1.This is an Appeal from the Judgment of the Honourable Senior Principle Magistrate J Munguti, delivered on December 14, 2020 in Chief MCC NO 409 of 2016 in Kitui.
2.The cause of action in that suit arose from a traffic road accident which occurred on January 1, 2016 in Kitui Township near Fuse Club. The accident involved a motor cycle number xxxx, Honda said to belong to the Appellant. It was the 1st Respondent’s contention that he was lawfully walking along Kitui Township near Fuse Bar when he was knocked down by the Appellant’s motor cycle which he averred was ridden/ controlled in a negligent way that caused an accident that left him with severe injuries, car loss and damage. The 1st Respondent particularized his injuries as follows;
3.He sought compensation as follows;
4.In a defence dated November 11, 2016, the Appellant denied allegations levelled against it and claimed that the accident was caused by the 1st Respondent as a result of his own negligence which included failing to keep proper look out on the road, walking carelessly and dangerously without due regard to other road users, failing to keep to the correct side of the road and crossing the road without proper watch out. The Appellant also denied the applicability of the doctrine of res ipsa loquitur as pleaded by the 1st Respondent.
5.Upon trial the trial Court rendered its judgement on December 14, 2020 and found the appellant and the 3rd Party 2nd Respondent herein (Xplico Insurance Co Ltd) 100% liable and entered judgement against them jointly and severally. The 1st Respondent was awarded Kshs. 2 million in general damages, Kshs 44,400 special damages and Kshs 600,000 for future medical expenses. In total, the 1st Respondent was awarded Kshs 2,644,400 plus costs and interests.
6.The Appellant was dissatisfied with the trial court’s judgment on liability and quantum and it filed this appeal vide a Memorandum of Appeal dated February 11, 2021 on the same day raising the following grounds namely: -
7.Before I consider the grounds and submissions from both sides in this appeal, I will briefly set out the evidence tendered at trial.
8.Justus Mutunga Sila (PW1) the 1st Respondent stated that he was walking along Kilungya Street on the material day at around 6.00pm when he was knocked down by a motorbike. He stated that he was taken to Neema Hospital where first aid was administered before he was transferred to Kitui District Hospital from where he was referred to Aga Khan hospital where he was admitted for a period of two weeks for treatment of his broken legs. Upon his discharge from Aga Khan, he stated that he was referred to Makueni County Referral Hospital for physiotherapy management. He exhibited his discharge summaries from Neema Hospital, Aga Khan Hospital and Makueni County Referral Hospital and a medical report by Dr Kimuyu.
9.Thomas Muasya Ituku (PW2) a Clinical Officer stationed at Kitui County testified that he examined the 1st Respondent and also relied on treatment notes from Aga Khan hospital as he filled a P3 form on December 16, 2016 in reference to the 1st Respondent and classified his degree of injury as grievous harm. He tendered the P3 as an Exh.5.
10.Kennedy Mirara Mwangi (PW3) a clinical officer from Neema Hospital stated that the 1st Respondent was attended to at Neema Hospital on January 1, 2016 and was discharged on January 2, 2016. He tendered discharge summary as P Ex 1 and treatment notes as Exh. 7.
11.Miwa Kalovwe (PW4) told the court that he worked as a watchman at Fuse Bar and was on duty at the material time. That he heard the impact when the accident occurred and rushed to the scene where he found the 1st Respondent and the suit motor cycle. He stated that the 1st Respondent was hit while he was off the road.
12.Dr Mutunga Julius (PW5) from Machakos Level 5 hospital stated that he examined the 1st Respondent on May 10, 2018 and found that he was clinically stable but had surgical scars on both lower limbs. He also stated that the 1st Respondent had implants which would cost approximately Kshs 600,000/- to remove. He produced a medical report which was marked as PEXH.9.
13.The appellant on its part tendered no evidence in defence. He however, faults the trial court in its judgement on a number of issues.
14.The Appellant faults the trial court’s decision citing that the court fell into error by finding that the 1st Respondent’s evidence went unchallenged because the Appellant failed to call any witnesses. The Appellant submits that the 1st Respondent bore the legal burden of proving all elements of his case as imposed by the Evidence Act.
15.The Appellant further faults the trial court for considering materials which were not produced in evidence. It is submitted that the court’s finding that the 1st Respondent was admitted at Aga Khan hospital and also underwent physiotherapy in Makueni was wrong as documents from the two hospitals were only marked for identification but were never produced in evidence and that as such, they had no probative value. The Appellant has cited the Court of Appeal’s decision in the case of Kenneth Nyaga vs Austin Kiguta & 2 others (2015) eKLR where it found as follows;‘Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.’
16.On liability, the Appellant faults the trial court for apportioning liability at 100% against the Appellant and the 2nd Respondent jointly and severally. It has been submitted that the under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, 2nd Respondent had a statutory obligation to indemnify the 1st Respondent as it has insured the motor cycle. The Appellant has cited the case of Joseph Mwangi Gitundu v Gateway Insurance Co Ltd  eKLR where the court held that a contract of insurance is one of indemnity, in so far as claims by third parties are concerned and that the insurance has a statutory obligation to pay compensation judgement to third parties unless the liability has been avoided in accordance with the law.
17.This appeal is opposed by the 1st Respondent through written submission dated May 13, 2023 done through his Learned Counsel M/s Mulu and Co Advocates.
18.The Respondent supports the finding of the trial court adding that his case at the trial was proved to the required standard in law. He points out that the accident happened and that the appellant’s motor cycle was involved.
19.Secondly, he contends that the award of damages was proper in view of the injuries sustained and the costs of medical treatment received.
20.He submits that the appellant tendered no evidence to contest his claim at the trial court and therefore, liability cannot be contested. He further submits, that he has no issue with the appellant paying and claiming a refund from his insurance co-based on their contract of insurance.
21.This Court has considered this appeal and the response made. The role or mandate of this Court at this first appellate stage is basically to re-evaluate or re-assess the evidence tendered with a view to reaching own conclusions having in mind that the trial court had the advantage of observing the demeanour of interests as they gave their testimony during trial.
22.The Appellant has raised three issues for determination which are largely on liability and can be condensed as follows;
Whether the trial court considered the issues of law and fact raised by the appellant during the trial in its determination when apportioning liability.
23.Whether the issues raised on liability were consideredThe appellant faults the trial court in its finding that the 1st respondent’s case went unchallenged because of failure by the appellant to call witnesses. The Appellant has specifically pointed out what the trial stated in its judgement at paragraph 14 where the trial court posed;‘Who is to blame? According to the evidence available which remains unchallenged, the defendant and the 3rd Party are to blame 100%. Defendant for being negligent and the 3rd Party for failing tosettle the claim after being notified about the claim vide demand notices since they had insured the motor cycle’
24.I will leave the issue of the 3rd Party for now but I will come back to it shortly in this Judgement. I will address the question of the Appellant’s failure to adduce evidence in rebuttal to the Plaintiff’s claim and I will begin by addressing the question of legal burden and who bears the burden.
25.The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that;
26.The evidential burden of proof is captured under Sections 109 of the Evidence Act as follows;
27.It is apparently obvious flowing from the above that the 1st Respondent bore the burden of proof and once he laid out his case through evidence regarding how the accident and the particulars of negligence the evidential burden shifted to the appellant. The trial court was required to determine the question whether the burden had shifted because the burden does not shift automatically.
29.Similarly, in the of Mercy Mueni Mutuku v Susan Oyondi Ombogo  eKLR, Odunga J as he then was) held a similar view as follows;‘In this case there was evidence by the Respondent and her eye witness that the accident occurred on a foot path and the Respondent was hit from behind. There was no other evidence to challenge this evidence. Accordingly, what was pleaded in the defence without more could not form a basis upon which liability could be found. The learned trial magistrate cannot therefore be faulted for finding, based on the only evidence before him, that the Respondent had proved that the accident was caused by the motor cyclist for whose negligent the Appellant herein is vicariously liable and I find no justification for interfering therewith.’
30.I have perused through the judgement of the trial court and save for the finding that the 3rd party was liable which certainly was erroneous as I will show shortly, the trial court properly evaluated the evidence of the 1st Respondent on how he was walking on the road side and got knocked down by the Appellant’s motorcycle Registration No xxxx after the same reportedly veered off the road. The evidence by the 1st Respondent was supported by eye witness Miwa Kalovwe (PW4).
31.Besides the above, the 1st Respondent went on and tendered the copy of motor vehicle records from National Transport and Safety Authority indicating that the appellant was the registered owner of the subject motorcycle.
32.There was no evidence tendered to rebut the evidence placed before the trial court by the Appellant or the 2nd Respondent. The trial court in other words was not given a different version of what transpired that fateful evening to justify any criticism that it failed to consider the appellant’s case. In so far as the particulars of negligence pleaded and the evidence adduced in Court are concerned, there was no rebuttal from the appellant and the trial court was correct to find that the 1st Appellant was liable.
33.The 1st Respondent was able to prove that the accident was caused by motor cyclist for whose negligent the Appellant herein is vicariously liable being the owner of the motor cycle as provided under Section 8 of the Traffic Act which provides;
(ii) Whether apportionment of liability was erroneous
34.The Appellant has faulted the trial court for apportioning liability 100% against the appellant and the 2nd Respondent severally. The Appellant contends that this offends Section 10 of the Insurance (Motor Vehicles Third Party Risks Act) which provides. Although an insurer is under statutory duty to satisfy judgments against persons insured, the insured had to have been properly enjoined in the suit and directions issued with regards to liability of the insurance company.
35.A background of this matter is that the 2nd Respondent filed this suit on July 28, 2016 seeking for judgment against the Appellant. The Appellant entered appearance on October 3, 2016 but only filed a statement of defence dated November 11, 2016 following consent to set aside interlocutory judgment which was entered on November 3, 2016.
36.The Appellant also filed a chamber summons application dated August 15, 2017, seeking for leave to issue a Third Party Notice against the 2nd Respondent herein, Xplico Insurance Company Limited. The application was allowed and the Defendant issued a Third Party Notice dated August 24, 2017 which stipulated that the 2nd Respondent was required to enter appearance within 14 days after service. An affidavit of service by David K Kivindu sworn on September 5, 2017 indicated that the 2nd Respondent was served on August 29, 2017. A further, a copy of the Statutory Notice with a receipt stamp from the 2nd Respondent of August 29, 2017 is also contained in the court file confirming service. After a period of over one year, the 2nd Respondent entered appearance and filed a 3rd Party’s Statement of Defence dated January 24, 2019 without leave long after the hearing of the matter had commenced on March 21, 2018. So essentially the matter proceeded in default of appeal by the third party.
37.Order 1 rule 15 of the Civil Procedure Rules provides as follows;‘15.(1)Where a defendant claims against any other person not already a party to the suit (herein after called the third party(2)A copy of such notice shall be filed and served on the third party according to the rules relating to the service of a summons.’
38.Order 1, Rule 17 of the Civil Procedure Rules provides as follows;‘If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the 'third party') desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:Provided that a person so served and failing to enter an appearance within the period fixed in the notice may apply to the Court for leave to enter an appearance, and for good cause such leave may be given upon such terms, if any, as the court shall think fit.’
39.Further, Order 1 Rule 21 of the Civil Procedure Rules provides that;1.‘Where a third party makes default in entering an appearance in the suit, and the suit is tried and results in favour of the plaintiff, the court may either at or after the trial enter such judgment as the nature of the suit may require for the defendant giving notice against the third party:
40.The trial court in my considered view, fell into error by finding that, the 3rd Party was directly liable because it was not directly liable. It was simply an insurer who had insured the Appellant’s motor cycle. Going by the usually orninary Insurance Contract, its assumed that its role was only to indemnify the appellant in the event that hammer fell on it. There was no evidence placed before the trial court to demonstrate the privity of contract between the 3rd Party and the 1st Respondent or any other 3rd Party suffering damages in the event of an accident for which it had provided Insurance Cover.
41.Ordinarily, the 1st Respondent or any other owner of the vehicle would approach its insurer with a view to indemnity and in default of positive response, it has to pay and recover from its insurer. There is no way the 1st Respondent was expected to know the contractual arrangements between the Appellant and its insurance because he was simply not privy to the contract. So, in the same way, the 1st Respondent could not attribute any particulars of negligence to the 2nd Respondent and the trial court could in the same breathe find that the 3rd party was liable and should have stepped into the shoes of the appellant because of the doctrine of subrogation. The 3rd Party being the insurer could only step in after paying the claimant, that is assuming it had contracted to indemnify the 1st Respondent. To the extent that the trial court found the 2nd Respondent liable for the accident, it fell into error.
42.There is also one issue raised by the applicant which I find legitimate. It is the Appellants contention that the trial court relied on documents from Aga Khan Hospital as well as Makueni County Referral Hospital when they were not placed properly on record. This observation is correct as these documents were marked for identification by the 1st Respondent as he gave his testimony in court.
43.There is not much evidence that the trial court placed reliance on them with regards to making a determination on the injuries that were sustained by the 1st Respondent which in turn informed the award on quantum. The trial court placed reliance on the medical report of Doctor John Mutunga (PW5) who produced a medical report dated August 10, 2018 and marked as PEXH 9. The error that the trial court made was to refer to PW5 as Dr Kimuyu clearly did not attend court although there is a medical report by said doctor in the Plaintiff’s bundle of documents. In its judgment, the trial court made reference to the medic who attended court and gave evidence. Notably in this appeal, the Appellant has not raised the same as an issue. There was also no objection to production of the medical report by PW5 in court as he gave his testimony which was subjected to cross-examination by the Appellant’s counsel.
44.This court finds that though the issue of extraneous documents from Aga Khan and Makueni may have had an impact on the award of damages, the appellant in this appeal did not contest the quantum awarded, and the issue was never canvassed in this appeal, I will leave it at that.The appellant’s contention that the trial court should have found that the 2nd Respondent bore a statutory duty is premature because that issue was not and has not been ventilated in Court.In the end, for the reasons afore-stated, this court finds no merit in this appeal. The same is dismissed with costs.