KISUMU CONCRETE PRODUCTS LIMITED VS Salah Ahmed Ibrahim AND Valentine Lukendo Dibondo KISUMU CONCRETE PRODUCTS LIMITED VS Salah Ahmed Ibrahim AND Valentine Lukendo Dibondo

INTRODUCTION

The appellant in this matter has come to this court challenging the decision of the Learned Honorable Magistrate in Winam PMCC No.114 of 2022.
The appellants appeal is on liability only.
The 2^nd Respondent in this matter did not enter appearance in the Lower court and counsel for the appellant informed this court that judgment had been obtained against him in default thus the dispute before this court is between the appellant and the 1^st respondent .
The appellants memorandum of appeal raises the following grounds:-
THAT the Learned Trial Magistrate misapprehended the evidence on record and therefore erred and misdirected himself in fact and in law in finding that the 1st Respondent had proved his case against the Appellant to the required standard.
THAT the Learned Trial Magistrate erred in law and fact in finding the Appellant and the 2nd Respondent.equally liable for the occurrence of the accident whereas the evidence tendered by the 1o Respondent fell short of the required standard of proof.
THAT the Learned Trial Magistrate erred in law and in fact in concluding that the Appellant had contributed to the occurrence of the accident whereas its motor vehicle KAV 315X/ZG6367 had been rammed from the rear by the 2nd Respondent's motor vehicle registration number KCT 940G.
THAT the Learned Trial Magistrate erred in law and in fact in finding the Appellant liable for the Occurrence of the accident despite the entirety of the evidence proving that the 2nd Respondent's motor vehicle was the sole cause of the accident.
THAT the Learned Trial Magistrate erred in law and in fact in failing to analyse the testimonies presented by the witnesses, specifically the testimonies by the Respondent, the Investigating Officer and the Appellants witness, Rogers Ouma Odhiambo. Further, the Learned Trial Magistrate failed to analyse the evidence tendered by the witnesses, specifically the Inspection Certificate, the photographs of motor vehicle registration number KCT 940G, the Occurrence Book Extract and the Police Abstract dated 14th March 2022.
THAT the Learned Trial Magistrate erred in law and in fact in failing to consider and appreciate the Appellant's Counsel's cross-examination of the 1st Respondent and his witness, specifically the Investigating Officer, and therefore arrived at erroneous determination on liability.
THAT the Learned Trial Magistrate erred in law by failing to consider the submissions made by the Appellant as to the issue of Liability and thus arrived at an erroneous determination.
THAT the Learned Trial Magistrate erred in law and in fact in failing to give reasons why he aligned himself with the 1st Respondent's case as opposed to the Appellant's case.
THAT the Learned Trial Magistrate erred in law and fact in failing to consider and take into account the authorities placed before him touching on the pertinent and substantial points of law and fact so as to arrive at a just and fair decision.
The sole issue for the court to determine is who was to blame for the occurrence of the accident.

APPELLANT’S CASE

The appellant contends that the finding by the learned Honorable magistrate that he contributed to the occurrence of the accident was wrong in law considering the evidence tendered in the lower court.
The appellant maintains that the 2^nd respondent’s motor vehicle rammed into his vehicle from behind thus he could not be faulted for the occurrence of the accident.
The appellants motor vehicle was registration number KAV 315X/Z96367 whereas that of the 2^nd Respondent was motor vehicle Registration No. KCT 940G.
According to the appellant the 1^ST respondent was a passenger in motor vehicle KCT 940G which was owned and controlled by the 2^nd respondent.
In his submission the appellant contends that the 1^st respondent through his testimony was unable to prove how the appellant contributed to the occurrence of the accident.
The appellant has thus urged this court to exercise its jurisdiction in line with the decision in Selle & Another Vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 in which the court held:-

...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..."

The appellant invited this court to find that there were inconsistencies from the evidence of the 1^st respondent and the pleadings.
In the appellants view the evidence adduced by the 1^st respondent was insufficient to enable the courts arrive at a just decision as to who was to blame for the occurrence of the accident.
The accident in this matter occurred on the 9/3/2022 along Kisumu-Kakamega road when the 1^st respondent was traveling as a fare paying passenger in motor vehicle registration number KCT 940G Toyota Hiace Matatu.
The 1^st respondent pleaded at paragraph 5 of the plaint that he defendants driver, servant and or agent drove motor vehicle registration number KCT 940 G so negligently, recklessly and carelessly as a result of which it was involved in a collision with motor vehicle registration number KAV 315 X Lorry that was equally negligently , recklessly and carelessly driven by the driver and or agent of the 2^nd defendant as a result of which the plaintiff suffered serious injuries, loss and damage.”
The appellant urged this court to consider the pleading alongside the evidence adduced by the 1^st respondent through his witness statement of the testimony tendered in court to find that their 2^nd respondent was solely to blame for the accident and absolve them from blame for the accident.
The appellant cited a case of George Kaniaru Kanyutu Vs Francis Muhoho Ngugi [2004] eKLR Civil Suit No. 141 of 2002 where:-

"I have perused the proceedings and have considered the submissions of both counsels. There is no dispute that the Respondent's driver managed and/or controlled the motor vehicle in such a manner that it rammed into the rear of the Appellant's vehicle. I think that in itself is sufficient evidence to determine liability. The accident is not disputed by the respondent's. In fact in his testimony he states ... my motor vehicle got damaged in the front bumper'.
It is well established in law that any driver of motor vehicle should ensure that the distance between his/her motor vehicle and other should be such that, it would enable him/her to control/manage the vehicle in a manner that would prevent a collision from occurring.
I find that the respondent's driver and/ servant/ agent failed in keeping a safe distance between his motor vehicle and the appellant's vehicle such that he was unable to avoid the collision.
Accordingly, I am of the opinion that the respondent is 100% liable for the accident."

The appellant denied contributing to the accident in any manner at all and urged the court to allow his appeal.

1^st RESPONDENT’S CASE

The first respondent filed submissions dated 29 July 2024 which the court has duly considered alongside the submission filed by the appellant.
The first respondent submitted that he gave an account of what transpired at the time of the accident and that according to him both drivers of the motor vehicles involved were to blame for the accident.
The two vehicles were headed the same direction when the accident happened and according to the 1^st respondent the driver of the appellant’s lorry was also to blame for crossing to their lane thereby causing the accident.
In support of his argument the first respondent cited the case of Barclays Stewart Limited & Another Vs. Waiyaki (1982-88) 1KR118 as cited in Hussein Farah vs Lento agencies (2006) eKLR where the court pronounced itself thus:-

"the bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the range rover crushed it.............The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame."

The first respondent further urged this court to find that the law on causation and responsibility for accidents has always been that all road users owe a duty of care to each other as well as other road users and passengers on board. It is on this premise that a party may be held liable for contributory negligence.
In support of that argument the 1^st respondent cited the case of Equator Distributors Vs. Joel Muriu & 3 Others [2018] eKLR in which the court held:-

"...It is not lost that both drivers owed a duty of care to each other and to other road users despite the condition of the road, to drive with care taking into account the state of the road which they appeared not to have done. I will in the circumstances find that this was a case of contributory negligence.

According to the First respondent the court heard the evidence and found both drivers 100 % jointly liable for the accident thus this court should dismiss the appeal.
The 1^st Respondent urged this court to follow the decision of the court in Khambi and Another Vs. Mahithi and Another [1968] EA where the court held:

"It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.

Accordingly the First respondent urged this court find that there is no basis for the court to interfere with the decision of the Learned Honorable Magistrate since apportionment of blame represents an exercise of discretion with which the appellate court will interfere only when it is clearly wrong or based on no evidence or on the application of wrong principle.

ANALYSIS AND DETERMINATION

The court has been invited by the appellant to interfere with the exercise of judicial discretion in apportioning liability by the Learned Honorable Magistrate.
It is trite law that the exercise of judicial discretion is not a matter to be lightly interfered with by an appellate court the principles that guide the court on circumstances under which a court may interfere with judicial discussion are well set out in the case of MBOGO VS. SHAH [1968] E.A at Pg 93 in which DE Lestang VP as he then was stated:-

“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision have been different.
It follows therefore that the appellant in order to succeed in a matter like this must be able to demonstrate clearly that the decision by the trial court was clearly wrong or the court considered matters that it should have considered or simply the court failed to take into account relevant matters in arriving at its decision.
The nature of this case is that the accident involved the motor vehicles that were moving in the same direction.
The circumstance is leading to the occurrence of the accident therefore key and relevant matters for the court to take into account in arriving at the important decision as to who was to blame for their occurrence of the accident.
The evidence of the first responded indicates according to the first respondent both vehicles were to blame for the accident.
The first respondent in examination in chief stated:-

“ The matter to driver did not swerve to avoid the collision the lorry driver was on the wrong side of the road.”

Upon cross- examination the witness stated:-

“ The lorry was from the opposite direction headed to Kisumu . I lost consciousness after the accident. I saw the lorry ahead of us .The drivers seat blocked my vision”

The evidence of the respondent was sharply contradicted by PW2 number 5 9708 PC John Koech who stated:-

“ The accident happened on 9/3/2022 at around 5:30 AM at Girole area along Kisumu -Kakamega Road involving motor vehicle number KCT 940 G Toyota Matatu belonging to Classic Sacco and motor vehicle registration number KAB 315X/ Z936Z trailer circumstances
- both were going the same direction on reaching at the scene Toyota Matatu left from behind the trailer. As a result Passenger on board sustained injuries were rushed to the Vihiga Referral Hospital the motor vehicle to be blamed is the KCT 940 G Nissan Matatu because it failed to keep distance and rammed on to the other motor vehicle from behind.”

The witness went on further to state that he was the investigating officer and he visited the scene and found out that the matatu rammed into the trailer. According to him the matatu was to blame for failing to keep distance.
The evidence of PW2 clearly went against the narrative by the first respondent that this was a head on collision of motor vehicles from different directions .
The driver of the trailer testified as DW1 Rodgers Ouma Odhiambo and he stated:-

“ I was the driver of KAV 315 XZC 6367 Nissan UD .While in Kisumu- Kakamega road, at Givole I was at a moderate speed and the weather was good. I heard a bang from behind. I stopped to see what was happening I found a Nissan Hiace having rammed into my vehicle I decided to help the passenger aboard. I blame the driver of KCT 940 G Toyota Hiace. He hit me from behind.”

Upon cross examination he went on to state:-

“ I blamed the matatu driver. My side mirror was okay. I would not have avoided this. The matatu drive a knew why these took place. I only heard a bang. He hit the trailer on the middle of it. My concentration was on the vehicle ahead of me.”

It is from an analysis of this evidence that the Honorable Magistrate arrived at the decision of that the two drivers were 100% jointly liable for the accident. The appellant’s position is that the decision of the trial court was plainly wrong.
The duty of this court has a first appellate court is to re evaluate the evidence and draw its own conclusion on the same.
The court has undertaken that reevaluation and come to the conclusion that indeed as contended by the appellant the learned Honorable magistrate was plainly wrong in the apportionment of liability between the drivers.
It is quite clear from the evidence that the offending Motor vehicle was the Matatu registration number KCT 940 G. The driver of that vehicle clearly failed to keep distance as required by the law.
The appellant driver could not in the circumstances of this case be blamed for the accident. The 1^st respondent accused the driver of the Matatu of failing to swerve to avoid the accident that seems to have been so because the driver of the trailer stated that he was hit right at the middle from the back of the trailer.
This court therefore finds that there is good ground to interfere with the Magistrate’s decision. The court does not appear to have applied its mind to the whole circumstances of the case thus failing to take into account relevant considerations that would have led it to a different finding.
As a result, this court finds that the appeal on liability has merit and is hereby allowed.
The 2^nd respondent shall therefore bear 100% liability for the accident and as a consequence meet the decretal sum and the costs of this appeal.
It is so ordered.

KISUMU CONCRETE PRODUCTS LIMITED VS Salah Ahmed Ibrahim AND Valentine Lukendo Dibondo

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