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JudgmentSUPERSTAR PARCELS LIMITED VS ROBERT EGADIZE & 2 OTHERS28 min read

SUPERSTAR PARCELS LIMITED VS ROBERT EGADIZE & 2 OTHERS

High Court at Makueni High Court · · Matheka, Teresia Mumbua


(Being an appeal from the judgment and decree of the Principal Magistrate’s Court at Kilungu (Hon. C.A Mayambpa PM) in Kilungu Civil Suit No. 166 of 2019 as consolidated with Kilungu Civil Suit No. 173 of 2019 delivered on 13th August 2021)

JUDGMENT

  1. It was the case for the plaintiffs /respondents herein that on or about the 15th December, 2017 the deceased persons herein were lawfully travelling as a passengers in motor vehicle registration number KBK

763C. When the m/ reached Glorious Academy along  Nairobi-Mombasa road the Defendant/appellant’s  authorized driver, servant, employee and or  agent so negligently recklessly and carelessly drove, controlled and or managed motor vehicle registration number KBW 530K that he caused it to veer off its correct lane and violently collide/ram onto motor vehicle registration KBK 763 C extensively damaging it also causing the deceased to sustain severe bodily injuries, endured pain and suffered loss and damages and eventually succumbed to the injuries on the 15th December, 2017.

  1. The legal representatives of the estate filed suit in Kilungu MCCC 173 of 2019 vide plaint dated 12/7/2019, amended on 14/4/2021 and 166 of 2019. On 19/03/2021 – parties entered into a consent where the 1st plaintiff became the 3rd party and two suits – CC 166/2019 and 173/2019 were consolidated.
  2. The plaintiffs sought:
  3. General damages under the Fatal Accident Act under the Law Reform Act, special damages and Costs and interest
  4. This was on the grounds that the plaintiffs blamed the defendant for the Road Traffic Accident, relied on the doctrine of Res Ipsa loquitur and pleaded –
  • As a consequence of the said accident, the deceased sustained serious injuries and later died and their respective seates suffered loss and damage.

The plaintiff’s claim against the defendant is for general damages and special damages under the Law Reform Act and Fatal Accident Act for the benefit of the estate of NATALIE WANGAREH MWALE the deceased at the time of her death was aged 6 years, she was in good health and with good prospects in life and aspired to be a teacher earning Kshs.35,000.00 a month and her parents set out as the dependants had suffered loss of dependency under the Fatal Accident Act as a result of his death.

Particulars of special damages were set as;                                Kshs.31,710 made up as follows

  1. Funeral expenses – Kshs.30,000/=
  2. Copy of records -                    550/=
  3. Letters of administration       1,160/=
  4. The defendants, the 3rd party filed their statements of defence each denied the Road traffic accident, denied any negligence on their part and blamed each other. The defendant specifically denied that the doctrine of res lpsa loquitur was applicable.
  5. After a full trial, the learned trial court found the doctrine of res ipsa loquitur was applicable, that the defendant and 3rd party were equally liable for the accident and made the following awards.

“31. I do, having considered all the facts herein find that Kshs.1.2 million will be an adequate compensation for loss of dependency, having taken into account that deceased was 20 years old and the prime of her life; thus, her loss was enormous and the award is commensurate. For avoidance of doubt on loss of dependency; Civil Case No. 166 of 2019; Kshs. 1,200,000.

32. Special damages

The plaintiff in her pleading prayed for Kshs.31,710 in Civil   Case No. 166 of 2019. In establishing her case, she tendered no receipts. I do award Kshs. 0 in special damages.

33. Costs and interests

The plaintiff shall be entitled to costs and interest of the suit. In regard to interest and in regard to the general damages, the same shall run as at the date of this judgment.

     34. Conclusion

    I do make the following orders;

    In Civil Case No. 166 of 2019

  1. Liability 100% apportioned at 50% to 50% to defendant and the third party.
  2. Pain and suffering Kshs.30,000/=
  3. Loss of expectation of life Kshs. 100,000/=
  4. Loss of dependency Kshs. 1,200,000/=
  5. Special damages – Kshs.0
  6. Defendant – Kshs. 665,000/=

Third party – 665,000/=

  1. Costs and interest

Civil Case No. 173 of 2019

  1. Liability 100% apportioned at 50% to 50% to defendant and the third party.
  2. Liability 100% apportioned at 50% to 50% to defendant and the third party.
  3. Pain and suffering Kshs.30,000/=
  4. Loss of expectation of life Kshs. 100,000/=
  5. Loss of dependency Kshs. 1,200,000/=
  6. Special damages – Kshs.0
  7. Defendant – Kshs. 665,000/=
  8. Third party – 665,000/=
  9. Costs and interest
  10. Aggrieved, the appellant filed this appeal on the following grounds:
  11. The learned magistrate erred in law and fact in giving a judgment that did not tally with the evidence presented by the parties and their witnesses.
  12. The learned magistrate erred in law and fact by stretching of the doctrine of res ipsa loquitur to find liability on the part of the appellant when the appellant had discharged the burden of demonstrating that its driver was not negligent and did not contribute to or cause the accident.
  13. The learned magistrate erred in law and fact in mixing up the owners and drivers of KBW 530K and KBK 763C by finding that the 3rd respondent herein (the third party in the trial) was the driver of KBW 530K and that KBK 763C was under the ownership of the appellant.
  14. The learned magistrate erred in law and fact in finding that KB 530K was coming from the Mombasa direction and KBK 763C was coming from the Nairobi direction when the evidence from all the parties clearly showed that the converse is what was true.
  15. The learned magistrate erred in law and fact in holding that the driver of KBW 530K did not slow down despite evidence to  the contrary.
  16. The learned magistrate erred in law and fact failing to find that the driver of  KBW 530K was not negligent.
  17. The learned magistrate erred in law and f act in finding that KBW 530K was hit by a bus and swerved into the path of KBK 763C when the converse is what is true.
  18. The learned magistrate erred in law and fact in treating the appellant and the 2nd respondent the same in regards to liability yet the evidence presented clearly demonstrated that the appellant had no fault in the circumstances because KBK 763C was flung to the lane of KBWK by the bus and the driver of KBW 530K both braked and swerved to avoid a collision with KBK 763C.
  19. The learned magistrate erred in law and fact in his application and interpretation of the authorities he relied on in his judgment to apportion liability at 50:50 between the appellant and 3rd respondent.
  20. The learned magistrate erred in law and fact by excessively assessing damages.
  21. The learned magistrate erred in law and fact in failing to apply the dependency ratio to the award of loss of dependency.
  22. The learned magistrate erred in law and fact in failing to fathom the submissions and authorities by the appellant.

Praying for orders:-

  1. That this appeal be allowed and the judgment of the lower court be set aside.
  2. That the suit against the appellant in the lower court be dismissed in its entirety.
  3. That the court be pleased to re-assess and thereby reduce damages assessed by the lower court.
  4. That the costs of this appeal and the lower court be borne by the respondents herein.
  5. Any other or further relief the honourable court shall deem fit and just to grant.
  6. Parties proceeded by way of written submissions.
  7. The appellant in their submissions withdrew the grounds challenging the assessment of damages: -
  • The learned magistrate erred in law and fact by excessively assessing damages.
  • The learned magistrate erred in law and fact in failing to apply the dependency ratio to the award of loss of dependency

Leaving only the issue of liability for determination. It is the position of the appellant that the evidence on record exonerates the appellant from any liability and relied on their submissions in the lower court.

  1. The appellants version of how the road traffic accident happened is summarized thus;–
  2. Toyota Vitz KBK 763C driven by 3rd respondent is travelling from Mombasa headed to Nairobi at around 11:00 pm.
  3. There is an oncoming trailer KBW 530K (hereinafter “the trailer”) headed from Nairobi to Mombasa and driven by the appellant’s driver.
  4. Behind the trailer is a bus with unknown registration number to date (hereinafter “the bus”).
  5. The bus carelessly overtakes the trailer and in the process collides with the Toyota Vitz which is sent spinning and skidding off the road and then back into the road and across the lane for oncoming vehicles. In the meanwhile, the bus

flees from the scene with its registration number never to be identified.

  1. The Toyota Vitz ends up f acing the direction it came from (Mombasa) and collides with the trailer while the trailer is in its lawful lane as the trailer is facing the Mombasa direction.
  2. The damages to the Toyota Vitz are on the left side (passenger side)
  3. The appellant quotes from the  initial police report in the Occurrence Book extract stating (DEX 5):

Fatal Road Traffic Accident:

This is a fatal accident which had occurred along Nairobi-Mombasa road near Glorious Academy involving motor vehicle registration number KBK 763C make Toyota Vitz and motor vehicle registration No. KBW 530K/ZE 4753 make M/Benz Axor. Motor vehicle registration No. KBK763C make Toyota Vitz was driven by one Daniel Shavanga Mwale and on board was his family who were heading towards Nairobi direction and on reaching at the scene of accident his car was hit by unknown bus which did not stopped (sic) after the accident and then the said car landed to the right side when it collided with motor vehicle registration no KBW 530K/ZE make M/Benz driven by one Antony Mwalo Okwonyo and he was heading towards Mombasa

direction. The driver of the said trailer remained to his lane but off the road and the vehicle registration no. KBK 763C make Toyota Vitz was on the right lane while facing Nairobi and the said car damage was on the left side.

  1. Counsel submitted at length on the facts on how the accident happened. Counsel also submitted that the learned trial court mixed up the motor vehicles is its judgment a clear indication that the court did not appreciate the facts of the case, and that the doctrine of res ipsa loquitur was misapplied.
  2. The position of the appellant is that the 2nd respondent was travelling from Mombasa to Nairobi, the appellant from the opposite direction. A bus which fled the scene overtook the appellant’s motor vehicle and clipped the 2nd respondent motor vehicle sending it into a spin – which flung it into the path of the appellant’s motor vehicle. That there was nobody the appellant’s driver could have foreseen this – and he slowed down – but the spinning motor vehicle crashed into his motor vehicle.
  3. The bus fled the scene. That there was nothing the appellant‘s driver could have done other than what he did – slow down, and swerve to the left in his lane. That would explain why despite being present in court at the 3rd respondent Mr. Daniel Shavanga Mwale shied away

from taking the witness stand because of the threat of stinging cross examination from the appellant’s counsel concerning his prior inconsistent statements.

  1. It was submitted for the appellant that on the question of liability therefore, the motor vehicle to substantially blame was the bus, and that the third respondent driving the Vitz was also to blame. That the trailer driver had no blame for the accident whatsoever and sought to be absolved absolutely. The appellant relied on Isaac Kingangi M’Ithai –vs- Ngari Thitu & Another (2018) e KLR on the considerations before making a finding on causation and liability:

“In Peter Shirau Amakobi –vs- Republic (2017) e KLR it was stated:

I need to consider the issue of ‘causation’ given that the appellant action did not directly cause the injury to the complainant. Causation provides means of connecting conduct with a resulting effect. This is a consideration of whether the defendant’s conduct or omission cause the harm or damage. In doing so, ‘but for’ test should be invoked. The question here is, ‘but for’ the actions of the defendant would the result have

occurred? If yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is

liable as it can be said that his action was a factual cause of the result.”

32. Further the court stated as follows:

“On the issue of determination of liability in road traffic accident, the court of appeal proceeded to state:

“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley V Gypsum Mines Ltd (2) (1953) A.C 663 at 681 as follows:

‘To determine what cause d an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is  quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it ………………………

The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and

those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

34. It was submitted further that it is settled that where two adverse drivers are found to blame for an accident and it is not possible to determine who between them is to bear the higher proportion of blame, then both are equally to blame.  It was argued that the was not the situation in this case. Here both parties attributed the higher proportion of liability to the bus. The bus having fled the scene could not be the basis of attributing liability to the appellant’s driver simply because he was the person left at the scene of the accident after the bus disappeared. It was also submitted that the appellant attributed liability to the 3rd respondent and had demonstrated how that liability arose. The appellants position is that the bus, at the minimum, ought to be found liable, and that the 3rd respondent was also liable.

35. It was argued that it was astonishing that the 2nd and 3rd respondent asserted through Pw2 that the driver of the heavy trailer should have been able to outmaneuver the Vitz being flung towards

the trailer, yet the driver of Vitz himself was not able to move away from the path of the bus which he could see was clearly headed towards him in his lane. That the question was which driver was faced with the more difficult situation? Was it the 3rd respondent who would have simply veered to the left and let the bus pass or the driver of the trailer who was faced with a spinning and skidding vehicle being thrown flung towards him? It is submitted that the clearly the driver of the trailer is the one who had a more difficult task. That the 2nd respondent’s and 3rd respondent’s account was therefore internally inconsistent and not credible.

  1. 36. Counsel submitted that the trial court had misapplied the Court of Appeal decision of Jimnah Munene Macharia –vs- John Erera at paragraph 22 of its judgment by finding both drivers 50% liable. That the trail court failed to be guided by the authority he had just cited at paragraph 21 of the judgment of Njuguna F Macharia vs- Josephat Mathia which was to the effect that:

“the presumption that both drivers are equally liable only applies where there is no concrete evidence to distinguish between blame worthiness or otherwise of the two drivers”.

  1. For the 3rd respondent it was  submitted:

That in the assessment of liability, there are two elements causation and blameworthiness; that from the evidence that was adduced before the trial court from all parties, it was clear the accident in question was caused when the appellant refused to give way to the 3rd respondent’s motor vehicle causing the accident. That the the respondent was a passenger in motor vehicle registration number KBK 763C. That on the element of blameworthiness, the 3rd respondent urged the court to find that the appellant was negligent and thus to blame for the occurrence of the accident on the grounds that

  1. He failed to keep any or any proper outlook.
  2. He drove motor vehicle registration KBW 530K at a speed that was too fast in the circumstances.
  3. He failed to have any or any proper control of the motor vehicle registration number KBW 530K.
  4. He failed to break, stop, swerve, slow down or in any other manner manage or control the said motor vehicle registration umber KBW 530K so as to avoid the accident subject matter.
  5. It was further submitted that: Pw1 who was the 2nd respondent admitted during cross examination that she was at the scene of the

accident when the accident in question occurred. Therefore, any evidence by her, regarding the occurrence of the accident was not only admissible for reason of being firsthand but also authentic and, as such, the same could be given weight as she was an eye witness. It is submitted that the PW2 further testified that there were two vehicles which were coming from the opposite direction that appeared to be competing against one another in overtaking and as the 3rd respondent tried to swerve his motor-vehicle to avoid a head-on collision with the “unknown Mombasa bus” he was hit by the appellant’s motor-vehicle which did not slow down or give way to the unknown bus to overtake therefore occasioning the accident.

  1. That the appellant’s driver testified that an unknown bus was overtaking his motor vehicle and he noticed that there was an oncoming motor vehicle and that was the 3rd respondent’s m/vehicle that was being driven in the opposite direction and failed to give way to the unknown bus.. That on cross examination the appellant’s driver confirmed that the accident could not be blamed on the 3rd respondent. That the police officer who was a defence witness confirmed that he was not the investigating officer and did not visit the scene of the accident and could not give a proper account of what happened. It is argued that the appellant did not

produce any evidence against the 3rd respondent on liability and relied on: Quest Resources Limited V- Japan Port Consultants Limited [2015] e KLR where the High Court in deciding on the law on legal burden of proof and evidential burden of proof referred Winfred Nyawira Maina V- Peterson Onyiego Gichana where the court stated that:

“I think the foregoing justifies a little rendition on evidential burden for a fuller understanding of the decision of the court in this matter. The way I understand the law, the term burden of proof, entails the legal burden of proof an evidential burden. The two terminologies are most of the time misunderstood; albeit distinct. I am concerned mostly with the evidential burden which initially rests upon the party bearing the legal burden, but as the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence. See HALSBURY’S Laws of England, 4th Edition, vol. 17. Therefore, the applicant must first lay prima facie evidence against the respondent if evidential burden is to be created on the shoulders of the respondent. In simple terms see what the Supreme Court said in the case of Raila Odinga V- IEBC & 3 Others [2013] e KLR

that:-“… a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden”.

  1. It was argued that indeed the error on the part of the trial court was to place blame on the 3rd respondent – yet the appellant was 100% liable.
  2. On their part the 1st and 2nd respondents framed the issue stating

The central issue in this appeal is the question as to whether the trial court was correct in finding the appellant and the third respondent 100 percent liable in regard to the accident that happened on 15th December 2017 the subject matter therein in regard to the deceased plaintiffs, and whether the said trial magistrate was right in apportioning liability equally between the appellant and the respondent.

  1. The court was urged to find guidance in Selle V Associated Motor Boat Company Limited [1968] E.A 123, to retry the case from the court below and subject the whole evidence to a fresh and exhaustive analysis, in particular the evidence of the eye witnesses. 15. It is submitted that on analysis of the evidence before the court below it was evident that there was no concrete evidence of the parties of the suit as to who was to blame between the two drivers of

the accident motor vehicles which collided. That in their view the trial court correctly applied the legal principle enunciated by the Court of Appeal in Hussein Omar Farah vs- Lent Agencies Civil Appeal No. 74 of 2005 (2006) eKLR where it held that: If there is no concrete evidence as to who is to blame between two drivers both drivers should be held equally to blame”.

  1. Further they submit that the trial magistrate’s finding that the third respondent and the driver of the appellant were equally to blame as drivers for the occurrence of the accident in question was based on sound consideration of the above principle and the evidence on record. That the trial magistrate considered and correctly applied the decision of appeal and in particular the trial magistrate considered and correctly applied the decision of the court of appeal in the case of Njuguna Macharia V Josphat Mathia Mwihia and Other Civil Appeal No. 189 of 1999 where it was held that “The presumption that both drivers are equally liable only applies w here there is no concrete evidence to distinguish between blame worthiness or otherwise of the two drivers”.
  2. Further they submit that if one was to ask the pertinent question as to w whether there was any contributory negligence on the part of the drivers of the two motor vehicles which collided, the

inescapable answer would be in the affirmative. That the appellant successfully applied to join the third respondent as a third party to the suit and filed pleadings in the trial court where it blamed the third party wholly and or substantially for negligence in the accident. That during trial and in its submissions the appellant appeared to be shifting blame from the third party and itself and instead blaming it all on the driver of the unknown bus who was not made a party to the suit, a significant departure from its earlier stand.

  1. Further that in the proceedings before the court below none of the parties lead concrete evidence on the unknown bus and its driver and that even the police officer who testified in court and claimed that the accident was caused by a hit and run driver of the unknown bus admitted in cross examination that he did not witness the incident and was not the investigating officer in the matter.
  2. That the 1st and 2nd respondents take the view the trial magistrate was right when he stated that he was not convinced with the evidence, that the trial magistrate had an opportunity to observe the demeanor of witnesses who appeared before him and that his discretion was based on this observation; that on appeal the court will have no jurisdiction to overturn the same unless it is

demonstrated and which the appellant has not that such observation was based on no evidence before the court.

  1. I have carefully considered the foregoing submissions. The only issue as framed by the appellant is whether the trial court was right to find that the appellant and the 3rd Party were equally to blame for the accident.
  2. There were two eye witnesses to the accident.
  3. Pw1’s testimony was stated thus in her statement;

“I recall on the early afternoon of the 15th December 2017, the third party, Daniel Mwale my husband other family members and myself set off in my husband’s motor vehicle registration No. KBK 763C by road to Nairobi from Mombasa where we had been living and dwelling for over five years. My husband and I had decided to relocate to Kiambu county, Thika town after he secured a job in the environs of Thika town. My said husband was the one driving. Our journey went on very well and we were moving at an average speed of 70 KMkm/hr. I am also a competent driver and thus able to tell the speed at which we were driving. We had a stopover at Mtito Andei where we took a rest to refresh. The other passengers in the aforesaid motor vehicle were my daughter by then 6 years old Natalie

Wangareh, son by then 1.8 years old Nathan Imoli, my niece by then 20 years old, Lyn Jahenda nephew by then 9 years old , Kelly Davidson Masela and 3 years old Emmanuel Baraka and  his mother Irene Khamuru. All along to Mtito Andei I was sitting in the front seat as the co-driver but after the stop over at Mtito Andei I moved to the back left seat to attend to the baby.

  We again had a quick stop at Malili town before embarking back on the road. It was just a few minutes after the last stop that I noticed some oncoming vehicles towards us on our lane. They were overtaking each other. It all seemed fine until the distance was too close to our said vehicle and the oncoming vehicle was not giving way to allow our vehicle to pass. The distance was too close such that the driver of our vehicle was not able to slow fast enough to avoid a head-on collision neither was there enough room for the oncoming vehicle to do a successful overtaking without colliding with our said vehicle head-on. Furthermore, the oncoming vehicle had its full lights on, barring the visibility of where the start and end of the road really was at this point.

  1. In court she stated:

“Daniel lost control and was unable to maintain the same. I lost consciousness. I blame the vehicle which was overtaking. It was the bus trying to overtake. The trailer is the one which was refusing to be overtaken. I blame the truck for refusing to slow down to allow overtaking. Lynn (deceased was 20 years old). She was my niece. She was a girl with a hopeful life. She was the first born in their family.

On Cross examination she stated;

Yes, the vehicle had 8 passengers being children. Yes, the oncoming bus had full lights. Yes, I blame both the bus and the lorry. Yes, the first hit was behind. I came to learn that it was the truck which hit us the second time. After being hit, our vehicle lost control and went to the sand out of the road before being hit by the truck. It took few seconds for us to have a hit, about 30 seconds. Yes, the damage on Vitz was on the passenger’s side with the same headed on the same direction with truck…

Yes, it was at night. Yes, I saw both vehicles which were speeding. The truck was refusing to give way. I could not tell the time before the accident. I don’t know who hit us from behind. Mr. Daniel

swerved to extreme left to avert the accident. He tried to avoid accident. The children inside the vehicle were 4 in number.

On Re-examination she stated;

The children were 4. Adults were Daniel Mwale, Lyne, Irene and myself. Minors were between 6 years. Natalia was carried by Lynn. I was carrying Nathan who was 1 year old. Irene was carrying a very young child Baraka. The head on could have been with the bus, forcing our vehicle to swerve to the left, before force took us back to the road prompting a hit on the passenger’s side.

  1. The appellant’s driver on the other hand stated in his statement that:

-He left Nairobi at around 10:00 pm carrying a container on a trailer while headed to Mombasa,

  • He was driving at around 60-70 kilometres on average at the beginning,
  • At Glorious Winners Academy a few kilometers from Salama area, he saw a car coming from the opposite (Mombasa) direction heading towards Nairobi,
  • It was a small white vehicle,
  • Just before they passed each other, a Coast bus which was behind him and heading in the same direction as himself overtook him carelessly,
  • The small vehicle did not manage to move out of the road in good time and the overtaking bus appeared to him like it hit the small vehicle at the rear right side and immediately the small vehicle was spun around and while skidding was thrown into his lane and struck his car on his front right hand corner,
  • He had reduced his speed as he was going uphill and thus he was able to veer his car to the left side off the road to try and avoid the spinning and skidding small vehicle.
  • The small vehicle however was thrown into his path too quickly and it stuck his vehicle. The small vehicle struck his vehicle as it (the small vehicle) faced the Mombasa direction as a result of spinning around and the small car was hit on the left hand side.
  • After the impact he came out and observed that there were several people in the small car and assisted them to get out.
  1. In court he told the court:

“Yes I was headed to Mombasa. I was driving at a speed of 60km/hr. I could control the vehicle. Yes I saw Vitz coming from the opposite direction. I saw Vitz at a distance of about 50 metres away. Yes, we were coming from the same direction with the bus. When being overtaken, I saw Vitz at about 25 meters. Yes the bus had to come to the lane of Vitz. I swerved to allow the bus pass. It was a highway and I slowed down. Yes, I moved to about 30km to 40km. I could stop as I was hit from behind. I was not moving at a high speed. There was a ditch which prevented me from going completely off the road. I cannot estimate the depth of the trench. I moved into the ditch. I was going slope wise. Yes, it was a straight road. The incident happened very fast. I did not see the driver of Vitz dimming the lights. The bus was moving at a high speed of about 80km/hour. I had not put free gear on. I braked to reduce speed. There was no skidding by my truck but I braked. I had to slow down. My vehicle was carrying books. I am not blaming the Vitz car as he was removed from the road. The ditch was no far from the tarmac road of about 3 metres. I don’t know the width of the ditch. The other side had sand and stones. The bus touched the Vitz at the driver’s side. The bus touched the Vitz at the driver’s side. The bus touched the Vitz at the right side but it did not stop. I did not see the number plate of the bus as it was at night. I was concentrating on the Vitz as it was spinned. Yes  my vehicle was inspected. My vehicle did not have pre-accident defects. I don’t know when Vitz was inspected. the tarmac did not have a pothole. Yes the Vitz speeding had some marks. My vehicle was damaged on the right side.

On Cross-examination he stated:

The accident happened as we approached Glorious Academy. There was a slope. I was going down at a flat area. I had not seen the Vitz but we met at the flat section. ;yes, the driver of Vitz swerved to the left off the road. I also swerved to the left and was stopped by the hill. I was hit by Vitz while I was off the road. The Vitz banged me before stopping on my right side and not the left side. It is not true that it hit me all the way to the rear and stopped at the rear. It did not stop at the back. My sketch map shows that I did not leave the road. Yes, I recorded my statement after one year. Yes, the driver of the Vitz was not a fault. I cannot tell whether the bus hit me.

On Re-examination he stated:

Yes, the Vitz came spinning round. The Vitz swerved to the left side. I cannot tell whether Vitz was hit by the bus. It is the Vitz which was hit all the way to its rear. My vehicle was carrying 10 tonnes. An immediate brake on a trailer will lead to the trailer hitting the cabin. The tyres of my vehicle were okay.

  1. The only other eye witness, the 3rd party did not testify yet he was the driver of the Vitz.
  2. It is upon this evidence that the issue of liability turns.
  3. Three motor vehicles were on the road at the material time.
  4. The Vitz headed to Nairobi. The bus and the trailer headed to Mombasa.
  5. It is common ground that the bus was overtaking the trailer. That the bus was at some speed higher than the trailer and the Vitz.
  6. According to PW2 who was a passenger in the Vitz, there was a m/v overtaking another It is evident that neither the driver nor the driver of the overtaking m/vehicle slowed down because she states: It all seemed fine until the distance was too close to our said vehicle and the oncoming vehicle was not giving way to allow our vehicle to pass. The distance was too close such that the driver of our vehicle was not able to slow fast enough to avoid a head-on collision neither was there enough room for the oncoming vehicle to do a successful overtaking without colliding with our said vehicle head-on. Furthermore, the oncoming vehicle had its full lights on, barring the visibility of where the start and end of the road really was at this point. 
  7. It is clear from this that the Bus and the Vitz were each sticking to their lane despite the danger posed by the fact that there was an imminent head on collision. The bus would not nudge, and the Vitz stuck to its rightful lane until it became too late to get off the road safely. By the time the driver of the Vitz was making the decision to avoid the bus bully it was too late and the bus hit their m/vehicle as they were by passing each other.
  8. The driver of the Vitz lost control.
  9. What followed is clearly described by the 2nd eye witness, that the Vitz lost control spun into its lane crushing into the trailer. And this is supported by the police records.
  10. How then would the trailer be blamed for the accident yet the Vitz found it in its lane when it lost control and went into the path on the oncoming trailer?
  11. Evidently the oncoming bus was overtaking when it was not safe to do so. It is not clear what PW2 meant when she stated that the trailer was refusing to be overtaken, yet the driver said he was going upslope with a loaded trailer, had slowed down and was driving at an average speed of 60/70 KMPH. The overtaking m/v was obviously moving at a faster speed than the trailer because it was overtaking. It had its full lights on and the visibility of the driver of the Vtz was obscured as the PW2 could not see where the edge of the road was. Hence when the Vitz swerved, a bit too late, to avoid the head on collision it also hit some sand that was off the road, losing control  and was at the same time swiped by the speeding  bus.
  12. The Vitz appears to have maintained its speed despite the oncoming bus. In the circumstances, from the eye witness on record it is true that the trailer collided with the Vitz after the Vitz swerved off the road, was hit by the bus, lost control and crashed into the trailer. It appears to me from the testimony on record the trailer was a passive participant in the accident, the bus had the higher blame and the Vitz driver had some blame.
  13. How then do we apportion liability? From the facts as presented, the trailer appears not to have had any participation in the happenstance of the accident. It was found by an ongoing accident.
  14. Everyone agrees that the bus came roaring down the road. It was a hit and run.  It is my view it bore 75% of the blame.
  15. The 3rd party on the other hand took 25% for not getting out of the road in good time to avoid the accident.
  16. In that event the finding of liability by the subordinate court is set aside and substituted with the following order: On liability:
  17. The Bus – hit and run- 75%
  18. The 3rd Party in the subordinate court ( 3rd Respondent in the Appeal Daniel Shavanga) - 25%
  19. The trailer(Appellant)-0%

50.The appeal succeeds with costs of the appeal to the appellant to be borne by the respondents.

Dated signed and delivered virtually on 30th May 2024

……………………………….

MUMBUA T. MATHEKA

JUDGE

NB: paragraphing distorted by the system

    SUPERSTAR PARCELS LIMITED VS ROBERT EGADIZE & 2 OTHERS SUPERSTAR PARCELS LIMITED VS ROBERT EGADIZE & 2 OTHERS