REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

(CORAM: R. MWONGO, J)

CIVIL APPEAL NO. 19 OF 2016

ANTHONY NJIRWA…………………………………………….…...…... 1^ST APPELANT

KENYA SCHOOL OF LAW..…….…………………………………..…..2^ND APPELANT

VERSUS

MARTHA NGONYO WAITHAKA…….….…………………………….. RESPONDENT

(Being an appeal from the Judgment and Decree dated 11^th March 2016, in Naivasha CMCC No 741 of 2009 - Hon S Muchungi, RM )

JUDGMENT

1. Following a road traffic accident on 7^th January, 2009, the respondent suffered injuries for which she filed a plaint in the lower court. As a nurse on night shift, she was travelling home from work having been given a lift in vehicle registration No GK A 132G. The vehicle was involved in an accident with the 2^nd appellant’s vehicle registration No KAT 389X driven by the 1^st appellant.

2. During the course of the proceedings, Traffic Case no. 1556 of 2009 against the 1^st Appellant was decided. There, the trial magistrate acquitted the 1^st Appellant for failure of the prosecution to establish a prima facie case against him. However, in the civil proceedings the trial magistrate held the appellants wholly liable for the accident in her judgment dated 11^th March 2016.

3. From the proceedings in the lower court, two witnesses gave evidence for the plaintiff. The plaintiff, herself, and PC Fred Gitare of Gilgil Police Station.

4. The plaintiff, PW1, gave evidence thrice. The first time was on 7^th September, 2012 when she stated that she did not see how the accident happened and she only heard a loud bang. The second time was on 27^th February 2015, when she said she saw a motor vehicle speeding towards them and then heard a loud bang. On this second day of her testimony, her advocate requested that she be stood down because there was no flow in the evidence, and he sought a new date for a fresh hearing. The third time she gave evidence was on 9^th October, 2015. She testified then that she saw a motor vehicle, KAT 389X overtaking a lorry as it approached then it collided with the vehicle she was in, GK 132G..

5. PW2, PC Fred Gitare, stated that he perused the police file on the accident and the driver of the KAT 389X was found by the investigating officer to blame. He produced the Police Abstract. He admitted that he was not the one who investigated the accident.

6. The defendants gave evidence through Anthony Njirwa, the driver of KAT 389X. He stated that as he was driving at Gilgil weighbridge, on a two way road, he met with the GK vehicle overtaking a trailer. He saw it when it was at a distance of 100metres away. As it was on his lane, he slowed down and swerved to the left. The GK vehicle also swerved to the left. So he swerved to the right, and it also swerved back, and it then hit his vehicle. He said he was later acquitted in the traffic case.

7. The appellant argues that the evidence availed by the prosecution was not sufficient to enable the trial magistrate to make any finding of liability against the respondents. This appeal therefore focuses on liability as quantum is not in issue. From the grounds of appeal, the appellants set out the issues for determination as follows:

“a) Whether the learned magistrate erred in both fact and law by entering   judgment against appellants without due regard to the pleadings and evidence?

b) Whether the learned magistrate erred by failing to consider the evidence of the police officer?

c) Whether the learned magistrate erred by failing to consider the 1^st Appellant’s testimony?

d) Whether the learned magistrate erred by failing to pay regard to Naivasha Traffic Case No. 1556 of 2009?

e) Who should be awarded costs?”

8. In the lower court the plaintiff, in submissions filed on liability and quantum had pointed out that there is conflicting evidence from both sides, and that in such circumstances the way out was to go by the evidence of the police who blamed the 1^st defendant charged him with a traffic offence.

9. On their part, the appellant points to the fact that the respondent clearly stated in her evidence:

“… I can’t tell how it happened. I just heard the noise as if the vehicles had collided …”

The appellant argues that in light of this evidence the lower court was not entitled to find that the respondent’s evidence in the lower court was, on balance of probabilities stronger than the appellant’s evidence.

10. The Appellants annexed to the Record of appeal a ruling in Traffic Case No 1556 of 2009, wherein the 1^st appellant was acquitted. They rely on this case to show that the prosecution failed to establish a prima facie case against the 1^st appellant. The appellant is of the opinion that the magistrate in the civil case should have taken in to consideration the acquittal and not found the Appellants liable for the case. In her judgment on this point, however, the trial magistrate stated:

“The defendants produced a ruling in the traffic matter which shows that the driver was acquitted under section 210 of the CPC. The entire proceedings were that the entire proceedings were however not placed before the court to determine what each individual witness stated.

I have gone through the ruling an among the reasons given by that court for the acquittal were that the driver of the NYS vehicle even after admitting seeing the approaching vehicle did nothing to avoid it. The court on that account held that he too was guilty of omission….

Whereas the ruling cannot be faulted, it is noteworthy that the standards of proof differ in civil matters and other matters of a criminal nature. The fact that the first defendant was acquitted of the offence of careless driving especially based on the cited reasons, it does not mean that he should be absolved from any liability” (emphasis supplied).

11. It is clear that the trial magistrate took into account the evidence and information availed to her. In my view, she treated it extremely ably in reaching her conclusions.

12. The appellants sought that this court should look at the file in the traffic case. However, the proceedings in that file were not produced at the trial in the lower court, and neither was the detailed evidence from the criminal trial placed on record for analysis by the trial magistrate as part of the trial material in the personal injuries case in the lower court. Further, there have been no submissions placed on record herein regarding the material in the criminal trial.

13. To that extent, what is left of the appellant’s case is the argument that the acquittal in the criminal case ought to have been taken as an absence of proof in the civil trial. On this point, the case of Joseph C. Mumo v Attorney General & Another [2008] eKLR  the is apt where the court stated that: 

“It agrees entirely with the prosecution that an acquittal on a criminal charge is not per se basis for a civil liability.  This is so because the standard of proof in both jurisdictions is different in the first instance.  In the second instance, the court seized of the Civil Jurisdiction may it be subordinate or superior is never bound by the decision of the court that had been seized of the criminal proceedings.  As noted earlier on the standard of proof is different and the court seized of the civil proceedings is entitled to re-evaluate the evidence on its own and arrive at its own decision as to civil liability on a balance of probability.…”

14. Further in the case of Philip Keipto Chemwolo & Mumias Sugar Co. Ltd v Augustine Kubende [1982-88] 1 KAR 1036 at 1039-1040, it was mentioned that;

“… it is further submitted that the standard of proof in a traffic case is beyond reasonable doubt  despite conviction and that conviction is not conclusive proof that the defendant is fully to blame. ..”

15. The Magistrate in the lower court stated that she had considered the evidence on record before her, including the testimony of the Police Officer which, in her view, corroborated the plaintiff’s testimony. That officer was called to produce the abstract report. He testified that from the police records, the driver of the Toyota Prado was found to blame and there was a recommendation that he be charged since he tried to overtake at a continuous yellow line and in so doing collided with the GK vehicle.

16. The appellants’ true position is that they place the blame for the accident on the driver of vehicle registration number GKA 132G Land Cruiser. The driver stated that they were driving from Nairobi heading towards Nakuru, and at Gilgil weighbridge, he saw the NYS vehicle heading towards Naivasha overtaking a trailer at a distance of about 100 meters away. He slowed down to allow it overtake but failed to. He swerved off the road to the left but it likewise swerved to the left. When he swerved back to the road, the other driver reacted in the same manner and as a consequence his vehicle was hit. He produced photographic evidence intended to show that his vehicle was hit on the left side. The trial magistrate dealt with that evidence as follows:

“The first defendant in producing the photograph of the Toyota Prado wanted this court to believe that it was hit from the left side since according to him, damages are on the left. Look at the photograph though shows the front parts including the bonnet were damaged further, in my opinion, only one view of the vehicle cannot show the damages of the entire vehicle. An inspection report or at least more photographs would have been vital to make this court come to such a conclusion”

In my view, the trial magistrate again deftly dealt with the appellant’s claim in the lower court.

17. The appellant’s submissions in the lower court included a complaint questioning why the plaintiff did not enjoin the driver of GKA 132G in the suit. That complaint sought to spread the risk of liability and was in the following terms:

“…why the plaintiff preferred to solely sue the defendants hearing and not jointly with the driver and owner of motor vehicle registration number GKA 132G that she was travelling in…”

18. The trial magistrate properly responded to this issue by stating in her judgment as follows:

“The plaintiff sued just the two defendants because she believed they were solely to blame and distanced the driver of the vehicle she was in from blame it is therefore upon the defendants you they felt that any other person was to blame but from them to seek the leave of the court to bring them on board for the issue of liability to the determined between them and the third party. This was not done”

19. The trial court then noted that the only defendants in the suit were the appellants and she cannot proceed to give a judgment against a party that is not party to the suit. On the question of joinder, the case of Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] eKLR is instructive where Gikonyo, J stated:

“In any case, the said third party is not a party in the suit and no claim has been laid against it by the Plaintiff or the Defendant. In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the Defendant, and cannot be a bona fide issue triable between the Defendant and the Plaintiff. On the basis of those legal reasons, even if the third party had been joined, which he has not, it is not a triable issue at all for purposes of liability between the Plaintiff and the Defendant.”

20. For all the foregoing reasons, I would answer issues (a) to (d) above, which were for determination, in the negative. Accordingly, I am satisfied that the trial court did not err in any manner in reaching the decision which it did.

21. Accordingly the appeal is dismissed with costs.

22. Orders accordingly.

Dated and Delivered at Naivasha this 20^th Day of December, 2018.

_____________________________

RICHARD MWONGO

JUDGE

Delivered in the presence of:-

1. Wairegi holding brief for Ochieng Onyango for the 1^st Appellant

2. Wairegi for the 2^nd Appellant

3. Mburu F. I. holding brief for Waigwa Ngunjiri for the Respondent

4. Court Clerk – Quinter Ogutu