1.By a Plaint dated 6th July 2012 and filed in court on 20th July 2012, the Plaintiff filed the instant suit against the Defendant seeking judgment for Kshs. 5,606,447/- together with interest thereon at court rates and costs. The suit was filed on behalf of the Plaintiff’s insurer, ICEA Lion General Insurance Company Limited under the principle of subrogation.
2.It was pleaded in the Plaint that on 29th December 2009, a Leyland articulated lorry and trailer registration number KQJ 657 and ZA 5360 (hereafter “Leyland trailer”) owned by Rongai Workshop & Transport Ltd was transporting a consignment of tea belonging to the Plaintiff. When nearing Londiani along Kericho - Nakuru Road, a collision occurred between the Leyland trailer, a petrol tanker registration number KBH 301V and an Isuzu tipper lorry registration number KAL 679U owned by the Defendant and driven by a servant or agent of the Defendant. The Plaintiff contended that the collision was caused by the negligence of the driver of the Defendant's tipper lorry. It pleaded that as a result of the collision, the Leyland trailer ferrying the Plaintiff’s goods caught fire and the entire consignment of tea was destroyed. It suffered loss and damage which was duly paid by its insurer ICEA Lion General Insurance Company Limited as follows:Value of consignment of tea Kshs. 5,360,107Accident Investigator's fees Kshs. 53,931Loss adjuster's fees Kshs. 192,409Total Kshs. 5,606,447
3.The Defendant denied the claim vide a Statement of Defence dated 31st March 2014.
4.Only the Plaintiff participated in the trial by calling five (5) witnesses.PW1, Valerie Jean Louis, a Fleet Compliance Manager at Rongai Workshop & Transport Ltd adopted her witness statements dated 8/8/2016 and 9/6/2016 as her evidence in chief and produced the Plaintiff’s further list and bundle of documents dated 14/6/2017 in support thereof. It was her testimony that on the evening of 29/12/2009, they received a message from the traffic police that the Leyland trailer had been involved in an accident near Londiani. Together with several other staff of the Company, they travelled to the scene where she took photographs. The following day, she took further photographs of the three motor vehicles that were involved in the accident. She later printed the photographs and adduced them in evidence.
5.PW2, Wesley Bosuben, a Senior Sales and Marketing Manager at the Plaintiff Company also adopted his witness statement dated 5/1/2019 as his evidence in chief. He testified that at the material time, he was employed as the Assistant Factory Manager at Kitumbe Factory where the Plaintiff’s consignment of tea weighing 26,040 kilograms was loaded on the Leyland trailer at Kitumbe Factory for transportation to Mombasa. He averred that the vehicle was subsequently involved in an accident and all the tea got burnt and damaged. PW2 noted that the tea was to be sold at auction in Mombasa and based on the price which was obtained at the said auction, the consignment was valued at USD 71,631.60. There was also 32 kilograms of samples valued at USD 80.32 as evidenced by the dispatch notes and commercial invoice in the Plaintiff’s Bundle of Documents. It was PW2’s further testimony that the exchange rate of the US dollar to Kenya Shillings at the material time was 1 USD equivalent to Kshs. 75.50 thus the total value of the destroyed tea amounted Kshs. 5,414,249.96. PW2 stated that the Plaintiff however received from its insurers the sum Kshs. 5,360,107/- since its cover was subject to 1% policy excess.
6.PW3, Stephen Misik was a former Factory Assistant at the Plaintiff’s Kitumbe Factory. He adopted his witness statement dated 20/7/2012 as his evidence in chief. In the statement, he averred that he supervised the loading of the tea consignment on to the Leyland trailer on the material day.
7.PW4, George Sayagie, a photographer also adopted his witness statement dated 22/8/2016 and list of bundle of documents dated 14/6/2017 as his evidence in chief. He averred that on the material day, he went to the scene of accident and took photographs showing the positions of the three vehicles that were involved in the accident. He later printed the photographs and adduced them in evidence.
8.PW5, Samuel Nganga was a Deputy Claims Manager - Non Motor Section, at ICEA Lion General Insurance Company Limited who was the insurer of the Plaintiff’s tea. He adopted his witness statement dated 3/1/2020 as his evidence in chief and produced the plaintiff’s bundle of documents dated 3/1/2020 in support thereof. It was his testimony that ICEA Lion General Insurance Company Limited settled the Plaintiff’s claim on the value of tea lost and destroyed in the accident at a sum of Kshs. 5,360,107/- as shown in the Acceptance of Loss Form at page 22 of the Plaintiff's Second Further Bundle of Documents. He averred that ICEA Lion General Insurance Company Limited also paid the fees of the Accident Investigator, Pro Active Risk Solutions in the sum of Kshs. 53,931/- and the fees of the Loss Adjusters, Cunningham Lindsey Kenya Limited, in the sum of Kshs. 192,409/- as evidenced by the invoices at pages 4 and 5 of the Plaintiff's Bundle of Documents.
9.As regards liability, the Plaintiff submitted that from the photographs adduced by PW1 and PW4, it is clear that the Leyland trailer was being driven on the correct lane of the road while the Defendant’s tipper lorry, which was travelling in the same direction, was on the wrong side of the road. It was submitted that the only conclusion that could be drawn is that the tipper lorry was overtaking the Leyland trailer thereby causing the accident. The Plaintiff contended that the fact of overtaking in the face of the oncoming tanker was clear negligence on the part of the driver of the tipper lorry and thus, the Defendant should be held vicariously liable for the loss and damage suffered as a result of the negligence of his agent or servant.
10.On the issue of damages, the Plaintiff submitted that the claimed sum of 5,360,107/- is well supported by the evidence tendered by PW2, PW3 and PW5.
11.The Defendant did not put in written submissions.
Analysis and Determination
12.The court has given due consideration to the pleadings, evidence adduced as well as the submissions by the Plaintiff. The only issue that falls for determination is whether the Plaintiff has proved its claim against the Defendant on a balance of probabilities.
13.In determining this issue, due regard must be paid to the well-settled proposition that the legal burden of proof lies upon the party who invokes the aid of the law. That is the purport of Section 107 of the Evidence Act which stipulates thus;
14.The first question therefore is whether the Plaintiff has discharged the burden of proving that the Defendant is liable in negligence for the accident that resulted in the destruction or loss of the Plaintiff’s tea consignment. It is not in dispute that the subject accident occurred and that the tipper lorry belonged to the Defendant herein. At paragraph 4 of the Plaint, the Plaintiff enumerated the particulars of negligence attributed to the driver of the Defendant’s tipper lorry. Notably however, there was no eyewitness account of the events that led to the accident and/or of who was to blame for the accident as none of the witnesses who testified in this case were at the scene at the material time. Indeed, PW1 and PW4 both stated that they visited the scene after the accident had occurred and took photographs of the aftermath.
15.Even the Police abstract that was produced by the Plaintiff’s witness does not indicate who was to blame for the accident. Rather, it shows that the matter was pending under investigation by one Corporal Mugambi but the Plaintiff did not call the said investigating officer to testify on the outcome of the investigations conducted, if any. Further, not even the Investigation Report prepared by Pro-Active Risk Solutions who were engaged by the Plaintiff’s Insurer, ICEA Lion General Insurance Co. Limited, to investigate the circumstances of the accident, was adduced in evidence in order to put the court in the picture about who was to blame for the accident.
16.Interestingly, to prove liability, the Plaintiff relied on the photocopies of the photographs of the accident scene and the three motor vehicles adduced by PW1 and PW4. Foremost, in the court’s considered view, the photographs, which contain some brief explanation of what each of them represents, do not meet the requirements of Section 106B of the Evidence Act which stipulates that:
17.In County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others  eKLR, the Court of Appeal stated that:
18.In Samwel Kazungu Kambi vs Nelly Ilongo & 2 Others  eKLR, Korir J. when dealing with production of photocopies of photographs by a person who was not an eyewitness observed as follows:
19.Similarly, in the instant case, neither PW1 nor PW4 who adduced the copies of the photographs were eyewitnesses to the accident. The source of the photocopies of the photographs, that is, the computer used to generate them, was not revealed. The device used to capture the images was unknown. The person who processed them was not named and lastly, they were not accompanied by the certificate envisaged under Section 106B(4) of the Act to confirm their authenticity. In the circumstances, the court holds the considered view that the photographs cannot be relied on this case.
20.Even assuming that the photographs were correctly adduced, it would still have been impossible for the court to determine the particulars of negligence attributed to the Defendant’s driver by simply looking at them. The photographs ought to have been accompanied by sketch maps of the accident scene showing the positioning of the three motor vehicles when the accident occurred as well as eyewitness accounts. This is especially because none of those photos show the three vehicles at the same scene. Rather, only one photo at page 17 of the Plaintiff’s Further Bundle of Documents dated 10/1/2017 shows the Leyland trailer and the petrol tanker on one side of road facing each other after the accident while the Defendant’s tipper lorry appears to have been photographed separately. The upshot is that the evidence on record does not prove any of the particulars of negligence attributed to the driver of the Defendant’s tipper lorry.
21.Consequently, the court finds that the Plaintiff has failed to prove its claim against the Defendant to the required standard, which is on a balance of probability. This suit is therefore dismissed with costs to the Defendant.