extent, and using my discretion, I think a period of 21 days against a loss of Kshs.25,000/= per month shall be reasonable. This is further informed by the fact that the appellant did not come up with any reasonable sum, taking into account its bus too was doing business along the same route.

29. I proceed to set aside the sum of Kshs.40,000/= loss of business/income daily and substitute it with a sum of Kshs.25,000/= per day for 21 days thus a sum of Kshs.630,000/=.

The sum of Kshs.6,000/= being the Assessors fees is upheld. The upshot is therefore that the appeal succeeds partly in the following manner:

The trial court's judgment dated 2nd October 2013 is hereby set aside on one part, and upheld on the other as hereunder:

(1) Liability against the appellant at 100% is upheld

(2) Special damages are set aside and substituted as:

(a) Costs of motor vehicle

repairs - Kshs.502,500/=

(b) loss of earnings - Kshs.525,000/=

(c) Assessment fees - Kshs 6,000/=

Total -Kshs.1,033,500/=

(3) The sum of Kshs.1,033,500/= shall accrue interest at court's rates from the date of the trial court's judgment.

(4) Each party shall bear own costs of the appeal.

Dated and Signed this 23rd Day of October 2017.

J.N. MULWA

JUDGE

Delivered this 15th Day of November 2017.

R. LAGAT KORIR

JUDGE