Aggrey Kiplagat Kimaiyo VS Andy Fowarders Service Limited

1) On 16/8/2019, the   learned trial   magistrate C.A Mayamba PM   delivered   his judgment  in Kilungu   PMCC 110/2016  in which  he found in favour  of  the  plaintiff -  as  against  the  defendant  - liability  at  100%,  and  special  damages  of  Ksh. 1,086,930 plus costs and interest  at  court  rates.
2) The defendant  was aggrieved  and filed  this  appeal  on the  following  grounds;
1. That   the learned  trial magistrate  erred  in law  and in fact in failing to  dismiss the suit  against  the defendant considering that the plaintiff had  no  locus  standi  to  institute   the suit  against defendant   failed  to establish  and prove  the doctrine  of  subrogation in their   pleadings  and hearing   of the suit.
2. That   the learned   trial magistrate     erred in law and in fact in failing to dismiss the suit against the defendant    considering   that the plaintiff   failed to establish and prove the doctrine of subrogation in their pleadings  and hearing of the suit. 
3. That the learned  trial  magistrate  erred  in law   and in fact in failing to dismiss the suit  against  the defendant considering  that the plaintiff   completely  failed  to  establish  a  nexus  between the plaintiff  as  named  in the pleadings,  with the  subject  matter of the suit. 
4. That  the  learned  trial  magistrate  erred in law  and in fact in failing to dismiss the suit  against the defendant considering that the plaintiff failed  to produce  sufficient evidence, specifically  but  not limited  to the policy  instrument  and the  copy of  records  in support  of its claim. 
5. That  the learned  trial    magistrate    erred  in law  and in fact in failing to dismiss  the suit  against  the Defendant considering that the plaintiff  as  named  in the pleadings  was not called to adduce  evidence  either  as the  claimant  or  witness in the suit. 
6. That  the  learned  trial  magistrate  erred in law  and in fact in failing to dismiss the suit  against the defendant considering  that the verifying  affidavit  was deponed   by  a stranger  to the suit  who was not  called  during  hearing   to  adduce   any evidence  and/or   support  the averments  in the plaint  nor  was his  relationship  to the  plaintiff established. 
7. That  the  learned   trial  magistrates  erred in law  and in fact in failing  to dismiss   the  suit against   the  defendant   and relying on  an expert  report prepared   by  an unqualified  layman. 
8. That the    learned trial magistrate  erred in law and in fact in awarding damages  when no  nexus   had  been established   between the plaintiff  in the pleadings  and the receipts  produced  as evidence. 
9. That the   learned  trial magistrate  erred  in law  and in fact in failing to dismiss the suit  against  the defendant considering   that the plaintiff’s suit  had been filed  out of time  and no court order was produced  allowing  filing of the suit  out of time  despite  the same  having been contested  during  the hearing of the suit. 
10. That the  learned trial magistrate  erred in law  and in fact by failing to consider  the appellant’s submissions  and authorities  on record  on both  liability  and quantum.
11. That   the learned   magistrate  erred in law  and in fact in considering  evidence  that was never  on record and issuing judgment on presumptions  and issues  not established  in evidence. 
12. That    the learned trial  magistrate’s judgment   was thus unjust,  against  the weight   of  evidence,  submissions  and authorities  relied  upon   by the defendant and was based upon misguided  points  of  fact  and wrong principles  of law  and has occasioned  a miscarriage of justice.  
3) The suit   arose out of a road traffic   accident that   occurred on 9/6/2013 where vehicle registration motor no. KAY 554, Iveco trucker  registered    in the   name of the plaintiff collided with motor vehicle registration no.  KBU 776G Toyota Corolla registered in the name of the defendant.  It was claimed that the defendant   motor  vehicle   was so  negligently and  recklessly  driven   that  it  rammed in the front of  the  plaintiff’s  motor vehicle   causing   it extensive    damage  on its  fronts  parts.
4) As   a  result   the plaintiff  incurred   expenses  in the repair  of the  motor vehicle     in the form of   special  damages  to wit:-
- Repair charges    Ksh.  1,043,212/=
- M/V Assessors fees   Ksh.      18,220/=
- Investigators fees   Ksh.       25,298/=
- Police Abstract   Ksh.     200/=
Total      Ksh.    1,086,930/=
5) It  was  the  plaintiff’s claim   that at the material  time  the motor vehicle   was insured  by Heritage  Insurance   Company Ltd,  which company  settled   the  cost of the repairs  at  Ksh.  1,086,930.  That    the  suit  was  brought  under  the  doctrine   of  subrogation to seek  reimbursement  of the total  sum  of Ksh.  1,086,930 which the insurance    company had incurred. 
6) The   defendant   filed a defence in which he denied all the claims and put the plaintiff to proof   thereof.
7) The matter was heard via viva   voce evidence.  The plaintiff  called    5(five   witnesses)
- Regina  Ireri
- Jerimiah  Gachoi
- Alexander   Meithei Nuke
- No. 63116 PC Andrew  Maiyo
- Dennis  Kanyatta
8)   The defendant    did not call any witnesses. 
9) The facts of the case were aptly summarized by the learned  trial  magistrate’s  judgment; PW1 Regina  Ireri stated that    she was the legal   officer with Heritage Insurance   Company Limited; that the plaintiff was the registered   owner of motor vehicle    registration number KAY 554H Iveco tracker; that the   same had been insured   under police number NP12V00059; that the motor  vehicle   was  involved  in a  road  traffic accident   on the 9th June , 2013  at  about  5.45am; that the plaintiff was driving from Mombasa to Nairobi and that the accident happened on the lawful lane of their insured; that the salon car had veered off its lane into the lane of their insured    vehicle causing the accident and hat the driver of the salon car died on the spot.  The estate   of the deceased driver sued their  client in Kilungu PMCC No. 147  of  2014  and 148  of  2014  which   were  dismissed  as  their  insured    was  not  found  liable. She testified that   after the accident their insured’s  motor   vehicle   was  extensively  damaged; that the damage  was assessed and  repair costs  put  at  Ksh.  1,046,065; that the motor   vehicle was repaired   and released to their  insured  on the 19/8/2023, with  insurance   settling the amount  at  Ksh.  1,043,212; that the assessor charged Ksh.  28,220 for the work that he did while the    investigator charged Ksh.  25,298.  She produced the claim   form, the receipts for the     money paid to the investigator as PEX1 and PEX3 respectively; that the defendant    settled the amount raised in the fee note letter from Auto Fine Ltd and via receipt   dated 3/9/2023 and produced the same as PEX4(a) and the receipt   of payment of Ksh. 1,043,212 as PEX4(b).  She testified further that the 3rd   party motor vehicle   was blamed for the accident and that they hired investigators whose fee was settled the invoice was PEX5(a) and the payment voucher as PEX5(b).  She also produced   a demand letter by their advocates as PEX9. 
10) PW2 Jerimiah Gachoi testified that he worked at Heritage   Insurance   as an assessor. He was instructed to assess motor vehicle   registration   number KAY 554H Iveco Euro Tracker Prime   Mover.  His repair estimates were Ksh. 1,084,066. He produced   the estimate report as PEX7 and the re inspection report as PEX8. 
11) Alexander   Meithei Nuke was PW3 and stated that he was the driver of motor vehicle registration number KAY 554/ZD 3805.  On the material day he was coming from Mombasa port and was headed to Nairobi, and was moving   at 40km per hour.  He stated that on reaching Kiongwani area between Kiongwani matatu stage and Kiima   stage towards Salama, he noticed Motor Vehicle KBU776G a Toyota Corolla moving at a high speed.  It was his testimony that the motor vehicle veered off its lane into his lane. He stopped his motor vehicle   hoping that the other motor vehicle would pass in front of his to its rightful lane to avoid any collision.  There was a head on collision which prompted the other vehicle to be hauled to the right side whereas his motor vehicle did not   move an inch.  The driver of the salon car died on the spot with the lady passenger escaping with slight injuries. It was his position that the driver of the other motor vehicle was to blame for the accident. He stated that the motor vehicle was towed to Auto Fine   Garage for repair. 
12) PW4 was No. 63116 PC Andrew Maiyo who stated   that an accident was reported at Kiongwani area via OB No3/9/2013.  It involved two motor vehicles registration number KAY 554/ZD  3805 driven by Alexander Meithei   Nuke and KBU 776U driven by Abednego Muuo.    It was his testimony that the saloon car was headed   towards Mombasa    direction when it rammed into the lorry which was coming from Mombasa   direction.  The driver of the Salon car died on the spot.  According to the sketch map, the prime mover was on its lane though the salon car was found off the road about 6 meters facing Mombasa on the left side. He stated that the driver of the lorry Alex Nuke recorded his statement and blamed the driver of the Salon car.  He produced the    police abstract as PEX2. 
13) Dennis Kanyatta was PW5. He was the investigator instructed by the insurance company to look into circumstances leading to the accident. He testified that he contacted the driver of the suit motor vehicle and also visited the scene as well as the O.B report. He managed to get the driver’s statement which formed part of his report.   He noted that   the owner of the 3rd party motor vehicle was to blame for the accident. He produced his report as PEX6 and stated that he had charged Ksh.  25,298 to prepare the report. 
14) Parties   agreed to canvass the appeal by way of written submissions which   I have carefully read together with the authorities cited.  As the first appellate court I am aware of my duty to review the evidence and draw my own conclusions, keeping in mind that the witnesses were heard and seen by the learned trail court. Further, that I cannot overturn the decision of the trial court unless it was made on wrong principles.
15) From the submissions it is evident that a   number of key issues arise,
i. Whether the suit was filed out of time
ii. Whether    the suit complies with the doctrine of subrogation. 
iii. Whether the plaintiff was established a nexus   between itself    and the motor vehicle registration No. KAY 554H and the Insurance Company.
iv. Whether the investigation report was credible. 
v. Whether   the defendant/appellant was liable.
16) On the   1st issue -  it was submitted for the appellant that the respondent did not   file any order to prove that there was an extension of time to file the suit   out of time and that in any event   the suit was not covered by Section 27(1) of the Limitation of Actions   Act because it was not a personal injury claim. The appellant also relied on Rosemary Wanjiru   Kingu – vs - Elija Machara Githinji & Anor NRB HCC No.  145 of 2010 where the honorable judge relied on the Court   of Appeal    finding   in Mary    Osundwa vs Nzoia Sugar Company Ltd CA  224 of 2000 where it was held;
“Section 27(1)   of the Limitation of Action Act clearly lays down that in order to extend time for filing a suit the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed must be in respect of personal injuries to the plaintiff as a result of the tort.”
17)  For the respondent it was submitted   that the suit was filed within time and the application to extend time was a cautionary measure. That    in any event though the accident happened   on 9/6/2016 and the suit filed on 8/6/2016, the year 2016 was a leap year and there was an extra day to it hence -  the filing of the   suit on 9/6/2016 was not out of time.   The learned   trial court also put forth the position that three   years would end after   midnight on 9/6/2016. 
18) Counsel for the appellant argues that the appellant could only have challenged   the issue of time at the hearing of the suit because applications for extension of time are   always ex parte.
19) Time is of the essence -  a suit filed out of the prescribed time would be a non-starter unless the court, on powers donated to it by statute extends      that time.  Otherwise such a suit would raise the issue of the jurisdiction of the court to hear and determine  it before  the issue of time is dealt  with. 
20) I have perused the   defence  dated  23/8/2016  and it is evident that defendant   did  not raise  the issue  of  time in the defence. In addition, if indeed there   was an issue with time there is a procedure for dealing with the issue before the hearing of the suit. Be that as it may I have looked   at the plaint. It    was filed on 9/6/2016 which was the last  day for filing and I will  find  that this  ground  fails .
21) On the  doctrine of  subrogation , it was argued  for the  appellant that for  it to apply  the  respondent ought to have  established  liability on the part of the appellant,  the ownership  of  motor vehicles,   and to have produced    the Policy  Document  between it  and the Insurance.
22) Each party cited  authorities  on what the doctrine  of subrogation is  -
The    appellant cited Thomas Muoka  Muthoka  &  anor -  Vs  Ernest  Jacob Kisaka  NRB  HCCC  No. 1453  of  2005 where the judge held  that:- 
“ A subrogation   claim   within  a trial  would  arise  in cases  of material  loss claim  whereby the insurance    company  seeks  to have  a refund  from a  defendant  for damages  caused to their  insured/plaintiff’s  materials loss.  The party is the plaintiff who must come to give evidence to court, supported by a witness from the insurance company to prove payments that had been duly paid to the said plaintiff.”
23) The respondent cited from The   Black   Law Dictionary Edition 11th at page 1726  on the definition of the word subrogation as;
“The   substitution of one party of   another, whose    debt the party pays, entitling   the paying party to rights, remedies or securities that would otherwise   belong to the debtor.”
And that of the doctrine of subrogation as follows,
“ The principle  under  which   an   insurer  that  has paid  a loss under  an insurance   policy  is  entitled  to all the rights  and remedies  belonging to the insured    against  a  third  party  with respect to any loss covered  by the policy.”
24) It is argued   for the appellant that the 1st     step  in establishing the applicability of the doctrine of subrogation would be to avail the evidence that would  to  create  the nexus  between the  plaintiff  and  the  insurance   company  through   the production of the policy  document;  - otherwise how else  would  anyone  know  that  indeed   that there  was a relationship  to  give  a basis  to the claim?. 
25) The respondent   relied   on Gahir Engineering Works Ltd Vs Rapid Kate  Service  Ltd  & Another   [2018] eKLR where  the  court  stated:-
“19. The fact that   the  appellant  did  not produce   in evidence  the policy   document  itself  though   material  was not fatal  to the insurer’s claim  since it was only required  to prove its  claim  on a balance  of  probabilities  not  beyond  reasonable    doubt.  If the   insurance    company had not insured    the appellant’s vehicle it would not have taken the trouble   to appoint an assessor to estimate the repair costs, appoint investigators and more important it would not have shouldered the burden of financing the vehicles’ repair costs and the other incidental expenses.”
“ The claim by  the learned  trial  magistrate  that the insurance  company required    to  exhibit    the insurance   policy   itself   in order to prove  its  claim was a kin to require the company  to prove  its  case    beyond reasonable  doubt  which  flew   in the  face of  the law governing the standard of proof in civil  cases. It is  therefore my findings  that the   learned  trial  magistrate  misdirected  herself  by not  properly  interrogating  and weighing the evidence  placed  before  her and thereby reached an erroneous  conclusion that the appellant’s  insurer  had  not  proved its  case to the standard  required  by the  law.”
26)  It is argued    that in the pleadings the plaintiff did not plead    any policy  number  that  would  be  corroborated  by any  the other evidence that was produced by the plaintiff including the police abstract. 
27) It  is  not in dispute  that  the police   abstract    that  was produced    clearly set  out  the insurance companies that  had    insured  the motor  vehicles that  were  involved  in the road  traffic  accident  -  for  KBU  776G   it  is  Kenya Alliance  Insurance  Co.  Ltd P/No.  ML/01/MC/47007 for the 2nd Motor  Vehicle  which would   KAY 554H  -  it  is   NP12V0059/Comp  issued  by Heritage  Insurance  Co.  Ltd.
28) In the pleadings   the respondent does clearly state that it was   insured  by Heritage  Insurance    Company.  Other  than the police  abstract,  there were other  documents produced  i.e  the  Motor  Accident  Report  Form  made  by the plaintiff/respondent  received   by Heritage  Insurance   Co.  on 2/7/2013 which bears   the policy number and the registration number of the m/v as indicated in the Police Abstract.
29) However    other    than that     there is no other document produced by the  plaintiff/respondent  that  bears the registration  number of the     motor vehicle  or  the Insurance  Policy  Number – issued  or  made  by Heritage    Insurance  Company.
30) The plaintiff  produced  the police  abstract  which simply  states  that the 2nd  motor  vehicle   was insured  by Heritage Insurance Company , but where is the evidence that the motor  vehicle   was actually  registered  in the name of the plaintiff or respondent?.  The Police Abstract PEX1 does not say so,  the registration   number   of  the motor  vehicle  KAY  554H  appears  in the payment  documents  issued  by Heritage  Insurance   Company in PEX5(a)   motor  vehicle  registration no KAH 554H policy no.  101278001000059. It states that the client is -  Acceler Global  Logistics  Limited   and/or    Trans global  Cargo   Centre and /or   Standard  Chartered  Bank  (K)  Ltd -  the name  Andy  Forwarders  Ltd does   not  appear anywhere on that document.
31) In PEX 7 the estimates and report form, one can see  that it bears the letter head of Heritage   Insurance  Company there is  no policy  number  but the registration number of the motor vehicle    is  there and name of the plaintiff/respondent   as insured  . The common number in all these   documents is a claim no.  501378000089.
32)  With respect to the ownership of the motor vehicles, the learned  trial   magistrate  found that the ownership  of the motor vehicles was established   by the production of the police  abstract . But is that so? I scrutinized the Police abstract. It is not in doubt that it shows clearly who the insurance company was for each m/vehicle.  No  evidence   was placed before    the court  to establish that indeed KAY 554H was registered in the name of the Plaintiff/Respondent. In fact, this also applies to the other m/vehicle. The respondent did not place any evidence before  the court  to  establish   that the motor vehicle   registration no KBU  776  G  was registered  in the name of the appellant.   .   
33) The police   abstract was PEX 1. The ownership of the motor vehicles  was not indicated .  Therefore the trial court was not right in finding that the ownership was established by evidence in the Police Abstract. While the principle is correct, the trial court did not have the evidence of the police abstract upon which it would have based its finding. There was no other evidence placed before the court to prove ownership of the two m/vehicles. Had those details appeared in the Police abstract PEx 1, that evidence would have been acceptable as per the authorities available. But without that the court only had evidence of insurance but no proof of who were the registered owners of the m/vehicles.
34) Having    failed to establish    that   the motor vehicle   KAY 554H was registered    in the name of the plaintiff how then could the respondent   have established   any   nexus between itself    and insurance   companion whose   behalf   the claim is brought?  How then would have the appellant  been found liable  for  the accident?
35) It is my view that the ownership  of  the  motor vehicle  was  KAY 554H was  at  the   centre   of  this claim -  and  without  proof that the plaintiff respondent was the registered owner of the said m/v the claim has no leg to stand on.   This takes care of the issue no.  (ii)   and issue no.  (iv).
36) It was argued for the appellant that the plaintiff’s case could not be established as the plaintiff    did not testify.  It was argued that  only the plaintiff  would have established the claim to enable Heritage Insurance recoup its   expenses. From the record the plaintiff did not testify. None  of  the  witnesses who  testified   represented  the  plaintiff , not even the   person who  swore    the verifying   affidavit    to  the plaint. It was noteworthy that that deponent  was  unknown   to  all the witnesses. So, if the deponent to the verifying affidavit was unknown to all the witnesses, and the plaintiff Andy Forwarders did not testify, and no representative of Andy Forwarders testified , and there was no evidence that Andy Forwarders was the registered owner of the m/vehicle, only one conclusion can be drawn from that scenario; The case for the plaintiff could not have been established.   The  failure  by the   plaintiff to  testify,  the absence  of the plaintiff’s name  as the registered  owner  of the motor  vehicle  in the  police  abstract  or  any  other document  that  would  support  that    claim,  the  failure to  produce   the policy  document by the PW1,  the   failure   by the investigation  report   to  contain  the policy document, the absence of the policy   number  in the pleadings  left a gaping  gap in the case  for the  plaintiff  that  could   not  be  filled  on a  balance of probability.  This is the evidence that stands   between   the Insurance  company and  its  money.
37)  Why was it so hard to establish the ownership of the motor vehicle   by the plaintiff? I have seen that the   respondent   through   a supplementary record of appeal attempted  to produce a Police abstract dated 3/7/2013 showing details of the owners of the   2 motor vehicles. All I can say is that this document does not form   the part   of the record.  It was not produced as evidence during the trial.   If  this  document  was available   in 2013  -  why  was  it  not produced  at  the hearing by the police officer?  Why was it not part of the annexures to the plaint with the other documents? Its source is unknown, it is a  photocopy which  is  not  even  certified .  The only police abstract   that    was in the  record is marked  as  PEX 1  and does  not    bear    that  evidence that the respondent is trying to introduce through the backdoor. It unacceptable. The best this court can do is to expunge that abstract from the record. 

38) The last   issue is about credibility of the investigation report.   I have perused the report.   Other than the information obtained   from the police- the rest is hearsay from an unverified    source and cannot be relied on. Evidently it was obtained from an unqualified   person who did not establish his qualification as an investigator.
39) In the end, I   have taken guidance from; Fred Ben Okoth – Vs Equator Bottlers Limited [2015] eKLR thus where the court stated that the duty of the court  on a  first  appeal  was well stated   by this court in Selle – vs  -  Associated  Motor  Boat  Company  Limited  [1968] E.A 123 that
“An appeal   to this court   from a  trial   by  the High Court  is by way  of re-trial   and the principles upon  which  this  court   acts  in such  an appeal  are  well  settled.  Briefly put  they  are  that, this  court   must  reconsider the evidence, evaluate it itself  and draw  its  own conclusion  though it should  always  bear in mind  that it  has neither   seen nor   heard  the witnesses and should  make  due  allowance in   that respect.  In particular this court is not bound necessarily to follow the trial judge’s   finding  of  fact if it appears either that he has clearly failed  on some point to take account of  particular  circumstances  or  probabilities   materially to estimate  the evidence, or if the impression based on the demean   our  of a witness is inconsistent  with the evidence in the case general.”
40) Having done so, I find that the appeal has merit and is allowed, the judgment of the subordinate court in its entirety is set aside on both liability and quantum with costs to the appellant.

Dated, signed and delivered via CTS upon notice this 6th day of August 2024

Mumbua T Matheka

Judge