REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E097 OF 2023
RENTWORKS EAST AFRICA LIMITED ……………………APPELLANT
VERSUS
TITUS MUTINDA MBOLU ……………………………..1 ST RESPONDENT
THE ATTORNEY GENERAL …………………………2 ND RESPONDENT
JUDGMENT
(1) According to the pleadings and evidence Titus Mutinda Mbolu was arrested on 27/6/2018 and on 28/6/2018 was a passenger in motor vehicle registration GKB 1104 under escort of Police Officers from Mtito Andei police station escorting him to Court.. It is his case that the motor vehicle driver at a speed, carelessly and negligently that the motor vehicle lost control, veered off the road and violently overturned whereas the plaintiff sustained severe personal injuries, loss and damage.
He filed suit –
Makindu MCCC 369/2019 where set out the particulars of negligence against the driver and that he would rely on the doctrines of res ipsa loquitur.
He set down the particulars of injuries:-
- Large cut on the left side of the head; soft tissue injuries on the chest and left shoulder.
- At the time of filing the suit he complained of chest and lower back pain, difficulty hearing on left ear, difficulty in doing manual jobs.
He set out special damages –
Medical report – at Kshs 3000/=
Copy of records – at Kshs 550/=
Treatment and medical expenses – at Kshs 780/=
4330
The plaintiff sought Judgment jointly and severally against the defendants who were Rentworks East Africa Limited and the Hon Attorney General -
1) Special damages – Ksh 4330
2) General Damages for pain suffering and loss of amenities.
3) Costs of the suit
4) Interest on 1, 2, 3 at court rates.
(2) The 1 st defendant filed a defence on 7/1/2020and denied being the registered owner of motor vehicle registration No. GKB 110H and that the motor vehicle was being driven by its employee, agent and or authorized officer, and put the plaintiff to strict proof.
(3) The 1 st defendant did not dispute that the accident happened but denied the allegation of the negligence. The 1 st defendant denied that plaintiff was a passenger in the said motor vehicle and put the plaintiff to strict proof thereof.
The 1 st defendant accused the plaintiff of negligence for failing to wear safety belt while in the motor vehicle, failing to observe traffic rules – defendant stated that it would rely on the doctrine of volenti non fit injuria. The 1 st defendant also denied the particulars of injuries, loss and damage put the plaintiff to strict proof thereof.
The 1 st defendant urged the plaintiff’s case be dismissed with costs .and interest.
(4) The 2 nd defendant filed defence on 27/1/2020. The 2 nd defendant denied everything since the descriptive parts of the plaint.
In the alternative and w/o prejudice the 2 nd defendant averred that if an accident occurred as alleged it was denied – but the 2 nd defendant solely caused/substantially contributed to the to the accident .
The 2 nd defendant set out its accusations of negligence. That the plaintiff was travelling in GKB 110H as unauthorized passenger, failed to fasten his safety belt while a passenger in the GKB 110H; deliberately exposing himself to danger, causing the accident.
The 2 nd defendant put the plaintiff to strict proof to all the claim and sought that the suit be dismissed with costs.
(5) The Plaintiff replied to the defences and joined issues appropriately and put the defendant to strict proof of the allegations against him.
(6) The Hearing
- The matter was heard by the Hon. E. Mbicha, PM. Pw1 was No. 78253 Sergeant Benson Muema Muendo. He said the accident involved police motor vehicle GKB 110H along Nairobi/Mombasa Highway at China Site area on 28/6/2019 at 8:30 a.m. He said the motor vehicle was driven by No. 54525 PC Driver Philip Njenga and on board were police officers escorting prisoners – that among the injured was Mutinda Mbolu – who was listed as No. 7 in the OB.
He produced the police abstract issued from Makindu police statement.
In cross-examination he said that the accident was as a result of a tyre bust and that caused the driver to lose control. He said he did not establish negligence on the part of the driver; he said that the motor vehicle was registered with Rentworks East Africa Limited. He said the motor vehicle was leased from the 1 st defendant by the government.
He stated further that the investigation outcome was the opening of an inquiry file by the Investigating Officer and forwarded to ODPP – but by the time of trial there was no charge against the driver. He said that as per the logbook the motor vehicle was registered under the name of the 1 st defendant; that the policy holder of the Insurance was Rentworks MCR/WD12019/00007/Com under Rentworks Insurance.
On re-examination, he told the court he did not know the details of his terms of the lease between the government and the private company; that the OB indicated cause of accident as tyre burst.
Pw2 was Dr. Esther Nzomo Musyoki was a medical officer at Makindu Sub-County Hospital.
She produced the medical report for Titus Mutinda Mbolu. On cross-examination she said plaintiff sustained soft tissue injuries ; that healing may depend on the person, and for some soft tissue injuries painkillers would do.
Pw3 Titus Mutinda Mbolu adopted his statement. He told the court that he gets headaches when it is hot, and chest pains when it is cold.
On cross-examination he told the court that he had been arrested and was being taken to court. He said he was seated at the back of the Landcruiser and he could not see the driver. He said that the police abstract indicated that the matter was still under investigations. He said he heard the tyre burst when the motor vehicle had lost control.
On re-examination he said that the motor vehicle was carrying excess passengers that the police put them in that motor vehicle, that the motor vehicle was insured by Rentworks East Africa Limited.
The defendants each closed its case without calling any evidence.
It was agreed that this suit would be test suit on liability to be applicable to Makindu MCCC 113 & 114 of 2020.
Parties filed submissions.
By Judgment delivered on 5/10/2023, the trial court found in favour of the plaintiff – liability – 100% in favour of the plaintiff and general damages of Ksh. 150,000/=, special damages of Kshs. 4330/= and costs and interests against the defendants jointly and severely.
(7) The Appeal
The 1 st defendant was aggrieved and filed this appeal on the grounds that the learned trial magistrate erred in law and in facts by;
- Failing to uphold the doctrine of vicarious liability, and finding that 1 st defendant/appellant was vicariously liable for incident.
- Failing to find that there was no master/servant relationship between the 1 st defendant/appellant and the driver.
- Failing to find that the driver was not an employee/servant/agent of the 1 st defendant/appellant.
- Failing to find that the driver was neither an authorized/nor acting under the instructions of the 1 st defendant/appellant when he caused the accident.
- By misdirecting himself on the issue of liability by failing to consider the appellants submissions.
- Holding that defendants were jointly and severally liable who every evidence and in disregarded of their submissions, and answered miscarriage of justice.
- Making an award of Ksh. 154,330/= which was manifesting high in disregard of the submission and cited legal authorities; taking into account irrelevant factors, applying wrong principles, and arriving at a wrong decision.
- That the entire Judgment was unfair – ought to be set aside.
The Submissions
The 2 nd Respondent, the Attorney General did not file any submissions.
Appellants Submissions on Liability
The appellant reiterated the pleadings where the plaintiff pleaded that the appellant was registered owner; and GOK was beneficial owner, user ,possessor, and controller of the motor vehicle registration No. GKB 110H.
- That the motor vehicle was assigned to Ministry of Interior, was driven by an employee of the GOK and or the 1 st defendants (Appellants) employee, servant, agent and/or authorized driver in the course of the said employment .
(8) The appellant denied this averment and put the plaintiff to strict proof thereof.
It is the appellants Submission that the motor vehicle was driven by an employee of the National Police Service and not the appellant who is a private company; and that the driver was not acting under the instructions of the appellant. The appellant posed the question – can the appellant, in the above circumstances be held liable for the actions of the driver? The appellant answered it in the negative. It is submitted that the plaintiff had the onus to prove that there existed a master/servant relationship between the appellant and the driver for holding to be inferred on the appellant.
(9) On this, the appellant relied on Kirugi & Anor Vs Kibiya and 3 Others [1987] eKLR quoted in David Mwangi Kerinki & Anor Vs Stephen Mwangi & Anor [2017] eKLR that the burden was on the Plaintiff to prove his case on a balance of probabilities. It is submitted that the plaintiff did to prove the claim that appellants driver was in control of the motor vehicle at the time of the RTA – and vicarious liability could not arise.
It is submitted that the test for vicarious liability of the driver’s action is:- who is in control of the task performed and that it includes the right to control the way in which the act involving the negligence was performed .
(10) The appellant concedes that it was the registered owner of the motor vehicle, and it leased the same to the 2 nd respondent (AG) through the National Police Service, and could not have any control over how the motor vehicle was driven.
The appellant cited Fredrick Mwakundia Uhuru Vs Rentworks East Africa Limited and Anor [2023] eKLR : -
The lower court had found that the respondent (Rentworks) was not liable/vicariously liable for the amount from the reason that as the registered owner, an insurer, it had not instructed the driver; on appeal the judge was of the view that – “the presumption that the registered owner of the motor vehicle (1 st Respondent) authorized the driver to ………….the subject motor vehicle… was displaced by the evidence of the appellant himself, since …it is clear that only the National Police Service could give instructions to the said police driver…and not the registered owner”.
(11) The appellant also relied on Anyanzwa vs Gasperis [1981] eKLR where the Court of Appeal held that an owner who hires out their car to a person to be used for purposes in which the owner has no interest or concern escapes liability. It is submitted that only the 2 nd Respondent can be held vicariously liable for the actions of the driver – for that the appellant relied on Kenya Bus Services Limited Vs Dina Kawira Humphrey [2003] eKLR where the court stated
According to the pleadings, we are concerned here with the master’s liability for his servants’ torts. In such a case, it is the existence of the relationship of the master and servant which gives rise to vicarious liability – see Dritoo v West Nile District Administration [1968] EA 428 at page 435 paragraphs E-F). In Karisa v Solanki [1969] EA 318 the Predecessor of this Court said at page 322 paragraph 9 G.
“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (see Bernard v Sully (1931) 47 TLR 557). This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.”
And Anyanzwa Vs Gasperis (above) where the court said
The House of Lords in that case held that to fix liability on the owner of a car for the negligence of the driver, not being a servant, it must be shown that the driver, at the material time, was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship it is necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions, and was doing so in performance of a task or duty delegated to him by the owner. The fact that the driver is using the car with the owner’s permission is not sufficient to establish vicarious liability. An owner who hires out his car to a person to be used for purposes in which the owner has no interest or concern escapes liability.
Applying these principles to the facts of this case, it seems to me that:
a) the driver was driving the microbus with the permission of the owners;
b) the driver was not the owners’ servant;
c) the driver was not driving at the owners’ request, express or implied;
d) the owners had not delegated any task or duty to the driver, as they were under no duty to transport the tourists;
e) the owners had no interest or concern in the purposes for which the microbus was being driven when the accident occurred, as they had no control over the vehicle or its driver at that time and did not retain or share any part of the money earned by the microbus when it was on hire to Hansmax;
f) the fact that the microbus was being hired by Hansmax for a consideration is not sufficient in itself to make the owners vicariously liable for the negligence of Hansmax’s driver, as the microbus was not at the material time being driven for the benefit of the owners or for the joint benefit of the owners and the driver or his employer. It follows from all this that in my view the microbus had been hired out to Hansmax to be used for purposes in which the owners had no interest or concern; it was not being driven for the owner’s benefit, or on the instructions or at the request of the owners; the owners had not delegated any task or duty to the driver and had no right of control or direction over him. The appellants as owners are not, in these circumstances, vicariously liable for the driver’s negligence. For these reasons this appeal must in my view succeed, and I would allow it, with costs, set aside the judgment and decree appealed from and substitute a judgment and decree in favour of the appellants, with costs of the suit. As Miller and Potter JJA agree, it is so ordered. It is accordingly unnecessary to deal with the appeal against damages, beyond saying that the awards made by the learned judge would not be easy to support, especially as to special damages.
I have reached this conclusion with regret, as it leaves the respondents without redress, a situation which would have been avoided had the driver’s personal representative been joined as a defendant and the driver’s negligence been established, in which case the insurance company would have had to satisfy the damages awarded, as the insured vehicle was at material time being driven by an authorized driver within the terms of the policy.
As it is, no judgment has ever been obtained against the driver or his employers Hansmax. Had such a judgment been obtained, as it could and would have been had the driver’s personal representative been sued, the insurers would have been liable under the appellants’ policy, and I hope they will see fit to discharge their moral liability towards the respondents by making a reasonable exgratia payment to them
And P.A Okelo & MM Nsereko T/A Kaburu Okelo & Partners Vs Stella Karimi Kobia and 2 others [2012] eKLR for the proposition that
“The question of liability was not determined by any agreement between the general employees and the hirers but dependent on the circumstances of the case, the proper test to apply being whether or not the hirers had authority to control the manner of the relevant acts of the driver”.
The appellant submits that from the foregoing cases – the appellant had leased the motor vehicle to the 2 nd respondent, had no control over the driver’s actions, and could not be vicariously liable.
(12) The appellant added Meto & Anor Vs Kihanguru & 3 others [2002] eKLR where the court stated
We think that Morgans vs Launchbury and Others [1972] 2 All ER 606 is in all fours with the matter now before us. In this case the House of Lords held: -
“In order to fix liability on the owner of a car for the negligence of the driver, it is necessary to show either that the driver was the owner’s servant or at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner’s request express or implied or on his instructions and was doing so in the performance of the task or duty thereby delegated to him by the owner.”
Simply illustrated, the doctrine enunciated above may be stated as follow. Where A, the owner of a vehicle, expressly or impliedly requests or instructs B to drive the vehicle in performance of some task or duty carried out for A, A will be vicariously liable for B’s negligence in the operation of the vehicle.
The appellant also relies on section 109 of the Evidence Act the on the burden of proof.
On Quantum
The appellant relied on Osman Mohammed & Anor Vs Saluro Bundit Mohammed Civil Appeal No. 30/1997 for the proposition that damages must be within the limits set out by precedent and afforded by the Kenyan economy – as large damages are inevitably passed to the public, in the form of increased insurance fees: – it was submitted that the sum of Ksh 150000/= General Damages was excessive and the appellant proposed Ksh. 100000/= for the injuries described as – left parietal scalp laceration , blunt chest trauma relying on – Nyambati Nyanswabu Eric Vs Toyota Kenya Limited & 2 Others [2019] eKLR where the sum of Ksh 90000 was awarded for severe soft tissue injuries (deep cut on scalp, blunt injury on left side of chest, contusion on back and both legs) and PF (Suing as next friend and father of SK (minor) Vs Victor O Kamadi and AL Husnain Motors Ltd (Civil Appeal 19/2017)[2018] KEHC 142 (KLR) (7/11/2018) Judgment where the sum of Ksh 100000/= was awarded for cut wounds on forehead, right leg, multiple abrasions on face, blunt injury to head and loss of consciousness, abrasions to back, abrasion wounds to dorsum of right hand
.
(13) The appellant concludes that the plaintiff has not established his on a balance of probabilities against the appellant.
1 st Respondent’s Submission
The 1 st Respondent reiterated the pleadings and evidence – and then set out the issues for determination: as liability and quantum, and reiterated the submissions of the appellant.
The 1 st Respondent submitted that the appellant did not adduce any evidence to support its position and that the award in general damages was not excessive.
On the duty of the court in this appeal, the 1 st Respondent cited Selle Vs Associated Motor Boat Company Limited [1986] EA 123,
With regard to the court’s dusty on the award of damages the court was referred to Catholic Diocese of Kisumu Vs Sophia Achieng Tete Kisumu Civil Appeal No. 284/2001 and Kemfro Africa Limited & Another Vs Lubia & Anor Vs Lubia & Anor (1982 – 1988) KLR .
(14) This court is urged to do its duty – to reconsider and re-evaluate the evidence that was placed before the trial court and draw its own conclusions.
It is submitted from the outset by the 1 st Respondent that the appellant has not demonstrated that the court ought to interfere with the decision of the trial court; that the trial court did indeed correctly direct its mind to the evidence adduced and applied the right principles.
On liability
It is submitted that the appellant denied ownership of the motor vehicle, and blameworthiness for the accident.
The 1 st Respondent submitted that to prove ownership he produced a copy of records showing that the registered owner was Rentworks East Africa Limited. He cited Khan vs Cooke & Others Civil Appeal No. 45/1975 as applied in Munyiri Special Honey Limited Vs Kennedy Wachira Nyaga [2014] eKLR – that ownership of motor vehicle can be ascertained from the certificate of Insurance.
(15) That the appellant did not dispute the ownership
On blameworthiness
The 1 st Respondent reiterated the evidence on record. It was submitted that on that evidence the trial court found that the accident was self-involving as the evidence was that the m/v lost control and rolled; that the 1 st Respondent did not contribute to the accident . Further that the motor vehicle was on lease to the GOK from the appellant.
(16) It is submitted that the appellant’s issue is that the trial court did not apply the principle of vicarious liability correctly.
The 1 st respondent argues that on the uncontested fact that the motor vehicle was registered in the name of the appellant, and was leased by the appellant to GOK – there was the presumption that the appellant was liable for the acts of the driver. He cited Bouchard International (services) Ltd Vs Philip Nzioki MMwereria [1987] KECA 75 (KLR) for the proposition that this is a rebuttable presumption.
(17) It is submitted that the mere fact of the lease was not sufficient evidence to rebut the presumption – and for this the 1 st Respondent relies on Karisa & Anor Vs Solanki & Anor [1969] EA 318 where it is stated;
“The presumption that a car is being driven by a person for whose negligence the owner is responsible is not necessarily disturbed by evidence that the car was lent to the driver by the owner as this does nor dispel the possibility that it was being driven for their joint benefit.”
(18) It is argued that the 1 st respondent having established the uncontested facts; established the presumption, and the burden shifted to the appellant to rebut that presumption – as was held by Karisa & Anor above
“The proved circumstances raised an inference that the driver was driving the car for the joint benefit of the owner and himself and in the absence of evidence to the contrary the owner was responsible for the negligence of the driver.”
(19) The 1 st Respondent relied on Rento EA Ltd Vs Dominic Mutua Ngonzi [2021] eKLR . – where the court refused to fault the finding of vicarious liability by the learned magistrate – in the case where the motor vehicle was registered in the name of the appellant, but bore GK registration plates.
(20) The court noted that the appellant had introduced the issue of lease through submissions, and the court rejected that as not being evidence.
(21) It was submitted that in this case the appellant had the evidence to rebut the presumption but did not adduce the evidence – that the lease agreement would have shed more light on the terms of the lease agreement, and would have put to rest the question of who bore liability for an accident emanating from the use of the motor vehicle. That failure to produce the lease agreement calls for the inference that it would have been adverse to the appellant as held in Central Microfilm Operators (1990) Ltd Vs Teachers Service Commission [2015] eKLR .
(22) It is submitted that GOK has adopted a policy of leasing motor vehicles from private companies, and the terms, nature and extent of the leases however vary depending as various factors. E.g.,
In Cheveleli Vs Rentworks EA Ltd & Anor Civil Appeal E007/2020 KEHC 18018 (KLR)
Where court was told that the 1 st respondent was responsible for repair and maintenance of the motor vehicle; in Geminia Insurance Co. Ltd vs Cooperative Bank Fleet Africa Leasing Civil Suit E006/2023 [2024] KEHC 1288 )KLR) – where the court was told that the lesser was not liable for any death/body injury to passengers who were employees of the National Police Service; in Tshusho Capital Kenya Ltd Vs Ngechi Civil Appeal 12/2019 (2022 ) KEHC 15445 (KLR) where the lesser was to insure the leased motor vehicles at the government agencies cost, where a claim was against the lesser, they would be identified by the government agency
(23) It is submitted that the fact that the motor vehicles were leased cannot ipso facto dispel holding against the appellant – that the appellant could have settled this by producing the evidence in court of the terms of the lease.
(24) The 1 st Respondent distinguished Fredrick Mwakundia Uhuru Vs Rentworks EA Ltd & Anor – that in this case the plaintiff claimed vicarious liability; that in this case there was no evidence to rebut liability. PW1 testified he did not know who signed the work ticket; and PW2 said he did not know the terms of the lease. It is argued that the decision is only persuasive and the court is urged to be persuaded by Rento EA Ltd (above).
(25) It is further submitted that the appellants position intends to defeat the purpose of Cap 405 – the Insurance (motor vehicles Third Party Risks) – That section 4 & 5 it is mandatory for owners of motor vehicles to insure their motor vehicles in respect of death/injury to 3 rd parties. That would result in miscarriage of justice – as without a finding of liability against the policy holder, the insurer is not liable under Cap 405. See CIC General Insurance Co. Ltd Vs. Ondego aka Ondeko [2024] KEHC 873 (KLR ).
(26) It is argued that the appellant has not explained how it came to take out Insurance for a motor vehicle for which it disclaims liability; that the claim form was completed by the driver of the said motor vehicle – That the subsistence of the cover is evidence that any 3 rd party would be protected - and it estops the appellant from disclaiming liability.
(27) The court is urged not to uphold the appellant’s submissions – as that would amount to enforcing an illegal constraint – see Kenya Airways Ltd Vs Satwant Singh Flora [2013] eKLR where the court quoted Scott Vs Brown Doering McNab & Co. (3) [1892] 2 QB 724
No court can enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the court is himself implicated in the illegality. It does not matter whether or not the Defendant has pleaded the illegality. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.
]
Tsusho Capital Ltd (Above)
In the peculiar circumstances of this case therefore, it is my conclusion that the failure of the plaintiff to sue both the respondent/defendant and the Attorney General jointly, or of the defendant to take out 3 rd party proceedings against the Attorney General or the omission of the trial court to enjoin the Attorney General, did not extinguish the respondent/plaintiff’s claim. The appellant, though not in possession of the vehicle and for the reasons already set out in this judgment, was still liable. In view of the agreement between the appellant and the National Treasury which clearly provides how the claim is to be settled, the justice of the case demands that the plaintiff/respondent’s claim is met by the appellant and who according to the agreement, may seek indemnity from the Government. It would offend the sense of justice for this court to tell the claimant ‘Sorry, you sued the wrong party.’
On Quantum
(28) The 1 st Respondent reiterates the submissions before the lower court – and that they proposed the sum of Ksh 200,000 General Damages relying on –
Yusuf M Hamza & Anor Vs Farida Pendo Kapumi [2016] eKLR where the court awarded Ksh. 180000/= General Damages for multiple cuts on the left forearm; Swiss Contact Ltd & Peter Mungiti Kieti Vs Esther & Anor [2019] eKLR – where Ksh 200,000/= General Damages was award for soft tissue injuries to forehead, back, and right gluteal area.
(29) The 1 st Respondent reiterated the appellants submissions. It was submitted that the trial court considered the Yusuf Hamza case & Nyambeti Nyaswabu cases – to arrive at Ksh. 150,000/=.
(30) The 1 st respondent pointed out that the appellant failed to cite before this court Lilian Anyango Otieno Vs Philip Mugoya Ogila that was cited before the trial court – which decision supported the courts finding on general damages.
(31) It is argued that it was wrong for the appellant to cite different cased from those cited before the trial court – see Sila Tiren & Anor Vs Simon Ombeti Omiambo[2014] eKLR & Easy Coach Ltd Vs Emily Nyangasi [2017] eKLR
On the specific sum the court was referred to Benard Bisonga Sungura & another Vs Lucas Oyolo Owino [2020] eKLR for the proposition that general damages for the soft tissue injuries range between Ksh 90,000 & 220,000.
On whether the court should interfere with the lower court’s decision – the court was referred to Gitobu Imanyara & 2 Others Vs AG. [2016] eKLR .
(32) The court was urged to dismiss the appeal.
ANALYSIS AND DETERMINATION
(33) I have carefully considered the Record of Appeal, the evidence before the trial court, the Memorandum of Appeal, the Submissions below and before me - the issues that arise from determination are:-
1) Whether the plaintiff/1 st respondent established liability against the appellant.
2) Whether the court should interfere with the award of General Damages awarded by the trial court.
On the 1 st issue it is not disputed that the motor vehicle herein was on lease agreement between the appellant and the 1 st respondent for use by the National Police Service.
The appellant was the registered owner and the insured. The National police service was user and t
[...truncated]
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E097 OF 2023
RENTWORKS EAST AFRICA LIMITED ……………………APPELLANT
VERSUS
TITUS MUTINDA MBOLU ……………………………..1 ST RESPONDENT
THE ATTORNEY GENERAL …………………………2 ND RESPONDENT
JUDGMENT
(1) According to the pleadings and evidence Titus Mutinda Mbolu was arrested on 27/6/2018 and on 28/6/2018 was a passenger in motor vehicle registration GKB 1104 under escort of Police Officers from Mtito Andei police station escorting him to Court.. It is his case that the motor vehicle driver at a speed, carelessly and negligently that the motor vehicle lost control, veered off the road and violently overturned whereas the plaintiff sustained severe personal injuries, loss and damage.
He filed suit –
Makindu MCCC 369/2019 where set out the particulars of negligence against the driver and that he would rely on the doctrines of res ipsa loquitur.
He set down the particulars of injuries:-
- Large cut on the left side of the head; soft tissue injuries on the chest and left shoulder.
- At the time of filing the suit he complained of chest and lower back pain, difficulty hearing on left ear, difficulty in doing manual jobs.
He set out special damages –
Medical report – at Kshs 3000/=
Copy of records – at Kshs 550/=
Treatment and medical expenses – at Kshs 780/=
4330
The plaintiff sought Judgment jointly and severally against the defendants who were Rentworks East Africa Limited and the Hon Attorney General -
1) Special damages – Ksh 4330
2) General Damages for pain suffering and loss of amenities.
3) Costs of the suit
4) Interest on 1, 2, 3 at court rates.
(2) The 1 st defendant filed a defence on 7/1/2020and denied being the registered owner of motor vehicle registration No. GKB 110H and that the motor vehicle was being driven by its employee, agent and or authorized officer, and put the plaintiff to strict proof.
(3) The 1 st defendant did not dispute that the accident happened but denied the allegation of the negligence. The 1 st defendant denied that plaintiff was a passenger in the said motor vehicle and put the plaintiff to strict proof thereof.
The 1 st defendant accused the plaintiff of negligence for failing to wear safety belt while in the motor vehicle, failing to observe traffic rules – defendant stated that it would rely on the doctrine of volenti non fit injuria. The 1 st defendant also denied the particulars of injuries, loss and damage put the plaintiff to strict proof thereof.
The 1 st defendant urged the plaintiff’s case be dismissed with costs .and interest.
(4) The 2 nd defendant filed defence on 27/1/2020. The 2 nd defendant denied everything since the descriptive parts of the plaint.
In the alternative and w/o prejudice the 2 nd defendant averred that if an accident occurred as alleged it was denied – but the 2 nd defendant solely caused/substantially contributed to the to the accident .
The 2 nd defendant set out its accusations of negligence. That the plaintiff was travelling in GKB 110H as unauthorized passenger, failed to fasten his safety belt while a passenger in the GKB 110H; deliberately exposing himself to danger, causing the accident.
The 2 nd defendant put the plaintiff to strict proof to all the claim and sought that the suit be dismissed with costs.
(5) The Plaintiff replied to the defences and joined issues appropriately and put the defendant to strict proof of the allegations against him.
(6) The Hearing
- The matter was heard by the Hon. E. Mbicha, PM. Pw1 was No. 78253 Sergeant Benson Muema Muendo. He said the accident involved police motor vehicle GKB 110H along Nairobi/Mombasa Highway at China Site area on 28/6/2019 at 8:30 a.m. He said the motor vehicle was driven by No. 54525 PC Driver Philip Njenga and on board were police officers escorting prisoners – that among the injured was Mutinda Mbolu – who was listed as No. 7 in the OB.
He produced the police abstract issued from Makindu police statement.
In cross-examination he said that the accident was as a result of a tyre bust and that caused the driver to lose control. He said he did not establish negligence on the part of the driver; he said that the motor vehicle was registered with Rentworks East Africa Limited. He said the motor vehicle was leased from the 1 st defendant by the government.
He stated further that the investigation outcome was the opening of an inquiry file by the Investigating Officer and forwarded to ODPP – but by the time of trial there was no charge against the driver. He said that as per the logbook the motor vehicle was registered under the name of the 1 st defendant; that the policy holder of the Insurance was Rentworks MCR/WD12019/00007/Com under Rentworks Insurance.
On re-examination, he told the court he did not know the details of his terms of the lease between the government and the private company; that the OB indicated cause of accident as tyre burst.
Pw2 was Dr. Esther Nzomo Musyoki was a medical officer at Makindu Sub-County Hospital.
She produced the medical report for Titus Mutinda Mbolu. On cross-examination she said plaintiff sustained soft tissue injuries ; that healing may depend on the person, and for some soft tissue injuries painkillers would do.
Pw3 Titus Mutinda Mbolu adopted his statement. He told the court that he gets headaches when it is hot, and chest pains when it is cold.
On cross-examination he told the court that he had been arrested and was being taken to court. He said he was seated at the back of the Landcruiser and he could not see the driver. He said that the police abstract indicated that the matter was still under investigations. He said he heard the tyre burst when the motor vehicle had lost control.
On re-examination he said that the motor vehicle was carrying excess passengers that the police put them in that motor vehicle, that the motor vehicle was insured by Rentworks East Africa Limited.
The defendants each closed its case without calling any evidence.
It was agreed that this suit would be test suit on liability to be applicable to Makindu MCCC 113 & 114 of 2020.
Parties filed submissions.
By Judgment delivered on 5/10/2023, the trial court found in favour of the plaintiff – liability – 100% in favour of the plaintiff and general damages of Ksh. 150,000/=, special damages of Kshs. 4330/= and costs and interests against the defendants jointly and severely.
(7) The Appeal
The 1 st defendant was aggrieved and filed this appeal on the grounds that the learned trial magistrate erred in law and in facts by;
- Failing to uphold the doctrine of vicarious liability, and finding that 1 st defendant/appellant was vicariously liable for incident.
- Failing to find that there was no master/servant relationship between the 1 st defendant/appellant and the driver.
- Failing to find that the driver was not an employee/servant/agent of the 1 st defendant/appellant.
- Failing to find that the driver was neither an authorized/nor acting under the instructions of the 1 st defendant/appellant when he caused the accident.
- By misdirecting himself on the issue of liability by failing to consider the appellants submissions.
- Holding that defendants were jointly and severally liable who every evidence and in disregarded of their submissions, and answered miscarriage of justice.
- Making an award of Ksh. 154,330/= which was manifesting high in disregard of the submission and cited legal authorities; taking into account irrelevant factors, applying wrong principles, and arriving at a wrong decision.
- That the entire Judgment was unfair – ought to be set aside.
The Submissions
The 2 nd Respondent, the Attorney General did not file any submissions.
Appellants Submissions on Liability
The appellant reiterated the pleadings where the plaintiff pleaded that the appellant was registered owner; and GOK was beneficial owner, user ,possessor, and controller of the motor vehicle registration No. GKB 110H.
- That the motor vehicle was assigned to Ministry of Interior, was driven by an employee of the GOK and or the 1 st defendants (Appellants) employee, servant, agent and/or authorized driver in the course of the said employment .
(8) The appellant denied this averment and put the plaintiff to strict proof thereof.
It is the appellants Submission that the motor vehicle was driven by an employee of the National Police Service and not the appellant who is a private company; and that the driver was not acting under the instructions of the appellant. The appellant posed the question – can the appellant, in the above circumstances be held liable for the actions of the driver? The appellant answered it in the negative. It is submitted that the plaintiff had the onus to prove that there existed a master/servant relationship between the appellant and the driver for holding to be inferred on the appellant.
(9) On this, the appellant relied on Kirugi & Anor Vs Kibiya and 3 Others [1987] eKLR quoted in David Mwangi Kerinki & Anor Vs Stephen Mwangi & Anor [2017] eKLR that the burden was on the Plaintiff to prove his case on a balance of probabilities. It is submitted that the plaintiff did to prove the claim that appellants driver was in control of the motor vehicle at the time of the RTA – and vicarious liability could not arise.
It is submitted that the test for vicarious liability of the driver’s action is:- who is in control of the task performed and that it includes the right to control the way in which the act involving the negligence was performed .
(10) The appellant concedes that it was the registered owner of the motor vehicle, and it leased the same to the 2 nd respondent (AG) through the National Police Service, and could not have any control over how the motor vehicle was driven.
The appellant cited Fredrick Mwakundia Uhuru Vs Rentworks East Africa Limited and Anor [2023] eKLR : -
The lower court had found that the respondent (Rentworks) was not liable/vicariously liable for the amount from the reason that as the registered owner, an insurer, it had not instructed the driver; on appeal the judge was of the view that – “the presumption that the registered owner of the motor vehicle (1 st Respondent) authorized the driver to ………….the subject motor vehicle… was displaced by the evidence of the appellant himself, since …it is clear that only the National Police Service could give instructions to the said police driver…and not the registered owner”.
(11) The appellant also relied on Anyanzwa vs Gasperis [1981] eKLR where the Court of Appeal held that an owner who hires out their car to a person to be used for purposes in which the owner has no interest or concern escapes liability. It is submitted that only the 2 nd Respondent can be held vicariously liable for the actions of the driver – for that the appellant relied on Kenya Bus Services Limited Vs Dina Kawira Humphrey [2003] eKLR where the court stated
According to the pleadings, we are concerned here with the master’s liability for his servants’ torts. In such a case, it is the existence of the relationship of the master and servant which gives rise to vicarious liability – see Dritoo v West Nile District Administration [1968] EA 428 at page 435 paragraphs E-F). In Karisa v Solanki [1969] EA 318 the Predecessor of this Court said at page 322 paragraph 9 G.
“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (see Bernard v Sully (1931) 47 TLR 557). This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.”
And Anyanzwa Vs Gasperis (above) where the court said
The House of Lords in that case held that to fix liability on the owner of a car for the negligence of the driver, not being a servant, it must be shown that the driver, at the material time, was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship it is necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions, and was doing so in performance of a task or duty delegated to him by the owner. The fact that the driver is using the car with the owner’s permission is not sufficient to establish vicarious liability. An owner who hires out his car to a person to be used for purposes in which the owner has no interest or concern escapes liability.
Applying these principles to the facts of this case, it seems to me that:
a) the driver was driving the microbus with the permission of the owners;
b) the driver was not the owners’ servant;
c) the driver was not driving at the owners’ request, express or implied;
d) the owners had not delegated any task or duty to the driver, as they were under no duty to transport the tourists;
e) the owners had no interest or concern in the purposes for which the microbus was being driven when the accident occurred, as they had no control over the vehicle or its driver at that time and did not retain or share any part of the money earned by the microbus when it was on hire to Hansmax;
f) the fact that the microbus was being hired by Hansmax for a consideration is not sufficient in itself to make the owners vicariously liable for the negligence of Hansmax’s driver, as the microbus was not at the material time being driven for the benefit of the owners or for the joint benefit of the owners and the driver or his employer. It follows from all this that in my view the microbus had been hired out to Hansmax to be used for purposes in which the owners had no interest or concern; it was not being driven for the owner’s benefit, or on the instructions or at the request of the owners; the owners had not delegated any task or duty to the driver and had no right of control or direction over him. The appellants as owners are not, in these circumstances, vicariously liable for the driver’s negligence. For these reasons this appeal must in my view succeed, and I would allow it, with costs, set aside the judgment and decree appealed from and substitute a judgment and decree in favour of the appellants, with costs of the suit. As Miller and Potter JJA agree, it is so ordered. It is accordingly unnecessary to deal with the appeal against damages, beyond saying that the awards made by the learned judge would not be easy to support, especially as to special damages.
I have reached this conclusion with regret, as it leaves the respondents without redress, a situation which would have been avoided had the driver’s personal representative been joined as a defendant and the driver’s negligence been established, in which case the insurance company would have had to satisfy the damages awarded, as the insured vehicle was at material time being driven by an authorized driver within the terms of the policy.
As it is, no judgment has ever been obtained against the driver or his employers Hansmax. Had such a judgment been obtained, as it could and would have been had the driver’s personal representative been sued, the insurers would have been liable under the appellants’ policy, and I hope they will see fit to discharge their moral liability towards the respondents by making a reasonable exgratia payment to them
And P.A Okelo & MM Nsereko T/A Kaburu Okelo & Partners Vs Stella Karimi Kobia and 2 others [2012] eKLR for the proposition that
“The question of liability was not determined by any agreement between the general employees and the hirers but dependent on the circumstances of the case, the proper test to apply being whether or not the hirers had authority to control the manner of the relevant acts of the driver”.
The appellant submits that from the foregoing cases – the appellant had leased the motor vehicle to the 2 nd respondent, had no control over the driver’s actions, and could not be vicariously liable.
(12) The appellant added Meto & Anor Vs Kihanguru & 3 others [2002] eKLR where the court stated
We think that Morgans vs Launchbury and Others [1972] 2 All ER 606 is in all fours with the matter now before us. In this case the House of Lords held: -
“In order to fix liability on the owner of a car for the negligence of the driver, it is necessary to show either that the driver was the owner’s servant or at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner’s request express or implied or on his instructions and was doing so in the performance of the task or duty thereby delegated to him by the owner.”
Simply illustrated, the doctrine enunciated above may be stated as follow. Where A, the owner of a vehicle, expressly or impliedly requests or instructs B to drive the vehicle in performance of some task or duty carried out for A, A will be vicariously liable for B’s negligence in the operation of the vehicle.
The appellant also relies on section 109 of the Evidence Act the on the burden of proof.
On Quantum
The appellant relied on Osman Mohammed & Anor Vs Saluro Bundit Mohammed Civil Appeal No. 30/1997 for the proposition that damages must be within the limits set out by precedent and afforded by the Kenyan economy – as large damages are inevitably passed to the public, in the form of increased insurance fees: – it was submitted that the sum of Ksh 150000/= General Damages was excessive and the appellant proposed Ksh. 100000/= for the injuries described as – left parietal scalp laceration , blunt chest trauma relying on – Nyambati Nyanswabu Eric Vs Toyota Kenya Limited & 2 Others [2019] eKLR where the sum of Ksh 90000 was awarded for severe soft tissue injuries (deep cut on scalp, blunt injury on left side of chest, contusion on back and both legs) and PF (Suing as next friend and father of SK (minor) Vs Victor O Kamadi and AL Husnain Motors Ltd (Civil Appeal 19/2017)[2018] KEHC 142 (KLR) (7/11/2018) Judgment where the sum of Ksh 100000/= was awarded for cut wounds on forehead, right leg, multiple abrasions on face, blunt injury to head and loss of consciousness, abrasions to back, abrasion wounds to dorsum of right hand
.
(13) The appellant concludes that the plaintiff has not established his on a balance of probabilities against the appellant.
1 st Respondent’s Submission
The 1 st Respondent reiterated the pleadings and evidence – and then set out the issues for determination: as liability and quantum, and reiterated the submissions of the appellant.
The 1 st Respondent submitted that the appellant did not adduce any evidence to support its position and that the award in general damages was not excessive.
On the duty of the court in this appeal, the 1 st Respondent cited Selle Vs Associated Motor Boat Company Limited [1986] EA 123,
With regard to the court’s dusty on the award of damages the court was referred to Catholic Diocese of Kisumu Vs Sophia Achieng Tete Kisumu Civil Appeal No. 284/2001 and Kemfro Africa Limited & Another Vs Lubia & Anor Vs Lubia & Anor (1982 – 1988) KLR .
(14) This court is urged to do its duty – to reconsider and re-evaluate the evidence that was placed before the trial court and draw its own conclusions.
It is submitted from the outset by the 1 st Respondent that the appellant has not demonstrated that the court ought to interfere with the decision of the trial court; that the trial court did indeed correctly direct its mind to the evidence adduced and applied the right principles.
On liability
It is submitted that the appellant denied ownership of the motor vehicle, and blameworthiness for the accident.
The 1 st Respondent submitted that to prove ownership he produced a copy of records showing that the registered owner was Rentworks East Africa Limited. He cited Khan vs Cooke & Others Civil Appeal No. 45/1975 as applied in Munyiri Special Honey Limited Vs Kennedy Wachira Nyaga [2014] eKLR – that ownership of motor vehicle can be ascertained from the certificate of Insurance.
(15) That the appellant did not dispute the ownership
On blameworthiness
The 1 st Respondent reiterated the evidence on record. It was submitted that on that evidence the trial court found that the accident was self-involving as the evidence was that the m/v lost control and rolled; that the 1 st Respondent did not contribute to the accident . Further that the motor vehicle was on lease to the GOK from the appellant.
(16) It is submitted that the appellant’s issue is that the trial court did not apply the principle of vicarious liability correctly.
The 1 st respondent argues that on the uncontested fact that the motor vehicle was registered in the name of the appellant, and was leased by the appellant to GOK – there was the presumption that the appellant was liable for the acts of the driver. He cited Bouchard International (services) Ltd Vs Philip Nzioki MMwereria [1987] KECA 75 (KLR) for the proposition that this is a rebuttable presumption.
(17) It is submitted that the mere fact of the lease was not sufficient evidence to rebut the presumption – and for this the 1 st Respondent relies on Karisa & Anor Vs Solanki & Anor [1969] EA 318 where it is stated;
“The presumption that a car is being driven by a person for whose negligence the owner is responsible is not necessarily disturbed by evidence that the car was lent to the driver by the owner as this does nor dispel the possibility that it was being driven for their joint benefit.”
(18) It is argued that the 1 st respondent having established the uncontested facts; established the presumption, and the burden shifted to the appellant to rebut that presumption – as was held by Karisa & Anor above
“The proved circumstances raised an inference that the driver was driving the car for the joint benefit of the owner and himself and in the absence of evidence to the contrary the owner was responsible for the negligence of the driver.”
(19) The 1 st Respondent relied on Rento EA Ltd Vs Dominic Mutua Ngonzi [2021] eKLR . – where the court refused to fault the finding of vicarious liability by the learned magistrate – in the case where the motor vehicle was registered in the name of the appellant, but bore GK registration plates.
(20) The court noted that the appellant had introduced the issue of lease through submissions, and the court rejected that as not being evidence.
(21) It was submitted that in this case the appellant had the evidence to rebut the presumption but did not adduce the evidence – that the lease agreement would have shed more light on the terms of the lease agreement, and would have put to rest the question of who bore liability for an accident emanating from the use of the motor vehicle. That failure to produce the lease agreement calls for the inference that it would have been adverse to the appellant as held in Central Microfilm Operators (1990) Ltd Vs Teachers Service Commission [2015] eKLR .
(22) It is submitted that GOK has adopted a policy of leasing motor vehicles from private companies, and the terms, nature and extent of the leases however vary depending as various factors. E.g.,
In Cheveleli Vs Rentworks EA Ltd & Anor Civil Appeal E007/2020 KEHC 18018 (KLR)
Where court was told that the 1 st respondent was responsible for repair and maintenance of the motor vehicle; in Geminia Insurance Co. Ltd vs Cooperative Bank Fleet Africa Leasing Civil Suit E006/2023 [2024] KEHC 1288 )KLR) – where the court was told that the lesser was not liable for any death/body injury to passengers who were employees of the National Police Service; in Tshusho Capital Kenya Ltd Vs Ngechi Civil Appeal 12/2019 (2022 ) KEHC 15445 (KLR) where the lesser was to insure the leased motor vehicles at the government agencies cost, where a claim was against the lesser, they would be identified by the government agency
(23) It is submitted that the fact that the motor vehicles were leased cannot ipso facto dispel holding against the appellant – that the appellant could have settled this by producing the evidence in court of the terms of the lease.
(24) The 1 st Respondent distinguished Fredrick Mwakundia Uhuru Vs Rentworks EA Ltd & Anor – that in this case the plaintiff claimed vicarious liability; that in this case there was no evidence to rebut liability. PW1 testified he did not know who signed the work ticket; and PW2 said he did not know the terms of the lease. It is argued that the decision is only persuasive and the court is urged to be persuaded by Rento EA Ltd (above).
(25) It is further submitted that the appellants position intends to defeat the purpose of Cap 405 – the Insurance (motor vehicles Third Party Risks) – That section 4 & 5 it is mandatory for owners of motor vehicles to insure their motor vehicles in respect of death/injury to 3 rd parties. That would result in miscarriage of justice – as without a finding of liability against the policy holder, the insurer is not liable under Cap 405. See CIC General Insurance Co. Ltd Vs. Ondego aka Ondeko [2024] KEHC 873 (KLR ).
(26) It is argued that the appellant has not explained how it came to take out Insurance for a motor vehicle for which it disclaims liability; that the claim form was completed by the driver of the said motor vehicle – That the subsistence of the cover is evidence that any 3 rd party would be protected - and it estops the appellant from disclaiming liability.
(27) The court is urged not to uphold the appellant’s submissions – as that would amount to enforcing an illegal constraint – see Kenya Airways Ltd Vs Satwant Singh Flora [2013] eKLR where the court quoted Scott Vs Brown Doering McNab & Co. (3) [1892] 2 QB 724
No court can enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the court is himself implicated in the illegality. It does not matter whether or not the Defendant has pleaded the illegality. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.
]
Tsusho Capital Ltd (Above)
In the peculiar circumstances of this case therefore, it is my conclusion that the failure of the plaintiff to sue both the respondent/defendant and the Attorney General jointly, or of the defendant to take out 3 rd party proceedings against the Attorney General or the omission of the trial court to enjoin the Attorney General, did not extinguish the respondent/plaintiff’s claim. The appellant, though not in possession of the vehicle and for the reasons already set out in this judgment, was still liable. In view of the agreement between the appellant and the National Treasury which clearly provides how the claim is to be settled, the justice of the case demands that the plaintiff/respondent’s claim is met by the appellant and who according to the agreement, may seek indemnity from the Government. It would offend the sense of justice for this court to tell the claimant ‘Sorry, you sued the wrong party.’
On Quantum
(28) The 1 st Respondent reiterates the submissions before the lower court – and that they proposed the sum of Ksh 200,000 General Damages relying on –
Yusuf M Hamza & Anor Vs Farida Pendo Kapumi [2016] eKLR where the court awarded Ksh. 180000/= General Damages for multiple cuts on the left forearm; Swiss Contact Ltd & Peter Mungiti Kieti Vs Esther & Anor [2019] eKLR – where Ksh 200,000/= General Damages was award for soft tissue injuries to forehead, back, and right gluteal area.
(29) The 1 st Respondent reiterated the appellants submissions. It was submitted that the trial court considered the Yusuf Hamza case & Nyambeti Nyaswabu cases – to arrive at Ksh. 150,000/=.
(30) The 1 st respondent pointed out that the appellant failed to cite before this court Lilian Anyango Otieno Vs Philip Mugoya Ogila that was cited before the trial court – which decision supported the courts finding on general damages.
(31) It is argued that it was wrong for the appellant to cite different cased from those cited before the trial court – see Sila Tiren & Anor Vs Simon Ombeti Omiambo[2014] eKLR & Easy Coach Ltd Vs Emily Nyangasi [2017] eKLR
On the specific sum the court was referred to Benard Bisonga Sungura & another Vs Lucas Oyolo Owino [2020] eKLR for the proposition that general damages for the soft tissue injuries range between Ksh 90,000 & 220,000.
On whether the court should interfere with the lower court’s decision – the court was referred to Gitobu Imanyara & 2 Others Vs AG. [2016] eKLR .
(32) The court was urged to dismiss the appeal.
ANALYSIS AND DETERMINATION
(33) I have carefully considered the Record of Appeal, the evidence before the trial court, the Memorandum of Appeal, the Submissions below and before me - the issues that arise from determination are:-
1) Whether the plaintiff/1 st respondent established liability against the appellant.
2) Whether the court should interfere with the award of General Damages awarded by the trial court.
On the 1 st issue it is not disputed that the motor vehicle herein was on lease agreement between the appellant and the 1 st respondent for use by the National Police Service.
The appellant was the registered owner and the insured. The National police service was user and t
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