[2022] KEHC 14043 (KLR)

West Media Limited & another v Muriithi (Civil Appeal E009 of 2021) [2022] KEHC 14043 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14043 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E009 of 2021

SN Riechi, J

October 7, 2022

Between

West Media Limited

1st Appellant

Nippon Royal (K) Limited

2nd Appellant

and

Augustine Wangui Muriithi

Respondent

(An appeal from the Judgement and Decree of Hon. A Odawo R.M in Bungoma CMCC No. 43/2020 delivered on 18/1/2021)

Judgment

1. The respondent sued the appellant in the subordinate court for damages due to a rod traffic accident which occurred along the Bungoma_Kanduyi road. The respondent attributed the occurrence of the accident to the appellant’s driver’s negligence. The appellants filed their statement of defence denying the negligence and attributed the occurrence of the accident to the respondent’s negligence.

2. PW1 Zakayo Wambuto Wambulwa, the respondent’s driver stated that he was driving motor vehicle registration number KBC 181Z when he saw another vehicle approach him from the feeder road and trying to join the highway before hitting his vehicle on the left side.

3. PW 2, PC Lydia Meli produced the police file which recommended that the appellant’s driver was to blame for joining the main road without giving way to the respondent’s motor vehicle. She produced the Police Abstract.

4. PW 3, George Mathew, the motor vehicle assessor assessed the motor vehicle, listed the damaged part and estimated that the vehicle would be repaired in 21 days subject to availability of parts. He prepared and produced a report to that effect.

5. PW 4, Augustine Muriithi, the owner of the motor vehicle registration number KBC 181Z narrated how he was called by PW 1 informing him of the accident and steps he took to repair the vehicle.

6. PW 4, Geoffrey Njoroge, a secretary at the Bungoma Line SACCO where the motor vehicle was registered as public service vehicle produced the schedule of income received on behalf of PW 4.

7. For the appellants, John Omuhale Kabaka testified as DW 1. He stated that as he was approaching the main road, he stopped by to check oncoming vehicles when he spotted the respondent’s vehicle approach at high speed to pick some passengers standing by the road-side. That the said vehicle hit his vehicle.

8. After reviewing the evidence, the trial court apportioned liability at 100% in favour of the respondent against the appellant and awarded special damages in the sum of Kshs 519,195/-. Aggrieved by the finding, the appellants have moved this court on appeal raising the following grounds;1. That the learned trial magistrate erred in fact and law by misdirecting herself on the applicable laws on liability and quantum, misapprehending the facts and evidence tendered, took into account considerations of which she should not have taken into account, failed to take into account considerations of which she should have taken into account and the decision she reached is inexorably wrong and for setting aside as it fails to meet the judicial threshold of a reasoned judgement.2. The honourable magistrate erred in law and in fact for failing to find and hold that in the absence of any sketch map produced by the respondent, the court was denied crucial evidence that could clearly map out how the accident occurred and find the liable party thereby condemning the appellants without proof to the required standards.3. The honourable magistrate erred in law and in fact for failing to find and hold that in the absence of crucial evidence for purposes of determining the blame or liability, the appellants could not be 100% liable in the circumstances of the case thereby meting injustice to the appellants.4. The learned magistrate erred in law and in fact for failing to draw adverse inference against the respondent for withholding the sketch map as crucial evidence in this case which would have assisted the court to reach a just conclusion thereby entering judgement against the preponderance of evidence.5. The honourable magistrate erred in law and fact in relying on controversial and contradicting evidence to find that the respondent had proved his case against the appellants without giving due weight to the appellants’ evidence.6. The honourable magistrate erred in law and fact from failing to put the appellants’ evidence in the right context of the alleged accident against the damages on the respondent’s motor vehicle in the front side thereby arriving at an erroneous conclusion that the appellant’s negligence caused the accident.7. The trial court failed to appreciate that the version of the respondent’s evidence was inconsistent with the damages caused to the respondent’s motor vehicle arising out of the accident thereby arriving at an erroneous conclusion that the appellants were wholly liable for the accident.8. The learned magistrate erred in law and in fact for failing to appreciate that the respondent’s witness evidence was self-conflicting, contradictory and any liability against the appellants could not be founded on such shaky and improbable evidence.9. The trial court erred in law and in fact by failing to find and hold that if the appellants car rammed into the respondent’s vehicle on the left side, the damages caused to the said vehicle on the front up to the driver’s door could not be possible in the circumstance of the accident.10. The learned magistrate erred in law and in fact by relying on improbable evidence of the schedule of contribution for membership of the SACCO yet it did not have any nexus to the SACCO or the respondent thereby giving it unnecessary probative value when its source and nature was highly questioned thereby awarding undue damages to the respondent.11. The leaned magistrate erred by relying on an alleged schedule of contributions without any receipts and membership card in determining lost income which was discredited by the appellant fell into error of law and fact thereby resulting in miscarriage of justice.12. The learned magistrate erred in law and in fact for failing to find that the respondent had proved its case on a balance of probability without giving due weight to the probative value of the appellant’s evidence which discredited the already inconsistent evidence of the respondent thereby erroneously finding the appellants 100% liable.13. The learned magistrate erred in law and in fact for finding the appellants liable without fault on their part thereby awarding damages to the respondent contrary to the evidence on record.14. The honourable magistrate erred in law and fact for failing to analyze and determine whether each element of negligence was proved by the respondent given the discredited and inconsistent evidence on record thereby arriving at an erroneous conclusion that the respondent proved a case of negligence against the appellants.15. The trial court erred in law and in fact by abdicating its judicial function of evaluating and analyzing the evidence on record before arriving at a just determination thereby giving the respondent undue advantage while meting injustice to the appellants for failing to consider their defence and the evidence on record in the circumstances.16. The magistrate erred in law and fact by awarding damages as prayed which damages were contradictory and quantum varied from the pleadings, evidence and testimony of the respondent, an indication that the trial court failed to address its mind to them.17. The honourbale magistrate erred in law and fact by relying on quotations in awarding damages instead of the actual expenses incurred given that the respondent pleaded that he had repaired the vehicle that was damaged.18. The learned trial magistrate erred in failing to make a finding that the invoice in respect of Techpride Limited were invalid thus inadmissible in law as they were unsigned, unstamped and not original and of no evidential value and she relied on the said document to sustain the respondent’s claim in damages.19. The learned trial magistrate erred by admitting and relying on an unsigned and unstamped document which was invalid and could not acquire validity on account that it was not called into question during cross-examination. Further that the said document whose author is unknown could still remain unsigned and undated even if the purported makers were to testify in court thus still legally untenable for admission as a credible piece of evidence.20. The learned magistrate erred in not heeding the hackneyed proposition of law that special damages must not only be pleaded but must also be specifically proved and she lurched on the pleadings and awarded the same lock, stock and barrel without prove of the same having been made notwithstanding the appellants puncturing of the evidence thrown at the court.21. The learned magistrate erred in not exercising here independent mind to determine the veracity of special damages pleaded and as contested by the appellants and the legal principles material thereto including mitigation of damages and contribution.22. The learned magistrate erred in failing to consider the defence and appellants’ evidence which was not shaken in cross-examination, candid and truthful and not discounted in judgement.23. The learned magistrate erred in failing to address the issues raised by the appellant in the final submissions and her decision is a miscarriage of justice.

9. The appeal was disposed of by way of written submissions. Both parties complied and on record. The appellant identified the following issues; -1. Whether the learned magistrate erred in law and in fact by failing to appreciate the standard of proof in civil cases thus finding the appellant liable.2. Whether the learned magistrate abdicated her judicial function and duty of evaluating and analyzing the evidence on record before arriving at a just conclusion.3. Whether the trial court erred in awarding the plaintiff special damages of Kshs 519, 195/- being special damages and loss of user.

10. On the first issue, learned counsel Mr Wekesa submits that for case of negligence to be established against the appellant, the respondent had to show a duty of care, breach of that duty, causation and damage. See Kenya Wildlife Service v Rift Valley Agricultural Contratcors Limited (2018) eKLR. In this regard, counsel submits that the trial magistrate failed to address these elements thus arriving at an erroneous conclusion. That in the case of Trendsetters Tyres Ltd v John Wekesa Wepukila (2010) eKLR, it was stated that in an action based on negligence, the burden of proof is on the plaintiff to establish the elements of tort. Counsel cites the authorities in Simplicious Maende Osiche & another v Cleophas Kundu Masibo (suing as the legal administrator and representative of the estate of Salton Walunywa Kungu-deceased) (2020) eKLR and Mohamed Iqbal & another v GOW (deceased suing through legal representative MW & MWW) (2019) eKLR.

11. Counsel submits that under Sections 107, 108 and 109 of the Evidence Act, the respondent bore the duty of proving that the appellants’ driver was negligent. He submits that the police’ evidence was not binding on the court since neither the Police Officer nor the Investigating Officer were at the scene at the time of the accident. David Kanjogi M’mugaa v Francis Muthomi (2012) eKLR, Antony Musita & another v Purity Gatakaa & 2 others HCA 2 of 2009 (Meru), Pesa Hamisi v P N Mashru Limited (2020)eKLR, Nicholas King’oo Kithuka V Jap Quality Motors & another (2021)eKLR, Morris Njagi & another v Beatrice Wanjiku Kiura (2019)eKLR, Kennedy Nyangoya v Bash Hauliers (2016) eKLR, Commercial Transporters Limited v Registered Trustees of the Catholic Archdiocese of Mombasa (2015)eKLR, Geoffrey Kiiku v Francis Njuguna (2018)eKLR, Jacqueline Mueni Muasya v Kenya Power & Lighting Co Kimunya Julius (2019)eKLR have been cited.

12. On the second issue, it is submitted that the trial magistrate failed to subject the evidence to exhaustive examination before rendering the decision for example the allegation that the driver was driving at an excessive sped was not proved, the fact that the respondent’s motor vehicle rammed onto the appellants motor vehicle which was stationary. It is the appellant’s submission that the fact that there were no speed bumps was not controverted at trial. He thus states that DW 1’s evidence was more believable than the respondent’s evidence. In this regard, the authority in Jackson Mutuku Ndetei v AO Bayusuf & Sons Ltd (2007) eKLR, Postal Corporation of Kenya & another v Dickens Munayi (2014) eKLR, PAS v George Oyango Orodi (2020)eKLR, Geoffrey Mungai Kamau v Sunrise (1976) Limited & another (2020)eKLR and Susan Kanini Mwangangi & another v Patrick Mbithi Kavita (2019) eKLR have been cited in support.

13. On the third issue, counsel submits that the head of special damages was awarded in the absence of proof of such expenditure. Particularly, counsel faults the award under towing charges, fees for copy of records and loss of user. He contends that a schedule of payments is not proof of payment and that the respondent failed to exhibit income tax returns showing that he received income from the motor vehicle. On this limb, counsel relies on the authorities in Ali Abdi Dere v Firoz Hussein Tundal & 2 others (2013) eKLR, Herbert Hahn v Amrik Singh (1985)eKLR, Joseph Kimani & another v James Kangara Kahanya (2017)eKLR, Ryce Motors Limited &Another v Elias Muroki (1996)eKLR, Unga Limited & Another v James Njuguna Njoroge(2012)eKLR, Gerald P.O Onyango v Cooperative Bank of Kenya Limited (2016)eKLR, Ipsos Limited v Kenya Audience Research Foundation Limited & 69 Interested Parties (2020)eKLR, Clement Muturi Kigano v County Government of Mombasa & 2 others (2020)eKLR, Joseph Kimani & Another v James Kangara Kahanya (2017)eKLR, John Elego & 103 Others v Pressmaster Limited (2018)eKLR, Mugo Mungai &4 others v Official Receiver &Provisional Liquidator (Capital Finance Limited and Pioneer) & 2 others (2019) eKLR and Samson Gwer &5 others v Kenya Medical Research Institute & 3 others (2020)eKLR.

14. On his part, the respondent through Mr Anwar, counsel submits on the following issues;1. Whether the learned magistrate erred in fact and in law in holding the defendant’s jointly and severally liable for the accident.2. Whether the learned magistrate erred in fact and in law in condemning the appellants herein jointly and severally to pay the respondent herein cumulative sum of Kshs 519,195/- as special damages and loss of user.3. Whether the appeal herein has merit and what orders should thus be granted.

15. On the first issue, it is submitted that the appellants motor vehicle was being driven at a high speed and wanted to pick passengers by the roadside thus hitting the respondents motor vehicle which was stationary waiting to join the main road. That as a result of the collision, the respondents motor vehicle was hit on the left side. He thus submits that the respondent discharged the burden of proof required of him as mandated by Section 107 of the Evidence Act. He submits that a sketch map is not the only way to determine how the accident occurred since there was an eye witness and corroborated by the police officer and the evidence of DW 1.

16. In this regard, he relies on the authority in Simplicious Maende Osiche & another v Cleophas Kundu Masibo (suing as the legal administrator and representative of the estate of Salton Walunywa Kungu-Deceased) (2020)eKLR, Ann Mwikali Maingi v Bob Morgan Services & another (2017)eKLR, Hyder Nthenya Musili & another v China Wu Yi Limited & another (2017)eKLR, Kenya Power and Lighting Company Limited & another v Dorothy Wanjiru Wainaina & another (2019)eKLR and Kimunya Abednego alias Abednego Munyao v Zipporah S. Musyoka & another (2019)eKLR.

17. Counsel therefore submits that the trial magistrate was correct in holding the appellants 100% liable.

18. On the second issue, it is submitted that special damages must not only be specifically pleaded but also proved specifically. He submits that the respondent spent money in towing and conducting motor vehicle search. On the issue of loss of user, he contends that the motor vehicle was a public service vehicle and brought daily income of Kshs 3,500/- which evidence was adduced and corroborated. The following authorities have been cited; Nkuene Dairy Farmers Co-op Society Ltd & Another v Ngacha Ndeiya (2010)eKLR and Jackson Mwabili v Peterson Mateli (2020)eKLR

19. This being a first appeal, duty of the court was stated in Oluoch Eric Gogo v Universal Corporation Limited (2015) eKLR, where it was held;

20. As a first appellate court, the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused in the Court of Appeal case of Selle & Another v Associated Motor Boat Co Ltd &Another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect……

21. The court has carefully reviewed the evidence on record and is of the view that the issues for determination in this appeal are twofold; liability and quantum, more so, the trial court’s finding on special damages.

22. On liability, the subordinate court found as a fact that the defendants were liable for the occurrence of the accident. The respondent pleaded negligence and particularized the acts of negligence on the appellant’s driver under paragraph 5 thus; driving at an excessive speed, driving without care and attention to other rod users, failing to heed the presence of the plaintiff’s motor vehicle, driving into the plaintiff’s rightful lane, driving without regard to other road users, failure to observe highway code and traffic rules, failing to slow down, swerve, stop or control motor vehicle, causing the accident and failing to stop before joining the highway.

23. In his evidence in chief, PW 1 stated that while heading to Kanduyi from Bungoma, he saw a vehicle approaching, he noticed it overturn. He applied brakes but hit him on the left side. PW 2, the Police Officer stated as follows;

24. From the recommendation, he blamed the motor vehicle KBA 993W which was entering the highway from a feeder road but failed to give way to registration number KBC 181Z.

25. It is also worth noting that there was no eye witness who could ascertain and or who saw the accident occur so that what the court had was PW 1 and DW 1 who were both the drivers of the vehicles involved. PW 2 the police officer stated that the accident was investigated by an officer who was did not testify.

26. The learned trial magistrate held thus;However, I have analyzed the evidence of PW 2, the police constable Lydia Meli, she told the court that investigations into the matter had been completed and the defendant was the one found liable for the accident.In my view, this is supportive of the evidence of the plaintiff. The fact that the investigating officer arrived at that conclusion, after conducting investigations, sways the baton towards the plaintiff’s side in regards to this case.

27. From the evidence on record, the parties shifted blame. PW 1’s claim is that he was hit by the appellant’s motor vehicle while on his lane and DW 1 stated that he was hit by the respondent’s vehicle when he was stationary by the roadside. Either way, an accident occurred and from the evidence on record, it could not be established with certainty who was to blame for the accident. It is also a fact that PW 2 did not produce the sketch map which would have aided the court in arriving at the conclusion.

28. The importance of producing a sketch map showing the exact point of impact was discussed in the case Postal Corporation of Kenya & Another v Dickens Munayi (2014) eKLR where it was held:-

29. In my view, it is only a sketch plan of the scene that could clearly map out how the accident occurred and particularly where the point of impact was. The lack of this crucial piece of evidence leads me to doubt the entire evidence of PW2 and PW3. It also costs benefit to the defence case that probably it could as well be the respondent who pulled to his lane.

30. It is settled that there can no liability without fault as was stated in East Produce (K) Limited v Christopher Astiado Osiro in Civil Appeal No 43 of 2001 where it was held:-It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku v Kenya Cargo Hauling Services Ltd 1991 where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.

31. Under Section 107,108 and 109 of the Evidence Act, Cap 80, it is the duty of he who alleges to proof the existence of such facts and circumstances that would entitle the court to arrive at a certain conclusion. In the circumstances of the appeal before-hand, either party was duty bound to adduce sufficient evidence in support of its case.

32. There come situations when the facts of the case present a scenario where it is difficult for the court for the court to ascertain the blameworthy party. In such case, the fairest approach to be taken by the court is apportion liability equally between the parties. This was the case in Lakhamshi v Attorney General (1971) EA 118, 120 where Spry VP observed; -

33. It is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents, it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.

34. Having analyzed the evidence on record, I find that there was no clear evidence on record demonstrating that either party was at fault. In the circumstances, the trial magistrate was to find that in the absence of sufficient evidence pointing at either party’s fault, the logical conclusion would be to apportion liability equally between the parties.

35. The trial court’s finding on liability is therefore set aside and substituted therefor with a finding that both parties are liable to the occurrence of the accident at the ratio of 50% each.

36. On the issue of quantum, the trial court awarded the respondent special damages in the sum of Kshs 519, 195/= made up as follows; Kshs 550/- for copy of records, Kshs 8500/- in towing charges, Kshs 365,000/- for an assortment of parts, Kshs 30,000/- for spray works, Kshs 37,500/- for panel beating, 71,400/- for loss of user at the rate of Kshs 3,400/- per day for 21 days and Kshs 245/- being posting charges.

37. On this limb, the appellant faults the award for failure to have been specifically pleaded and proved. A look at the plaint shows that the respondent had particularized special damages under paragraph 7, 8 and 9 has sought the sum of Kshs 519, 195.

38. The appellant’s attack is premised on the ground that receipts were not produced to prove the particulars on loss of user. Counsel contends that schedule of payments produced a PE-10 does not qualify to be proof of special damages.

39. Having perused the record, the court notes that the production of this schedule was not objected to by the appellants. The schedule was produced by an official of Bungoma Line Sacco where he maintains the schedule as the secretary.

40. In any case, the schedule is kept in the ordinary cause of business and shows the income made by the respondent’s motor vehicle. There is no way the respondent is expected to produce a receipt for the money that he makes. I therefore find and hold that the schedule of income was sufficient proof in the circumstances.

41. As regards the other heads of special damages stated in the preceding paragraphs, the court has perused the entire record and is satisfied the receipts in support of each head was produced and pass the test required of special damages.

42. Having said as such, the award of special damages is hereby affirmed save that liability having been apportioned equally, the corollary order is that the sum of Kshs 519, 195/- awarded in special damages is therefore subjected to the 50% contribution making it Kshs 259, 597/= which is awarded to the respondent.

43. On the issue of costs, the appeal is partially successful and each party shall therefore bear the costs of this appeal.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S N RIECHIJUDGE