JOHN MAINA VS ELIAS KIPTUM

1. This appeal by way of a memorandum of appeal dated 19/4/2023 arises from a suit brought by way of a plaint amended on 7/11/2023 by the respondent against the appellant as 1^st defendant and Fahari Cars Ltd as 2^nd defendant for material damage to the respondent’s motor vehicle registration number KAS 566Z. It was alleged in the amended plaint that on 11/4/2017 the appellants’s motor vehicle registration number KCK 622Z hit the respondent’s said motor vehicle from the rear causing extensive damage to it. The respondent blamed the appellant’s for negligence and causing the accident. The respondent sought compensation against the appellant for the damage and loss to his vehicle in the sum of KShs 172,850/= and loss of user in the sum of KShs 52,000/=.   
2. The appellant filed a defence and counterclaim dated 29/5/2018 and denied the respondent’s claim for compensation. He instead laid blame for the accident upon a 3^rd party Edith Nganda against whom the counter claim was addressed claiming that the driver of motor vehicle registration number KCK 622Z was negligent in his manner of driving his said motor vehicle.
3. The suit proceeded by way of hearing where each party made available witnesses who adopted their respective witness statements, testified and were cross-examined.
4. The respondent Elias Kiptum testified as PW 1 and called PW 2, PC Boniface Kirimi of Tigoni police station who produced a police abstract of the accident that led to the suit herein. He said that it was a multiple accident involving 5 vehicles. He said the police abstract he produced was for the two motor vehicles in this case and that motor vehicle registration number KCK 622Z was blamed for the accident.
5. In cross-examination, PW 2 said that motor vehicle KCK 622Z was blamed for failing to keep a safe distance behind motor vehicle KAS 562Z. He disagreed with learned counsel for the appellant that the vehicle at the end should be blamed for triggering the accident.  
6. The appellant John Maina Githinji testified in defence. The other witness who he had called was stood down and never recalled to complete his testimony. He said that in the series of vehicles on the road those ahead including his had stopped when the vehicle that was behind him, registration number KBR 659B, hit his vehicle and in turn his vehicle hit the respondent’s vehicle which was ahead of his. He therefore blamed the driver of KBR 659B for all the accidents that followed his vehicle with the one behind. He conceded that indeed his vehicle had hit the respondent’s vehicle and said it was due to the impact of KBR 659B hitting his vehicle.
7. In the meantime, the appellant managed to settle his claim against Edith Nganda without her attending court. He says that Edith Nganda paid compensation for the damage caused to his vehicle. On the basis of that settlement, the appellant strongly contended that he cannot be blamed for the damage to the respondent’s vehicle.
8. Upon analyzing the evidence, the learned trial magistrate found that the respondent had proved his claim against the appellant. He found the appellant wholly liable for the accident. He consequently entered judgment for the respondent in the sum of KShs 172,060/= against the appellant with costs to the respondent.
9. Dissatisfied with the learned magistrate’s decision the appellant now appeals to this court setting out some eight grounds of appeal in his memorandum and praying that the judgment of the learned magistrate be set aside.
10. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
11. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
12. The eight grounds of appeal set out in the memorandum are basically one issue being raised in so many paragraphs, that the learned trial magistrate erred in failing to give due regard to the appellant’s version of events as to how the accident occurred and in finding the case proved against the appellant against the weight of the evidence tendered at the hearing.
13. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:

“An appeal to this Court from a trial by the High Court is by way of retrial 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 conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.  In particular, this court is not bound necessarily to follow the trial judge’s findings 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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

1. In this case, there is no dispute that the appellant’s vehicle rammed into the rear of the respondent’s vehicle. There is also no dispute that the accident involved multiple vehicles and that the appellant’s vehicle had in turn been rammed from behind by another vehicle. The respondent’s case was that the appellant was all the same negligent in failing to keep a safe distance from his vehicle such that when his vehicle was hit, the impact could not have caused it to move to the point of ramming the respondent’s vehicle. The appellant on his part maintains that having stopped his vehicle, only the driver behind him could be blamed for all the accidents to the other vehicles.
2. The appellant is not alleging contributory negligence against the respondent. His position is that a third party caused the accident. Clearly, the respondent could not have known what triggered the vehicle behind him to hit his. All he knows is that his vehicle was hit from behind while it was stationery on the road due to some obstruction that had caused traffic to be immobile at that point. He was bound to, and rightly so, to blame the driver who was immediately at his rear. It may be true that the last vehicle in the queue caused the chain reaction that caused the multiple car accident. It follows that each driver will have to sue the immediate driver behind for negligence by failing to maintain a safe distance. Of course the driver behind may plead that the driver ahead stopped suddenly without any indication and in that case the court seised of the facts of the case will have to decide upon apportionment of liability.
3. However, that is not the case herein where the appellant blames a third party for the accident. In such a scenario, the proper cause to have taken was to institute third party proceedings against the third driver as provided for under Order 1 Rule 15 of the CPR. That was not done in this case. Instead, the appellant chose to bring a counter-claim against the third party. It is quite interesting that somehow he says that he managed to get compensation from the third party. The procedure adopted was wrong and if the respondent had applied to have the counter-claim struck out, that would have been granted. A counterclaim is a claim for relief made by the defendant against the plaintiff lawsuit in response to claims made by the plaintiff (See Order 7 Rule 3 CPR). A third-party action on the other hand is made by the defendant against a person not a party to the action who is or may be liable to the defendant or to the plaintiff for all or part of the plaintiff\'s claim against the defendant.
4. The result of the foregoing analysis is that the appellant did not offer any defence to the respondent’s claim that he was to blame for the accident.
5. Police investigations contained in the police abstract produced by the respondent through PW 2 showed that the respondent was to blame for the accident. Cross-examination by learned counsel for the appellant did not impeach that finding by the police. The learned trial magistrate was therefore entitled to rely upon it. With two pieces of evidence showing that the appellant was to blame for the collision between his vehicle and that of the respondent I find no reason to fault the finding by the learned trial magistrate that the appellant bore the blame wholly for ramming into the respondent’s vehicle for failing to keep a safe distance behind.
6. Therefore, the learned magistrate in this case cannot be faulted for relying upon the police abstract which was made available to him as evidence. This was evidence supporting that of PW 1 the driver of the other vehicle. The learned magistrate was satisfied according to his evaluation of the evidence that it was sufficient to prove the case. I find no reason to find otherwise as her conclusion was reached based on evidence available to him and not from failing to consider the appellant’s evidence.
7. The damages awarded were equally proved as pleaded and supported with relevant documents.
8. Consequently, I find the appeal has no merit and it fails. The judgment and order of the learned trial magistrate is affirmed in its entirety.
9. The respondent shall also get the costs of this appeal assessed at KShs 30,000/=.
10. Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 19^th day of September 2024.