|Civil Appeal 203 of 2003
|Motrex Limited v Akamba Public Road Services Limited
|25 Mar 2011
|Court of Appeal at Nakuru
|Daniel Kennedy Sultani Aganyanya, Erastus Mwaniki Githinji, Joseph Gregory Nyamu
|Motrex Limited v Akamba Public Road Services Limited & another  eKLR
|(Appeal from the judgment and decree of the High Court of Kenya at Nairobi (Ang’awa, J.) dated 2nd July, 2003 in H.C.C.C. NO. 1824 OF 2000)
|History Docket No:
|H.C.C.C. NO. 1824 OF 2000
|Mary Atieno Ang'awa
Civil Practice and Procedure-appeal-first appeal-duty of the first appellate court to re-consider the evidence evaluate it and draw its own conclusion
Civil Practice and Procedure-liability in road traffic accidents-apportionment of liability in a road traffic accident-where contribution negligence is proved on the part of the claimant-how liability is apportioned.
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
CIVIL APPEAL NO. 203 OF 2003
This is an appeal against the judgment of the superior court (Ang’awa, J.) awarding special damages of Shs.832,816.35 in favour of the respondent against the appellant being the cost of repairs of the respondent’s bus which collided with the appellant’s lorry/trailer along Nakuru/Eldoret road.
On 24th May, 1999, Akamba Public Road Services Ltd. (Akamba) the respondent filed Civil Suit Nairobi H.C.C.C. No. 1092 of 1999 against Motrex Ltd. (Motrex). Akamba averred in the plaint, inter alia, that on 21st November, 1997 along Nakuru/Eldoret road Motrex’s driver negligently drove, managed Motrex’s lorry/trailer Registration No. KAJ 330G – 2B 6669 causing it to violently collide with Akamba’s bus Registration No. KAN 043G thereby causing extensive damages to the bus. The particulars of negligence pleaded included stopping/parking the lorry on the road, failure to give any warning to other motorists and “blocking the left lane of the road immediately after a bend thereby failing to give other motorists reasonably expected to be on the road any sufficient time to avoid colliding with motor vehicle …..”.
On 7th November, 2000 Motrex filed a corresponding suit against Akamba – Nairobi H.C.C.C. No. 1824 of 2000 relating to the same accident alleging that the accident was caused by negligence of the Akamba’s bus driver. The particulars of negligence pleaded against Akamba’s driver included driving at an excessive speed, failure to have proper look out; failing to stop, slow down, swerve or brake in order to avoid the accident and driving without due care and attention.
Motrex claimed Shs.4,684,514/= comprising, inter alia, Shs.1,079,41/= being the cost of repairs and Shs.3,600,000/= being loss of user at 400,000/= per month for nine (9) months.
Both Akamba and Motrex filed respective defences denying negligence.
Before the hearing date, the two suits were consolidated on the application of Akamba. Motrex called two witnesses at the trial, namely, Peter Ngui Musyimi (PW2) who gave evidence relating to the accident and Justus Munyao Chungu (PW2) who gave evidence relating to the cost of repairs.
Akamba on its part called five witnesses, namely, John Theri Ndungu (DW1), the bus driver who gave evidence relating to the accident, Joseph Kiamichi (DW2) a police officer who produced the police accident investigation file; John Okeyo Alum (DW3) who prepared a report of the accident for the insurer of the Akamba bus, Samuel Makundi Malua (DW4) a mechanic foreman at Akamba workshop who gave evidence relating to cost of repairs of the bus and Peter Kammani (DW5) who produced a computer print out of the cost of spares..
At the trial, some documents were produced by consent without calling the maker. These documents include sketch plan of the scene by the Eldama Ravine police station, Investigation report by Zakache Security Services Ltd. and police accident file.
The following evidence emerged from the evidence and the reports. On 22nd November, 1997 in the afternoon, Martin Mutisya Musyoka was driving Mortex lorry trailer along Eldoret/Nakuru road towards Nakuru. He was in the company of Peter Ngui Musyimi, the turnboy. On reaching Burnt Forest it started raining and it continued raining until the lorry reached Timboroa at about 5 p.m.
At Timboroa, the road though a tarmac road was muddy and slippery. The mud was deposited on the road by lorries which were ferrying logs from the nearby forest. There was a sharp bend and as the lorry was climbing a steep hill it got stuck and stopped on the left lane towards Nakuru. It could not move forward. According to the statement of the bus driver, he placed life savers and tree leaves at the front and back. He also deployed some young men to control the traffic to avoid accidents.
At about 12.30 a.m. the Akamba bus heading to Kampala, Uganda from Nairobi being driven by John Theri Ndungu reached Timboroa. After passing Timboroa market, it was drizzling and misty and as he was driving down hill at left-ward bend, he suddenly saw the stationary Motrex lorry/trailer. He braked the bus but it swerved, skidded and finally hit the lorry head on. Both vehicles skidded and rested on the right lane towards Eldoret. They were blocked by guard rails from rolling into the steep valley. Some of the passengers in the bus sustained various injuries.
The bus driver claimed that the accident occurred on his correct lane and that there were no life savers on the road or other warning signs to indicate that there was a stationary vehicle.
There are four grounds of appeal, thus:
Regarding ground 4, Mr. Ngome submitted that the respondent merely produced computer generated list of cost of repairs without giving concrete evidence of such costs of repairs.
Both Ms. Omondi and Mr. Rimuyi for 1st and 2nd respondents respectively supported the findings of the superior court.
The primary facts were not in dispute. It was common ground that the appellant’s lorry/trailer stalled and stopped when going uphill towards Nakuru; that there was a blind bend at the scene; that the accident occurred at night at about 12.30 a.m.; that it had been raining before the accident; that the road was wet, muddy and slippery; that there were steep depressions on both sides of the road; that there were guard rails on either side of the road; that there was no space for swerving on both sides of the road; that the lorry/trailer was parked in such a way that there was enough space for vehicles going towards Eldoret to pass; that the road is busy; that many vehicles to and from Eldoret had passed albeit with difficulty before the accident; that there was mist and visibility was poor at the time of the accident; that when the driver of the bus applied brakes, the bus swerved, skidded and collided with the stationary lorry/trailer.
The police after investigations concluded:
It is clear from the above analysis that the direct cause of the accident was the condition of the road and the weather and not the obstruction caused by the lorry/trailer. It is evident that the condition of the road and the weather which made the bus to swerve and skid upon application of brakes was the cause of the collision. It is probable that if the visibility was good and the road dry the bus could have passed the lorry without any accident.
There was also evidence that other vehicles had passed the scene without any accident. The evidence of Peter Ngui Musyimi – the lorry’s turn boy that the bus was travelling at a speed was credible. The bus driver testified that the bus was moving at a speed of 60 – 65 KPH. We have come to the conclusion that the bus was moving at excessive speed in the prevailing circumstances and that the bus driver contributed to the accident to some degree.
We are satisfied that the 1st respondent proved the special damages of Shs.832,718/55.
The special damages Shs.832,816/55 is correspondingly reduced by 30% to Shs.582,972 with half the costs of the suit and counter-claim.
We give half of the costs of this appeal to the appellant.
Dated and delivered at Nairobi this 25th day of March, 2011.
E. M. GITHINJI
JUDGE OF APPEAL
D. K. S. AGANYANYA
JUDGE OF APPEAL
J. G. NYAMU
JUDGE OF APPEAL