REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E166 OF 2024
1. MICHAEL MWANGI
2. FRANCIS MAINA MUCHUGI .........................................APPELLANTS
VERSUS
1. AMERIA MUTHEU MUTUKU (suing as the next of friend
and mother) MADONNA MARY MUSEE
2. ZIPPORAH NZIZA MUTU
3. CHRISTINE KAMENE MBEVI
4. VIRGINIA MUENI MUNYAO
5. ANNAH NDUKU MUIA
6. SANDRA MUTHINI KIMILU
7. MARGARET MUMBUA KYALO
8. MADONNA MARY MUSEE
9. VANESSA NDANU (Minor suing through her next friend) VIRGINIA MUENI MUNYAO
10. JAYDEN MUUO MUSYOKI (Minor suing through his next friend) CHRISTINE KAMENE MBEVI
11. FAITH WATHO WAITA
12. SARITA NDANU (Minor suing through her next friend) SANDRA MUTHINI KIMILU
13. GLORIA MUMO MUTUKU (Minor suing through her next friend) MADONNA MARY MUSEE
14. JANE WANZA MWANIA
15. ALBERT MUSYIMI (minor suing through his
next Friend) VIRGINIA MUENI MUNYAO...................RESPONDENTS
JUDGEMENT
1. The Appellants herein vide the Memorandum of Appeal dated 14th June 2024 have moved this Court challenging the trial court’s Judgement in the Test Suit Case No. CMCC No. E1019/2022 MAVOKO and all subsequent judgements of an even date in CMCC No. E1018, E1021, E1022, E1023, E1024, E1025, E1026, E1027, E1028, E1029, E1030, E1031, E1032 & E1033 all of 2022 delivered on 31th May 2024 at Mavoko Magistrate’s Court by Hon. S. Kandie Resident Magistrate.
2. The Appellants have raised Six (6) grounds of appeal as set out on the face of the said Memorandum of appeal.
3. Brief facts of the matter is that as depicted in the Plaints from pages 7 to 81 of the Record of Appeal at paragraph 6, the Plaintiffs in the said respective suits claimed that on the 24th January 2021 while travelling as fare paying passengers in a public service motor vehicle registration number KDA 669D along Nairobi-Mombasa Road at Syokimau, motor vehicle Registration Number KCD 067Z Isuzu Bus/Coach owned by the Appellants was negligently, recklessly and/or carelessly driven by the Appellant’s authorized driver, servant agent or employee at a high speed and without due regard to other road users that while overtaking it joined the road so carelessly causing the motor vehicle that the Respondents were travelling in to hit it thereby causing a road traffic accident as a result of which the Respondent sustained serious injuries for which they claimed damages. Consequently, the Respondents suffered pain and loss.
4. At paragraph 7 of the Plaints the Respondents solely blamed the Appellants for the occurrence of the said accident and gave the particulars thereof.
5. The Appellants on their part filed their joint Statements of Defence in each case as it appears at pages 82 to 123 of the Record of Appeal wherein at paragraphs 4, 5 & 6 they denied being negligent and liable and instead they attributed the occurrence of the said accident solely to the motor vehicle registration Number KDA 669D that the Respondents were travelling in. They then served notice that they would take-out Third-Party Proceedings against the owners of the said motor vehicle Registration Number KDA 669D which they eventually did. Service of the Third-Party notice was effected but no appearance was entered. The court on being satisfied that service had been properly effected entered default judgement against the Third Parties
6. The matters eventually proceeded for hearing on 8th March 2024 on which date it was agreed by consent that Civil Suit No. E1019 of 2022 does proceed and taken as the Test Suit.
7. PW1- Police Constable Ali from Athi River Traffic Base produced the Police Abstract (PEXt. 5(b) of the accident that took place on 24/01/2021 involving motor vehicle registration Number KDA 669D and KCD 067Z. He however stated that the Investigation Officer was one PC Mwangangi thus his attempt to adduce further evidence on how the accident occurred was objected to by the Appellants Counsel which objection was sustained by the court.
8. PW2- Zipporah Nzisa Mutua, the Plaintiff in the Test Suit in her testimony adopted her statement and stated that on the material date, she was headed to Nairobi aboard motor vehicle KDA 669D and on reaching Syokimau their motor vehicle hit another motor vehicle from the rear. She became, unconscious. On cross examination, she stated that, Motor vehicle registration number KCD 067Z was driven recklessly. On being asked to elaborate on how recklessly the vehicle was being driven, she stated that she did not know how, but KDA 669D hit the other vehicle from the rear. She went on to state that she did not know who to blame for the accident. On further cross examination she confirmed that she had testified in the Traffic Case No. E202 of 2021 at Mavoko Magistrate’s Court where the 1st Appellant was charged with the offence of careless driving. She had stated in the traffic case that the driver of motor vehicle KDA 669D was to blame for the accident.
DW1- Michael Mwangi, the 1st Appellant on his part adopted his statement and stated that on the material date he was driving heading to Nairobi when at Syokimau he saw people crossing the road as a result which he slowed down and at that point motor vehicle KDA 669D hit his vehicle KCD 067Z from behind. He was charged with the offence of careless driving in Traffic case No. E202 of 2021 at Mavoko Magistrate’s Court but was however acquitted for lack of evidence. He maintained that he was neither over speeding nor overtaking and that he blamed the driver of KDA 669D for the accident.
9. DW2- Francis Maina Muchugi, the 2nd Appellant on his part acknowledged that he was the owner of motor vehicle KCD 067Z and that the 1st Appellant was his driver. In reference to the Third-Party proceedings, he stated that Irene Githinji Wambui was the owner of motor vehicle KDA 669D a fact that was evident after she filed SCCC No. E710 of 2023 at Machakos Small Claims Court against the Appellants wherein she was claiming material damages arising from the said accident but which suit she later withdrew.
10. After the evidence of DW2, the Defence closed its defence and trial court at page 261 of the Record of Appeal directed that; -
"Mention on 20/05/2024. Evidence to apply to the series."
11. The trial record shows that on 20/05/2024 both Counsel informed the court that they had filed their respectful submissions after which the court indicated that:-
“Submissions duly noted. Judgement on 28/05/2024. Orders to apply to the series."
12. The judgement in the Test Suit E1019/2022 at Mavoko was eventually delivered on 31st May 2024. At pages 186 paragraph 14 of the said judgement, the Trial court made the following observations: -
"Considering the evidence tendered, the Plaintiff was a passenger and therefore cannot shoulder liability. The driver of motor vehicle Registration Number KDA 669D hit the 1st and 2nd Defendant's motor vehicle from the rear when he slowed down to pave the way for pedestrians. The Plaintiff’s case was that the Defendant was to blame."
13. At paragraph 15 on page 187 the court held thus; -
"On a balance of probability, I find that the Defendant's evidence remains unchallenged by the Third party. The driver of motor vehicle registration Number KDA 669D failed to keep its distance and rammed into the rear of motor vehicle registration Number KCD 967 Z as a result of which the Plaintiff was injured. I therefore find that he was to blame. According to order 1 Rule 15 of the Civil Procedure Order, the 1st and 2nd Defendants shall be indemnified by the Third parties."
14. At paragraph 24 on page 188 the court concluded and stated as follows;
"In the upshoot, I enter judgement for the plaintiff as against the defendants jointly and severally in the following terms:
Liability- -100%
General Damages—Kshs.160,000/=
Special damages Kshs.3,550/-
Total – Kshs.163,550/=.
The Plaintiff is awarded costs and interests of the suit. The defendants pursuant to the third-party notice dated 4.10.23 shall be entitled to a full indemnity to the entire award herein”
15. The Appeal was canvassed through written submissions. Both the Appellants and the Respondents’ Advocates filed and exchanged their respective submissions.
Appellant’s submissions
16. The Appellants submit that in the test suit, the Respondent’s pleadings and testimony before the trial court was that it was the Appellants’ motor vehicle KCD 067Z that was recklessly driven as a result of which recklessness it caused motor vehicle KDA 669D to hit it from the rear. However, during cross examination, she could not tell who between the two vehicles caused the accident. The trial Magistrate in his judgement however exonerated the driver of motor vehicle KCD 067Z from blame and instead blamed the driver of motor vehicle KDA 669D for the accident. Having reached the said conclusion, then the undisputed result would have been that the Respondent had failed to prove any nexus between the occurrence of the accident, the injuries sustained and the role-played by the defendants i.e. acts and/or omissions that were committed by the Appellants. The Appellants therefore submit that in the circumstances, the trial Magistrate was wrong in holding on the one hand that the Appellants were not to blame for the accident and on the other hand hold them 100% liable. Having found the Appellants herein not liable his attempt to sanitize the same by decreeing that the Appellants would be fully indemnified by the Third parties was not proper.
17. The Appellants also submitted that the purpose and effect of a Test Suit is provided for Under Order 38 Rules 1 & 2 of the Civil Procedure Rules which provides that : -
"where two or more persons have instituted suits against the same defendant and such persons Under Rule 1 of Order 1 could have been joined as Co-Plaintiffs in one suits, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a Test case and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues."
18. That it is clear from the law above that the series were only meant to be stayed "Until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.". The trial magistrate therefore erred in law and fact by failing to appreciate that the Respondents in the series had not adduced any evidence and their cases were therefore not proved. The filing of the submissions for the series long after the time the court had granted orders on the Test Suit and without leave confirms that counsel for the Respondents in the said series suddenly realized his mistake and tried to sanitize the process. However, in absence of any evidence by the Respondents in the series on quantum rendered the entire process nugatory and was an exercise in futility.
19. The Appellants urge the Court to refer to the Judiciary Case Tracking System (CTS) to confirm their submissions. In support of the Appellants’ case, they are guided by the case law in HCCC No. 1015/2001-NAIROBI Samuel Kariuki Nyangothi -Versus Johaan Distelberger [2002] eKLR where the court stated at page 1 as follows: -
"The reasons why we have a Test Suit is because the said case would not be an embarrassment to the court and parties where several courts decided on liability arriving at different proportion from that of the first court trying the matter......"
20. The Appellants submit that the trial court only made reference to liability not quantum and the Appellants’ view is that, this is because every Respondent sustained different injuries and for the court to award quantum such evidence was critical. Reliance was placed in the case of Amos Muchiri Ndungu -Vs- Chinga Tea Factory & Another [2010] eKLR which is cited in Machakos High Court Appeal Case No. E049/2021 at paragraph 36 the court held thus: -
"A Test case is a suit brought specifically for the establishment of an important legal right or principle. Test cases save the judicial system time and expenses in conducting proceedings for each and every case that involves the same issue or issues. In my view, the Learned Magistrate was to determine liability in the test case on the basis of the evidence adduced in the said case since the injuries of all the plaintiffs in the series arose from the same accident.”
21. The Appellants agree with the trial magistrate to the extent that the Respondent in the Test Suit as well as the other Respondents for that matter in the series having been passengers in motor vehicle KDA 669D could not in the absence of evidence to the contrary have contributed to the vehicle they were in hitting motor vehicle KCD 067Z from the rear. The trial court's duty was then to address the issue of whether the driver of motor vehicle KCD 067Z contributed to the occurrence of the accident and to what extent. Put in legal terms, whether the Appellants and the Third Parties were Concurrent or joint or Co-tortfeasors and if so to what extent or role the Third Parties had participated after which the Third Parties would then be held liable to indemnity the Appellants.
22. The Appellants further submit that the trial court having made a finding that the Appellants were not at all to blame for the accident, then it goes without saying that the Appellants had not committed a tortious act. The Respondent in the test suit blamed the occurrence of the accident wholly on the driver of the motor vehicle she was travelling in (KDA 669D). Unfortunately, they had failed to sue the driver and/or the owner of the said vehicle. They cannot turn to the Appellants for execution because of their failure to join the concerned parties. The Third Parties were the Principal Tortfeasors and since the Appellants were exonerated from blame the suits against them ought to have been dismissed with the only remedy of the Respondents recovering from the Third Parties .Reference was made to the decision in Kisii Civil Appeal No. E098 of 2022 between Patricia Karani Ogando-Vs- Watu Credit Ltd & Ano, The court at paragraph 10 cited the case of Daniel Otieno Migore -Vs- South Nyanza Sultar Co. Ltd [2018] eKLR where the court held thus; -
"It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must align with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded...."
23. The Appellants turning to the suit before the trial court and according to the Respondent and indeed to the Respondents’ proceedings in the series, submit that it was the Appellants’ motor vehicle that was being driven in a reckless manner as a consequence of which it caused the vehicle the Respondent were travelling in to hit it (KCD 067Z) from the rear. However, the Respondent at one time stated in court that she fell unconscious after the accident and she could not tell who was to blame for the accident. Nothing stopped her from calling any of the other Plaintiffs in the series as her witness who could be able to explain to the court how the accident occurred.
24. The Appellants submit that the Respondent’s evidence in the trial court was at variance with her pleadings. On the other hand, apart from stating that she was adopting her written statement, she did not take the court through the injuries she alleged to have sustained nor the special damages she suffered and literally threw the treatment notes, the medical reports without calling the makers of the same in support of the claim for damages for injuries sustained. Similarly, the Respondent did not take the court through the receipts of the expenses incurred and therefore special damages were never proved. Therefore, the Appellants submit that there was no evidence tendered in court pursuant to which evidence the court could have assessed the quantum payable to the Respondent in the test suit and in any event as aforesaid, the Appellant having been found not liable for the accident, no award in terms of damages could have been entered against them.
25. The Appellants argue that the matters in the series were not consolidated hence the correct procedure would have been that once the issue of liability was determined in the test suit, then each of the other matters in the series would have been placed for hearing on the issue of the commensurate quantum of damages for each of the Respondents. This means each of the Respondents required to be called and heard on the nature of the injuries he/she sustained and the expenses he/she incurred. It is therefore the Appellants’ submissions that the Respondent having failed to prove that the Appellants were to blame for the occurrence of the said accident and the court having rightly held that it was the driver of motor vehicle KDA 669D that was to blame, then the court erred when it proceeded to enter judgment both on a non-existing liability on the part of the Appellants and on unproved quantum for damages in the series.
26. The Appellants emphasize that the trial magistrate erred and misdirected himself when he went ahead and entertained the Respondents written submissions without the court having specifically directed that the same be filed in the series and in any event no evidence had been tendered in those other matters on the issue of quantum and in any case the said submissions were filed out of time and without the court's leave. This prejudiced the Appellants herein since the court had already set a judgement date. Both parties were required to have filed their submissions by 20th May 2024 when the matter was mentioned to confirm compliance. The Respondents' subsequent submissions were an ambush to the Appellants and the court ought not to have entertained them.
27. The Appellants submit that in a surprising turn of events, it dawned on the Appellants that the Respondents counsel had on the eve to the delivery of the said judgement in the Test Suit, additionally filed written submissions both on liability and quantum in all the other matters in the series and more surprisingly the trial court went ahead to deliver judgements both on liability and quantum in all the other matter in the series despite the above anomaly.
28. In conclusion the Appellants submit that the appeal herein has merit and should be allowed as prayed and in particular that the judgements in the series files of the lower court be set aside as quantum was never proved. Further since the trial magistrate found that the Appellants were entitled to a full indemnity to the entire award then this court do direct that the judgements entered in favour of Respondents as against the Appellants jointly and severally be directed to the Third Parties and that execution if any to issue against them and not the Appellants who were exonerated from blame.
Respondents’ Submissions
29. The Respondent submitted that the matter proceeded for trial and based on the evidence on record, judgment was delivered. In his Judgment, the trial court found the Defendants/Appellants 100% jointly liable for the said accident and directed that they be indemnified by the third party. The suit did not contain any cause of action against the third party therefore; the third party could only be called upon to indemnify the appellants for any judgment entered against them. Reliance was place in the decision by Justice Thuranira J in the case of City Hoppa limited Vs Harrison Kamau Karabi & 2 others (2021) eKLR which affirmed the position in the case of Sammy Ngigi Mwaura Vs John Mbugua Kagai & Anor (2006) eKLR where the High Court observed as follows;
"The Third Party has not been directly sued on its own right and has only been brought in by the defendant for indemnity should he be found liable. As against the plaintiff, there being no suit between them, I would also find him not liable for purposes of this suit. His liability in this suit would only be through the Defendant and to the defendant in indemnity. The suit is dismissed with costs."
On appeal, the Court of Appeal upheld the decision and stated;
"We have no hesitation in deciding that the learned Judge was entirely correct in her decision as to the lack of any liability resting upon the Third Party in view of the state of the pleadings... in our view, it should be noted that the three sub paragraphs (a), (b) and (c) or Order 1 Rule 14 (1) are each in the alternative and that the only alternative chosen to be relied upon by the Defendant/Respondent in his Third Party Notice was a claim for indemnity or contribution to any Judgment that may be entered in favour of the plaintiff in respect of the plaintiff's claim as is set in the plaint."
30. That Justice G.L. Nzioka J, in the case of ASC Metal Belgium Vs Blue Nile (East Africa) Limited & 2 Others affirmed the position in the case of Kenya Commercial Bank Vs Suntra Investment Bank Ltd (2015) eKLR, where the High court observed as follows;
"In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 Rule 15-22 of the Civil Procedure Rules and liability between the Defendant and third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the defendant and has given directions under Order 1 Rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues triable between the Defendant and the plaintiff. On the basis of those legal reasons, even if the third party has been joined, which he has not, it is not a triable issue at all for purposes of liability between the plaintiff and the defendant...."
31. It is therefore the Respondents’ submission that the trial court did not error in finding the Appellants 100% liable for the accident and directing that the Appellants be indemnified by the 3rd party.
32. The Respondents submit that the Appeal lacks merit and that the same ought to be dismissed in its entirety with costs to the Respondents together with interest at the Court's rates from the date of judgment.
Analysis and Determination
33. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.
34. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -
“A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
35. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.
36. I have carefully perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; the said appeal challenges both liability and quantum and this calls upon me to determine whether the trial court’s finding on liability and quantum should be disturbed on this appeal.
Liability
37. The Appellants fault the trial magistrate for holding on the one hand that the Appellants were not to blame for the accident and on the other hand holding them 100% liable. Having found the Appellants herein not liable his attempt to sanitize the same by decreeing that the Appellants would be fully indemnified by the Third parties was not proper.
38. It is trite law that the cornerstone of tortious liability is proof of negligence. The burden of that proof rests, immovably and unequivocally, upon the shoulders of the Plaintiff. As the Court so eloquently stated in Jamal Ramadhan Yusuf & Another v Ruth Achieug Onditi & Another [2010] eKLR that:
"The mere occurrence of an accident does not raise a presumption of negligence. He who asserts must prove."
39. It is to be noted that Third-Party Proceedings were taken out by the Appellants against the owners of motor vehicle Registration No. KDA 669D who despite service of the Third Party Notice, failed to enter appearance and file a defence. The court on being satisfied that service had been properly effected upon the Third Party, entered default judgement against the Third Party, IRENE GITHINJI NYAMBURA.
40. A cursory perusal at the trial court’s proceedings reveals that the evidence touching on liability in this case is that of PW2 and DW1.
PW2-Zipporah Nziza Mutua, the Plaintiff (2nd Respondent herein). she was headed to Nairobi aboard motor vehicle KDA 669D and on reaching Syokimau their motor vehicle hit another motor vehicle from the rear. She became, unconscious. On cross examination, she stated that, Motor vehicle registration number KCD 067Z was driven recklessly. On being asked to elaborate on how recklessly the vehicle was being driven, she stated that she did not know how, but KDA 669D hit the other vehicle from the rear. She went on to state that she did not know who to blame for the accident. On further cross examination she confirmed that she had testified in the Traffic Case No. E202 of 2021 at Mavoko Magistrate’s Court where the 1st Appellant was charged with the offence of careless driving. She had stated in the traffic case that the driver of motor vehicle KDA 669D was to blame for the accident.
41. DW1- Michael Mwangi, the 1st Appellant on his part adopted his statement and stated that on the material date he was driving heading to Nairobi when at Syokimau he saw people crossing the road as a result which he slowed down and at that point motor vehicle KDA 669D hit his vehicle KCD 067Z from behind.
42. What I gather from the evidence of the above two witnesses is that motor vehicle registration No. KDA 669D owned by the Third Parties hit the Appellants motor vehicle registration No. KCD 067Z from behind. It is well established law that any driver of motor vehicle should ensure that the distance between his/her motor vehicle and any other ahead of him should be such that, it would enable him/her to control/manage the vehicle in a manner that would prevent a collision from occurring.
43. On the foregoing, I agree with the trial court’s finding that considering the evidence tendered, the 2nd Respondent was a mere passenger and therefore cannot shoulder liability. The driver of motor vehicle Registration Number KDA 669D hit the Appellant's motor vehicle from the rear when he slowed down to pave the way for pedestrians.
44. I also agree with the trial court’s finding that on a balance of probability, the Appellants’ evidence remained unchallenged by the Third Party. The driver of motor vehicle registration Number KDA 669D failed to keep its distance and rammed into the rear of motor vehicle registration Number KCD 967Z as a result of which the 2nd Respondent was injured. I therefore find that he was to blame.
45. The trial court having found the driver of the Third Party to blame for the accident and having already entered default judgement against the Third Party, this court finds that it was wrong for the trial court to again hold the Appellants 100% liable and decreeing that the Appellants would be fully indemnified by the Third parties. The trial court could not have exonerated the Appellants from blame in occurrence of the accident and at the same time blame them for the same.
46. Accordingly, this court is constrained to disturb the trial court’s finding on liability and proceed therefore to affirm the unchallenged default judgement against the Third Party who is held 100% vicariously liable for the negligence of her driver, agent and or servant who was driving motor vehicle registration KDA 669D at the time of the accident herein.
47. The Appellants having been found not to be liable for the accident herein, Order 1 Rule 15 of the Civil Procedure Order could not have been applied to them in the circumsta
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E166 OF 2024
1. MICHAEL MWANGI
2. FRANCIS MAINA MUCHUGI .........................................APPELLANTS
VERSUS
1. AMERIA MUTHEU MUTUKU (suing as the next of friend
and mother) MADONNA MARY MUSEE
2. ZIPPORAH NZIZA MUTU
3. CHRISTINE KAMENE MBEVI
4. VIRGINIA MUENI MUNYAO
5. ANNAH NDUKU MUIA
6. SANDRA MUTHINI KIMILU
7. MARGARET MUMBUA KYALO
8. MADONNA MARY MUSEE
9. VANESSA NDANU (Minor suing through her next friend) VIRGINIA MUENI MUNYAO
10. JAYDEN MUUO MUSYOKI (Minor suing through his next friend) CHRISTINE KAMENE MBEVI
11. FAITH WATHO WAITA
12. SARITA NDANU (Minor suing through her next friend) SANDRA MUTHINI KIMILU
13. GLORIA MUMO MUTUKU (Minor suing through her next friend) MADONNA MARY MUSEE
14. JANE WANZA MWANIA
15. ALBERT MUSYIMI (minor suing through his
next Friend) VIRGINIA MUENI MUNYAO...................RESPONDENTS
JUDGEMENT
1. The Appellants herein vide the Memorandum of Appeal dated 14th June 2024 have moved this Court challenging the trial court’s Judgement in the Test Suit Case No. CMCC No. E1019/2022 MAVOKO and all subsequent judgements of an even date in CMCC No. E1018, E1021, E1022, E1023, E1024, E1025, E1026, E1027, E1028, E1029, E1030, E1031, E1032 & E1033 all of 2022 delivered on 31th May 2024 at Mavoko Magistrate’s Court by Hon. S. Kandie Resident Magistrate.
2. The Appellants have raised Six (6) grounds of appeal as set out on the face of the said Memorandum of appeal.
3. Brief facts of the matter is that as depicted in the Plaints from pages 7 to 81 of the Record of Appeal at paragraph 6, the Plaintiffs in the said respective suits claimed that on the 24th January 2021 while travelling as fare paying passengers in a public service motor vehicle registration number KDA 669D along Nairobi-Mombasa Road at Syokimau, motor vehicle Registration Number KCD 067Z Isuzu Bus/Coach owned by the Appellants was negligently, recklessly and/or carelessly driven by the Appellant’s authorized driver, servant agent or employee at a high speed and without due regard to other road users that while overtaking it joined the road so carelessly causing the motor vehicle that the Respondents were travelling in to hit it thereby causing a road traffic accident as a result of which the Respondent sustained serious injuries for which they claimed damages. Consequently, the Respondents suffered pain and loss.
4. At paragraph 7 of the Plaints the Respondents solely blamed the Appellants for the occurrence of the said accident and gave the particulars thereof.
5. The Appellants on their part filed their joint Statements of Defence in each case as it appears at pages 82 to 123 of the Record of Appeal wherein at paragraphs 4, 5 & 6 they denied being negligent and liable and instead they attributed the occurrence of the said accident solely to the motor vehicle registration Number KDA 669D that the Respondents were travelling in. They then served notice that they would take-out Third-Party Proceedings against the owners of the said motor vehicle Registration Number KDA 669D which they eventually did. Service of the Third-Party notice was effected but no appearance was entered. The court on being satisfied that service had been properly effected entered default judgement against the Third Parties
6. The matters eventually proceeded for hearing on 8th March 2024 on which date it was agreed by consent that Civil Suit No. E1019 of 2022 does proceed and taken as the Test Suit.
7. PW1- Police Constable Ali from Athi River Traffic Base produced the Police Abstract (PEXt. 5(b) of the accident that took place on 24/01/2021 involving motor vehicle registration Number KDA 669D and KCD 067Z. He however stated that the Investigation Officer was one PC Mwangangi thus his attempt to adduce further evidence on how the accident occurred was objected to by the Appellants Counsel which objection was sustained by the court.
8. PW2- Zipporah Nzisa Mutua, the Plaintiff in the Test Suit in her testimony adopted her statement and stated that on the material date, she was headed to Nairobi aboard motor vehicle KDA 669D and on reaching Syokimau their motor vehicle hit another motor vehicle from the rear. She became, unconscious. On cross examination, she stated that, Motor vehicle registration number KCD 067Z was driven recklessly. On being asked to elaborate on how recklessly the vehicle was being driven, she stated that she did not know how, but KDA 669D hit the other vehicle from the rear. She went on to state that she did not know who to blame for the accident. On further cross examination she confirmed that she had testified in the Traffic Case No. E202 of 2021 at Mavoko Magistrate’s Court where the 1st Appellant was charged with the offence of careless driving. She had stated in the traffic case that the driver of motor vehicle KDA 669D was to blame for the accident.
DW1- Michael Mwangi, the 1st Appellant on his part adopted his statement and stated that on the material date he was driving heading to Nairobi when at Syokimau he saw people crossing the road as a result which he slowed down and at that point motor vehicle KDA 669D hit his vehicle KCD 067Z from behind. He was charged with the offence of careless driving in Traffic case No. E202 of 2021 at Mavoko Magistrate’s Court but was however acquitted for lack of evidence. He maintained that he was neither over speeding nor overtaking and that he blamed the driver of KDA 669D for the accident.
9. DW2- Francis Maina Muchugi, the 2nd Appellant on his part acknowledged that he was the owner of motor vehicle KCD 067Z and that the 1st Appellant was his driver. In reference to the Third-Party proceedings, he stated that Irene Githinji Wambui was the owner of motor vehicle KDA 669D a fact that was evident after she filed SCCC No. E710 of 2023 at Machakos Small Claims Court against the Appellants wherein she was claiming material damages arising from the said accident but which suit she later withdrew.
10. After the evidence of DW2, the Defence closed its defence and trial court at page 261 of the Record of Appeal directed that; -
"Mention on 20/05/2024. Evidence to apply to the series."
11. The trial record shows that on 20/05/2024 both Counsel informed the court that they had filed their respectful submissions after which the court indicated that:-
“Submissions duly noted. Judgement on 28/05/2024. Orders to apply to the series."
12. The judgement in the Test Suit E1019/2022 at Mavoko was eventually delivered on 31st May 2024. At pages 186 paragraph 14 of the said judgement, the Trial court made the following observations: -
"Considering the evidence tendered, the Plaintiff was a passenger and therefore cannot shoulder liability. The driver of motor vehicle Registration Number KDA 669D hit the 1st and 2nd Defendant's motor vehicle from the rear when he slowed down to pave the way for pedestrians. The Plaintiff’s case was that the Defendant was to blame."
13. At paragraph 15 on page 187 the court held thus; -
"On a balance of probability, I find that the Defendant's evidence remains unchallenged by the Third party. The driver of motor vehicle registration Number KDA 669D failed to keep its distance and rammed into the rear of motor vehicle registration Number KCD 967 Z as a result of which the Plaintiff was injured. I therefore find that he was to blame. According to order 1 Rule 15 of the Civil Procedure Order, the 1st and 2nd Defendants shall be indemnified by the Third parties."
14. At paragraph 24 on page 188 the court concluded and stated as follows;
"In the upshoot, I enter judgement for the plaintiff as against the defendants jointly and severally in the following terms:
Liability- -100%
General Damages—Kshs.160,000/=
Special damages Kshs.3,550/-
Total – Kshs.163,550/=.
The Plaintiff is awarded costs and interests of the suit. The defendants pursuant to the third-party notice dated 4.10.23 shall be entitled to a full indemnity to the entire award herein”
15. The Appeal was canvassed through written submissions. Both the Appellants and the Respondents’ Advocates filed and exchanged their respective submissions.
Appellant’s submissions
16. The Appellants submit that in the test suit, the Respondent’s pleadings and testimony before the trial court was that it was the Appellants’ motor vehicle KCD 067Z that was recklessly driven as a result of which recklessness it caused motor vehicle KDA 669D to hit it from the rear. However, during cross examination, she could not tell who between the two vehicles caused the accident. The trial Magistrate in his judgement however exonerated the driver of motor vehicle KCD 067Z from blame and instead blamed the driver of motor vehicle KDA 669D for the accident. Having reached the said conclusion, then the undisputed result would have been that the Respondent had failed to prove any nexus between the occurrence of the accident, the injuries sustained and the role-played by the defendants i.e. acts and/or omissions that were committed by the Appellants. The Appellants therefore submit that in the circumstances, the trial Magistrate was wrong in holding on the one hand that the Appellants were not to blame for the accident and on the other hand hold them 100% liable. Having found the Appellants herein not liable his attempt to sanitize the same by decreeing that the Appellants would be fully indemnified by the Third parties was not proper.
17. The Appellants also submitted that the purpose and effect of a Test Suit is provided for Under Order 38 Rules 1 & 2 of the Civil Procedure Rules which provides that : -
"where two or more persons have instituted suits against the same defendant and such persons Under Rule 1 of Order 1 could have been joined as Co-Plaintiffs in one suits, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a Test case and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues."
18. That it is clear from the law above that the series were only meant to be stayed "Until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.". The trial magistrate therefore erred in law and fact by failing to appreciate that the Respondents in the series had not adduced any evidence and their cases were therefore not proved. The filing of the submissions for the series long after the time the court had granted orders on the Test Suit and without leave confirms that counsel for the Respondents in the said series suddenly realized his mistake and tried to sanitize the process. However, in absence of any evidence by the Respondents in the series on quantum rendered the entire process nugatory and was an exercise in futility.
19. The Appellants urge the Court to refer to the Judiciary Case Tracking System (CTS) to confirm their submissions. In support of the Appellants’ case, they are guided by the case law in HCCC No. 1015/2001-NAIROBI Samuel Kariuki Nyangothi -Versus Johaan Distelberger [2002] eKLR where the court stated at page 1 as follows: -
"The reasons why we have a Test Suit is because the said case would not be an embarrassment to the court and parties where several courts decided on liability arriving at different proportion from that of the first court trying the matter......"
20. The Appellants submit that the trial court only made reference to liability not quantum and the Appellants’ view is that, this is because every Respondent sustained different injuries and for the court to award quantum such evidence was critical. Reliance was placed in the case of Amos Muchiri Ndungu -Vs- Chinga Tea Factory & Another [2010] eKLR which is cited in Machakos High Court Appeal Case No. E049/2021 at paragraph 36 the court held thus: -
"A Test case is a suit brought specifically for the establishment of an important legal right or principle. Test cases save the judicial system time and expenses in conducting proceedings for each and every case that involves the same issue or issues. In my view, the Learned Magistrate was to determine liability in the test case on the basis of the evidence adduced in the said case since the injuries of all the plaintiffs in the series arose from the same accident.”
21. The Appellants agree with the trial magistrate to the extent that the Respondent in the Test Suit as well as the other Respondents for that matter in the series having been passengers in motor vehicle KDA 669D could not in the absence of evidence to the contrary have contributed to the vehicle they were in hitting motor vehicle KCD 067Z from the rear. The trial court's duty was then to address the issue of whether the driver of motor vehicle KCD 067Z contributed to the occurrence of the accident and to what extent. Put in legal terms, whether the Appellants and the Third Parties were Concurrent or joint or Co-tortfeasors and if so to what extent or role the Third Parties had participated after which the Third Parties would then be held liable to indemnity the Appellants.
22. The Appellants further submit that the trial court having made a finding that the Appellants were not at all to blame for the accident, then it goes without saying that the Appellants had not committed a tortious act. The Respondent in the test suit blamed the occurrence of the accident wholly on the driver of the motor vehicle she was travelling in (KDA 669D). Unfortunately, they had failed to sue the driver and/or the owner of the said vehicle. They cannot turn to the Appellants for execution because of their failure to join the concerned parties. The Third Parties were the Principal Tortfeasors and since the Appellants were exonerated from blame the suits against them ought to have been dismissed with the only remedy of the Respondents recovering from the Third Parties .Reference was made to the decision in Kisii Civil Appeal No. E098 of 2022 between Patricia Karani Ogando-Vs- Watu Credit Ltd & Ano, The court at paragraph 10 cited the case of Daniel Otieno Migore -Vs- South Nyanza Sultar Co. Ltd [2018] eKLR where the court held thus; -
"It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must align with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded...."
23. The Appellants turning to the suit before the trial court and according to the Respondent and indeed to the Respondents’ proceedings in the series, submit that it was the Appellants’ motor vehicle that was being driven in a reckless manner as a consequence of which it caused the vehicle the Respondent were travelling in to hit it (KCD 067Z) from the rear. However, the Respondent at one time stated in court that she fell unconscious after the accident and she could not tell who was to blame for the accident. Nothing stopped her from calling any of the other Plaintiffs in the series as her witness who could be able to explain to the court how the accident occurred.
24. The Appellants submit that the Respondent’s evidence in the trial court was at variance with her pleadings. On the other hand, apart from stating that she was adopting her written statement, she did not take the court through the injuries she alleged to have sustained nor the special damages she suffered and literally threw the treatment notes, the medical reports without calling the makers of the same in support of the claim for damages for injuries sustained. Similarly, the Respondent did not take the court through the receipts of the expenses incurred and therefore special damages were never proved. Therefore, the Appellants submit that there was no evidence tendered in court pursuant to which evidence the court could have assessed the quantum payable to the Respondent in the test suit and in any event as aforesaid, the Appellant having been found not liable for the accident, no award in terms of damages could have been entered against them.
25. The Appellants argue that the matters in the series were not consolidated hence the correct procedure would have been that once the issue of liability was determined in the test suit, then each of the other matters in the series would have been placed for hearing on the issue of the commensurate quantum of damages for each of the Respondents. This means each of the Respondents required to be called and heard on the nature of the injuries he/she sustained and the expenses he/she incurred. It is therefore the Appellants’ submissions that the Respondent having failed to prove that the Appellants were to blame for the occurrence of the said accident and the court having rightly held that it was the driver of motor vehicle KDA 669D that was to blame, then the court erred when it proceeded to enter judgment both on a non-existing liability on the part of the Appellants and on unproved quantum for damages in the series.
26. The Appellants emphasize that the trial magistrate erred and misdirected himself when he went ahead and entertained the Respondents written submissions without the court having specifically directed that the same be filed in the series and in any event no evidence had been tendered in those other matters on the issue of quantum and in any case the said submissions were filed out of time and without the court's leave. This prejudiced the Appellants herein since the court had already set a judgement date. Both parties were required to have filed their submissions by 20th May 2024 when the matter was mentioned to confirm compliance. The Respondents' subsequent submissions were an ambush to the Appellants and the court ought not to have entertained them.
27. The Appellants submit that in a surprising turn of events, it dawned on the Appellants that the Respondents counsel had on the eve to the delivery of the said judgement in the Test Suit, additionally filed written submissions both on liability and quantum in all the other matters in the series and more surprisingly the trial court went ahead to deliver judgements both on liability and quantum in all the other matter in the series despite the above anomaly.
28. In conclusion the Appellants submit that the appeal herein has merit and should be allowed as prayed and in particular that the judgements in the series files of the lower court be set aside as quantum was never proved. Further since the trial magistrate found that the Appellants were entitled to a full indemnity to the entire award then this court do direct that the judgements entered in favour of Respondents as against the Appellants jointly and severally be directed to the Third Parties and that execution if any to issue against them and not the Appellants who were exonerated from blame.
Respondents’ Submissions
29. The Respondent submitted that the matter proceeded for trial and based on the evidence on record, judgment was delivered. In his Judgment, the trial court found the Defendants/Appellants 100% jointly liable for the said accident and directed that they be indemnified by the third party. The suit did not contain any cause of action against the third party therefore; the third party could only be called upon to indemnify the appellants for any judgment entered against them. Reliance was place in the decision by Justice Thuranira J in the case of City Hoppa limited Vs Harrison Kamau Karabi & 2 others (2021) eKLR which affirmed the position in the case of Sammy Ngigi Mwaura Vs John Mbugua Kagai & Anor (2006) eKLR where the High Court observed as follows;
"The Third Party has not been directly sued on its own right and has only been brought in by the defendant for indemnity should he be found liable. As against the plaintiff, there being no suit between them, I would also find him not liable for purposes of this suit. His liability in this suit would only be through the Defendant and to the defendant in indemnity. The suit is dismissed with costs."
On appeal, the Court of Appeal upheld the decision and stated;
"We have no hesitation in deciding that the learned Judge was entirely correct in her decision as to the lack of any liability resting upon the Third Party in view of the state of the pleadings... in our view, it should be noted that the three sub paragraphs (a), (b) and (c) or Order 1 Rule 14 (1) are each in the alternative and that the only alternative chosen to be relied upon by the Defendant/Respondent in his Third Party Notice was a claim for indemnity or contribution to any Judgment that may be entered in favour of the plaintiff in respect of the plaintiff's claim as is set in the plaint."
30. That Justice G.L. Nzioka J, in the case of ASC Metal Belgium Vs Blue Nile (East Africa) Limited & 2 Others affirmed the position in the case of Kenya Commercial Bank Vs Suntra Investment Bank Ltd (2015) eKLR, where the High court observed as follows;
"In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 Rule 15-22 of the Civil Procedure Rules and liability between the Defendant and third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the defendant and has given directions under Order 1 Rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues triable between the Defendant and the plaintiff. On the basis of those legal reasons, even if the third party has been joined, which he has not, it is not a triable issue at all for purposes of liability between the plaintiff and the defendant...."
31. It is therefore the Respondents’ submission that the trial court did not error in finding the Appellants 100% liable for the accident and directing that the Appellants be indemnified by the 3rd party.
32. The Respondents submit that the Appeal lacks merit and that the same ought to be dismissed in its entirety with costs to the Respondents together with interest at the Court's rates from the date of judgment.
Analysis and Determination
33. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.
34. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -
“A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
35. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.
36. I have carefully perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; the said appeal challenges both liability and quantum and this calls upon me to determine whether the trial court’s finding on liability and quantum should be disturbed on this appeal.
Liability
37. The Appellants fault the trial magistrate for holding on the one hand that the Appellants were not to blame for the accident and on the other hand holding them 100% liable. Having found the Appellants herein not liable his attempt to sanitize the same by decreeing that the Appellants would be fully indemnified by the Third parties was not proper.
38. It is trite law that the cornerstone of tortious liability is proof of negligence. The burden of that proof rests, immovably and unequivocally, upon the shoulders of the Plaintiff. As the Court so eloquently stated in Jamal Ramadhan Yusuf & Another v Ruth Achieug Onditi & Another [2010] eKLR that:
"The mere occurrence of an accident does not raise a presumption of negligence. He who asserts must prove."
39. It is to be noted that Third-Party Proceedings were taken out by the Appellants against the owners of motor vehicle Registration No. KDA 669D who despite service of the Third Party Notice, failed to enter appearance and file a defence. The court on being satisfied that service had been properly effected upon the Third Party, entered default judgement against the Third Party, IRENE GITHINJI NYAMBURA.
40. A cursory perusal at the trial court’s proceedings reveals that the evidence touching on liability in this case is that of PW2 and DW1.
PW2-Zipporah Nziza Mutua, the Plaintiff (2nd Respondent herein). she was headed to Nairobi aboard motor vehicle KDA 669D and on reaching Syokimau their motor vehicle hit another motor vehicle from the rear. She became, unconscious. On cross examination, she stated that, Motor vehicle registration number KCD 067Z was driven recklessly. On being asked to elaborate on how recklessly the vehicle was being driven, she stated that she did not know how, but KDA 669D hit the other vehicle from the rear. She went on to state that she did not know who to blame for the accident. On further cross examination she confirmed that she had testified in the Traffic Case No. E202 of 2021 at Mavoko Magistrate’s Court where the 1st Appellant was charged with the offence of careless driving. She had stated in the traffic case that the driver of motor vehicle KDA 669D was to blame for the accident.
41. DW1- Michael Mwangi, the 1st Appellant on his part adopted his statement and stated that on the material date he was driving heading to Nairobi when at Syokimau he saw people crossing the road as a result which he slowed down and at that point motor vehicle KDA 669D hit his vehicle KCD 067Z from behind.
42. What I gather from the evidence of the above two witnesses is that motor vehicle registration No. KDA 669D owned by the Third Parties hit the Appellants motor vehicle registration No. KCD 067Z from behind. It is well established law that any driver of motor vehicle should ensure that the distance between his/her motor vehicle and any other ahead of him should be such that, it would enable him/her to control/manage the vehicle in a manner that would prevent a collision from occurring.
43. On the foregoing, I agree with the trial court’s finding that considering the evidence tendered, the 2nd Respondent was a mere passenger and therefore cannot shoulder liability. The driver of motor vehicle Registration Number KDA 669D hit the Appellant's motor vehicle from the rear when he slowed down to pave the way for pedestrians.
44. I also agree with the trial court’s finding that on a balance of probability, the Appellants’ evidence remained unchallenged by the Third Party. The driver of motor vehicle registration Number KDA 669D failed to keep its distance and rammed into the rear of motor vehicle registration Number KCD 967Z as a result of which the 2nd Respondent was injured. I therefore find that he was to blame.
45. The trial court having found the driver of the Third Party to blame for the accident and having already entered default judgement against the Third Party, this court finds that it was wrong for the trial court to again hold the Appellants 100% liable and decreeing that the Appellants would be fully indemnified by the Third parties. The trial court could not have exonerated the Appellants from blame in occurrence of the accident and at the same time blame them for the same.
46. Accordingly, this court is constrained to disturb the trial court’s finding on liability and proceed therefore to affirm the unchallenged default judgement against the Third Party who is held 100% vicariously liable for the negligence of her driver, agent and or servant who was driving motor vehicle registration KDA 669D at the time of the accident herein.
47. The Appellants having been found not to be liable for the accident herein, Order 1 Rule 15 of the Civil Procedure Order could not have been applied to them in the circumsta
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