Brief background:
1. On the 1st December 2021 a road traffic accident occurred along Waiyaki Way involving the Respondent’s motor vehicle Registration Number KDB 467M, a tipper lorry Registration Number 42LZ 149135 and the Appellant’s motor cycle Registration Number KMEZ 802K.
2. Thereafter, the Appellant filed a suit against the Respondent on 23rd May 2023 seeking general damages, special damages of K.Shs.57,520/=, costs and interest of the suit.
3. During hearing, the Appellant called three witnesses. CW-1 (Joseph Okumu Misula) CW-2 (Police Constable Vincent Ogola) and CW-3(Dr. Okoth Okere).On her part, the Respondent called one witness, RW-1 (Magdalene Wanjiku Wanyoike).CW1, 2 and 3 produced the Claimant’s list of documents.RW-1 produced REX-1 and REX-2.
4. Judgment was subsequently delivered on 9th February 2024 dismissing the Appellant’s suit with costs.
5. Dissatisfied with the judgment the Appellant lodged a Memorandum of Appeal dated 8th March 2024 seeking the following orders;
a) That the judgment of the Honourable D.S.ASWAM delivered on 9TH February 2024 in Nairobi SCCOM No. 2302 OF 2023 be set aside.
b) That judgment be entered in favour of the claimant as per the claim in the subordinate court.
c) That the Respondent to bear the costs of this appeal.
The Appellant’s Case;
6. The Appellant has appealed to the High Court on the following grounds:
1) That the learned Trial Magistrate erred in law and fact in exonerating the Respondent from liability yet it is the said Respondent's motor vehicle that directly impacted on the claimant by knocking him thereby making him sustain the subject injuries.
2) That the learned Magistrate erred in law and fact in misconstruing and misapplying the concept of Third Party Liability as understood in our civil procedure laws. Had he applied his mind to this, he would have reached no other conclusion than that , it was the Respondent's sole duty to take out a third party notice against the driver of the Lorry KDB 467M to which she attributed her swerving and the eventual causation of the accident.
3) That the learned Magistrate erred in law and fact in declining to acknowledge that the claim in the subordinate court had inevitably invited the Application of Order 1 Rule 14 of the Civil Procedure Rules 2010 in that the Respondent was claiming indemnity from a third party who had not been joined in the suit.
4) That the learned Trial Magistrate erred in law and in misapprehending the ingredients of the tort of negligence in that, had he addressed his mind to these ingredients, the Inescapable conclusion would have been that the claimant had no direct cause of action against any other party but exclusively had a claim against the Respondent who actually knocked him resulting into the injuries.
5) That the learned Magistrate erred in law in applying the complex concept of injury (liability) without impact in an ordinary negligence claim yet this principle is exclusively applicable in cases of nervous shock.
6) That the learned Magistrate erred in law and fact in ignoring the evidence that was tendered by the claimant in support of his claim on the issue of how the material accident happened.
7) That the learned Trial Magistrate erred in law and in fact in overlooking the importance and centrality of the police abstract in not only confirming that the accident happened but also on how it happened.
7. During the trial, it was RW-1’s case that that there was another car that was involved in the accident.
8. The Respondent admitted that he is the one who knocked the Appellant but heaps the blame on a third party.
9. Order 1 Rule 15 of the Civil Procedure Rules provides that ;
15. (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party) —
a) that he is entitled to contribution or indemnity; or
b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or
c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.
10. Reliance is placed in the case of Alexander Kipngetich Sitieny v Japheth Kiplangat Mutai; Andrew Cheruiyot Rotich & 3 others (Third Parties);
“In procedural law, third party proceedings is a useful device in civil action resorted to by a defendant to bring into the suit a third party to the action who may ultimately be liable for the claim of the plaintiff against such defendant. It is a legal tool contrived for the benefit of a defendant who, if defeated in the suit, is entitled to reimbursement by way of indemnity or compensation from third parties. The rationale for it is that the defendant need not be driven into a fresh suit to put his claim of indemnity or compensation into operation. Usually, and crucially too, it is only matters from the same cause of action, or which can be tried together, that are supposed to be handled by way of third party proceedings.”
11. RW-1’s case is that the accident was caused by the tipper lorry driver who knocked her and caused her to lose control of her motor vehicle and knocked the claimant.
12. The alleged Tipper driver’s number plate was pleaded by the Respondent in her defence which would have made it easy for the Respondent to enjoin him to the proceedings of this case but she chose not to.
13. It is the Appellant’s case that during the trial he testified that while at the hospital, a fellow motorcycle riders visited him and informed him that they had written the number plate of the motor vehicle that had knocked him while he was unconscious and they had put the paper in his pocket from where he checked and found the Respondent’s motor vehicle number plate KDB 467M Toyota Vitz and after he recovered, the claimant visited Gigiri police station where he confirmed the details of the Respondent’s motor vehicle.
14. The Appellant’s case was further that the registration number and ownership of the 3rd party vehicle were admitted by the Respondent when she stated that she knocked the Claimant’s motor cycle but she had been knocked by a tipper lorry whose impact made the Respondent to lose control of her motor vehicle and ended up knocking the Claimant.
15. The Appellant has re highlighted the above in the Supplementary Submissions.
Respondent’s Case;
16. According to the Respondent the appeal lacks merit. It is the Respondent’s case that the Appellant knew the third party who caused the caused the accident as a result of which The Appellant is to blame.
17. It is further, the Respondent’s case that the Appellant failed to call the Boda rider who purportedly put the note with the number plate of the vehicle that caused the accident in his pocket as a witness.
18. According to the Respondent the trial Magistrate arrived at the correct finding because the Appellant did not prove his case.
Analysis and determination;
19. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA it was held thus:
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
20. The court has reviewed and reanalysed the evidence that was been tendered by the parties during the trial, including the police abstract. The court is satisfied that the accident actually occurred. This is not in dispute.
21. Being a case of negligence, it is upon the person who sued to prove the particulars of negligence in order to succeed in proving liability. Failure to prove negligence, then means that the case collapses.
22. This Court is satisfied that indeed the Respondent is the author of his own misfortune. I say so because it is clear that the Respondent knew that there was a third party who was the primary cause of the accident. However, out of his own ignorance, he ignore the necessity to join the third-party into the suit.
23. In the case of Alexander Kipngetich Sitieny v Japheth Kiplangat Mutai; Andrew Cheruiyot Rotich & 3 others (Third Parties);
“In procedural law, third party proceedings is a useful device in civil action resorted to by a defendant to bring into the suit a third party to the action who may ultimately be liable for the claim of the plaintiff against such defendant. It is a legal tool contrived for the benefit of a defendant who, if defeated in the suit, is entitled to reimbursement by way of indemnity or compensation from third parties. The rationale for it is that the defendant need not be driven into a fresh suit to put his claim of indemnity or compensation into operation. Usually, and crucially too, it is only matters from the same cause of action, or which can be tried together, that are supposed to be handled by way of third party proceedings.”
24. RW-1’s case was that the accident was caused by the tipper lorry driver who knocked her and caused her to lose control of her motor vehicle causing him to knock the claimant down.
25. The alleged Tipper driver’s number plate was available and even pleaded by the Respondent in her defence and one is left to wonder why the 3 rd Party Vehicle was not joined into the suit. The Respondent is 100% liable for the accident.
26. The court has looked at the nature of the injuries that the Appellant sustained as set out in the Medical report in assessing general damages.
27. On the issue of costs, the Appellant is successful as a result of which the court finds that the Respondent shall shoulder the costs.
28. In so finding, the court is guided by the case of Jabir Singh Rai.
Determination;
29. The appeal has merit.
Order;
a) Judgment of the Honourable D.S.ASWAM delivered on 9th February 2024 in Nairobi SCCOM No. 2302 of 2023 be set aside.
b) That judgment on liability is hereby entered in favour of the Appellant at 100% against the Respondent.
c) The file is hereby sent back to the Lower Court for purposes of assessment of general damages.
d) Costs to the Appellant.
1. On the 1st December 2021 a road traffic accident occurred along Waiyaki Way involving the Respondent’s motor vehicle Registration Number KDB 467M, a tipper lorry Registration Number 42LZ 149135 and the Appellant’s motor cycle Registration Number KMEZ 802K.
2. Thereafter, the Appellant filed a suit against the Respondent on 23rd May 2023 seeking general damages, special damages of K.Shs.57,520/=, costs and interest of the suit.
3. During hearing, the Appellant called three witnesses. CW-1 (Joseph Okumu Misula) CW-2 (Police Constable Vincent Ogola) and CW-3(Dr. Okoth Okere).On her part, the Respondent called one witness, RW-1 (Magdalene Wanjiku Wanyoike).CW1, 2 and 3 produced the Claimant’s list of documents.RW-1 produced REX-1 and REX-2.
4. Judgment was subsequently delivered on 9th February 2024 dismissing the Appellant’s suit with costs.
5. Dissatisfied with the judgment the Appellant lodged a Memorandum of Appeal dated 8th March 2024 seeking the following orders;
a) That the judgment of the Honourable D.S.ASWAM delivered on 9TH February 2024 in Nairobi SCCOM No. 2302 OF 2023 be set aside.
b) That judgment be entered in favour of the claimant as per the claim in the subordinate court.
c) That the Respondent to bear the costs of this appeal.
The Appellant’s Case;
6. The Appellant has appealed to the High Court on the following grounds:
1) That the learned Trial Magistrate erred in law and fact in exonerating the Respondent from liability yet it is the said Respondent's motor vehicle that directly impacted on the claimant by knocking him thereby making him sustain the subject injuries.
2) That the learned Magistrate erred in law and fact in misconstruing and misapplying the concept of Third Party Liability as understood in our civil procedure laws. Had he applied his mind to this, he would have reached no other conclusion than that , it was the Respondent's sole duty to take out a third party notice against the driver of the Lorry KDB 467M to which she attributed her swerving and the eventual causation of the accident.
3) That the learned Magistrate erred in law and fact in declining to acknowledge that the claim in the subordinate court had inevitably invited the Application of Order 1 Rule 14 of the Civil Procedure Rules 2010 in that the Respondent was claiming indemnity from a third party who had not been joined in the suit.
4) That the learned Trial Magistrate erred in law and in misapprehending the ingredients of the tort of negligence in that, had he addressed his mind to these ingredients, the Inescapable conclusion would have been that the claimant had no direct cause of action against any other party but exclusively had a claim against the Respondent who actually knocked him resulting into the injuries.
5) That the learned Magistrate erred in law in applying the complex concept of injury (liability) without impact in an ordinary negligence claim yet this principle is exclusively applicable in cases of nervous shock.
6) That the learned Magistrate erred in law and fact in ignoring the evidence that was tendered by the claimant in support of his claim on the issue of how the material accident happened.
7) That the learned Trial Magistrate erred in law and in fact in overlooking the importance and centrality of the police abstract in not only confirming that the accident happened but also on how it happened.
7. During the trial, it was RW-1’s case that that there was another car that was involved in the accident.
8. The Respondent admitted that he is the one who knocked the Appellant but heaps the blame on a third party.
9. Order 1 Rule 15 of the Civil Procedure Rules provides that ;
15. (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party) —
a) that he is entitled to contribution or indemnity; or
b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or
c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.
10. Reliance is placed in the case of Alexander Kipngetich Sitieny v Japheth Kiplangat Mutai; Andrew Cheruiyot Rotich & 3 others (Third Parties);
“In procedural law, third party proceedings is a useful device in civil action resorted to by a defendant to bring into the suit a third party to the action who may ultimately be liable for the claim of the plaintiff against such defendant. It is a legal tool contrived for the benefit of a defendant who, if defeated in the suit, is entitled to reimbursement by way of indemnity or compensation from third parties. The rationale for it is that the defendant need not be driven into a fresh suit to put his claim of indemnity or compensation into operation. Usually, and crucially too, it is only matters from the same cause of action, or which can be tried together, that are supposed to be handled by way of third party proceedings.”
11. RW-1’s case is that the accident was caused by the tipper lorry driver who knocked her and caused her to lose control of her motor vehicle and knocked the claimant.
12. The alleged Tipper driver’s number plate was pleaded by the Respondent in her defence which would have made it easy for the Respondent to enjoin him to the proceedings of this case but she chose not to.
13. It is the Appellant’s case that during the trial he testified that while at the hospital, a fellow motorcycle riders visited him and informed him that they had written the number plate of the motor vehicle that had knocked him while he was unconscious and they had put the paper in his pocket from where he checked and found the Respondent’s motor vehicle number plate KDB 467M Toyota Vitz and after he recovered, the claimant visited Gigiri police station where he confirmed the details of the Respondent’s motor vehicle.
14. The Appellant’s case was further that the registration number and ownership of the 3rd party vehicle were admitted by the Respondent when she stated that she knocked the Claimant’s motor cycle but she had been knocked by a tipper lorry whose impact made the Respondent to lose control of her motor vehicle and ended up knocking the Claimant.
15. The Appellant has re highlighted the above in the Supplementary Submissions.
Respondent’s Case;
16. According to the Respondent the appeal lacks merit. It is the Respondent’s case that the Appellant knew the third party who caused the caused the accident as a result of which The Appellant is to blame.
17. It is further, the Respondent’s case that the Appellant failed to call the Boda rider who purportedly put the note with the number plate of the vehicle that caused the accident in his pocket as a witness.
18. According to the Respondent the trial Magistrate arrived at the correct finding because the Appellant did not prove his case.
Analysis and determination;
19. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA it was held thus:
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
20. The court has reviewed and reanalysed the evidence that was been tendered by the parties during the trial, including the police abstract. The court is satisfied that the accident actually occurred. This is not in dispute.
21. Being a case of negligence, it is upon the person who sued to prove the particulars of negligence in order to succeed in proving liability. Failure to prove negligence, then means that the case collapses.
22. This Court is satisfied that indeed the Respondent is the author of his own misfortune. I say so because it is clear that the Respondent knew that there was a third party who was the primary cause of the accident. However, out of his own ignorance, he ignore the necessity to join the third-party into the suit.
23. In the case of Alexander Kipngetich Sitieny v Japheth Kiplangat Mutai; Andrew Cheruiyot Rotich & 3 others (Third Parties);
“In procedural law, third party proceedings is a useful device in civil action resorted to by a defendant to bring into the suit a third party to the action who may ultimately be liable for the claim of the plaintiff against such defendant. It is a legal tool contrived for the benefit of a defendant who, if defeated in the suit, is entitled to reimbursement by way of indemnity or compensation from third parties. The rationale for it is that the defendant need not be driven into a fresh suit to put his claim of indemnity or compensation into operation. Usually, and crucially too, it is only matters from the same cause of action, or which can be tried together, that are supposed to be handled by way of third party proceedings.”
24. RW-1’s case was that the accident was caused by the tipper lorry driver who knocked her and caused her to lose control of her motor vehicle causing him to knock the claimant down.
25. The alleged Tipper driver’s number plate was available and even pleaded by the Respondent in her defence and one is left to wonder why the 3 rd Party Vehicle was not joined into the suit. The Respondent is 100% liable for the accident.
26. The court has looked at the nature of the injuries that the Appellant sustained as set out in the Medical report in assessing general damages.
27. On the issue of costs, the Appellant is successful as a result of which the court finds that the Respondent shall shoulder the costs.
28. In so finding, the court is guided by the case of Jabir Singh Rai.
Determination;
29. The appeal has merit.
Order;
a) Judgment of the Honourable D.S.ASWAM delivered on 9th February 2024 in Nairobi SCCOM No. 2302 of 2023 be set aside.
b) That judgment on liability is hereby entered in favour of the Appellant at 100% against the Respondent.
c) The file is hereby sent back to the Lower Court for purposes of assessment of general damages.
d) Costs to the Appellant.