BILL WINTER SAFARIS LTD v CAROLINE NANJALA WEKESA & 2 Others [2011] KEHC 172 (KLR)

Editorial Summary

1. Civil Appeal

2. Subject of Subordinate court case

TORT

2. 1           Running Down cause

2. 2           Female adult and another knocked down by

a motor vehicle registration No. KTN 077

2. 3           Original 1st defendant driver convicted in a

Traffic court case for offence.

2. 4           Original 1st defendant sued together with

original 2nd defendant, the registered owner

of the motor vehicle and original 3rd defendant

the beneficial owner of the motor vehicle.

2. 5           Denial of ownership of the motor vehicle

by original 2nd defendant.

2. 6           Subordinate court enters judgment against

defendants No. 1 and 2 only.

2. 7           Original 2nd defendant files review application

to the Hon. Trial Magistrate decision.

2. 8           Application declined by Hon. Trial Magistrate.

2. 9           Original 2nd defendant files appeal against

ruling to High Court.

2. 10         Issue being that of ownership of the motor

vehicle

3. Appeal to High Court:

i)             Court held original 2nd defendant not

owner of motor vehicle

ii)            Appeal allowed and judgment against

original 2nd defendant set aside. Case

against original 2nd defendant dismissed.

4. Application Notice of Motion 12th October 2011

i)             Application by original plaintiff

ii)            Judgment be reviewed.

iii)           Court to determine relationship of

original 2nd defendant to original 3rd defendant

5. In Reply:

i)             Advocate for original 2nd defendant (appellant)

No objection to the application provided award and

Findings of court is not changed.

ii)            Advocate for original defendant/respondent

Opposed the application on ground – now new

facts and or evidence was raised.

6. Held:

a)            Review brought correctly – “for any other

sufficient reason.”

b)            Review allowed.

c)            court judgment to read:

liability against 1st and 3rd original defendant

jointly and severally with the 3rd original defendant

being vicariously liable.

d)            Whereas the matter before the High Court on

appeal was on review, the main judgment has not

been appealed against.

e)            Judgment on liability and quantum remain the same

and will not be interfered with unless appealed

against.

f)             That there be 30 days of appeal from the court’s review

orders on the judgment of the subordinate court by

original 1st and 3rd defendants under Section 65 and

79G of the Civil Procedure Act.

7. Case Law:

8. Advocates:

i)K.G. Mwangi instructed by M/s B.W. Kamunge & Advocates for  appellant

ii)            L.K. Waweru  instructed by M/s L.K. Waweru & Co Advocates for 1st and 2nd respondents

iii)           P C Sang instructed by M/s Kiage & Co Advocates for 3rd appellant

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

MISC. CIVIL APPL NO. 589 OF 2009

BILL WINTER SAFARIS LTD ............................ APPELLANT/

VERSUS

CAROLINE NANJALA WEKESA …………..…… 1ST RESPONDENT

CHARLES KANGETHE KIBUU ………………… 2ND RESPONDENT

JULIUS MBURU ….………………………….….... 3RD RESPONDENT

R U L I N G

I.INTRODUCTION

1. The application, Notice of Motion dated the 12th October 2011 seeks orders of reviewing this court’s judgment that was determined on the 8th June 2011.

2. The reasons for review being that there was an error on the face of the record, inter alia.

3. A brief background of the judgment facts, is that one Caroline Nanjala Wekesa, a female adult and another were run down by a motor vehicle registration number KTN 077, on the 7th December 2004. As a result of the accident she sustained injuries and sued the driver of the said vehicle, one Charles Kangethe Kibui (herein referred to as the original 1st defendant), the registered owners of the motor vehicle

M/s Bill Winter Safaris (herein referred to as the original second defendant) and the beneficial owner of the said vehicle are Julius Mburu herein referred to as the original 3rd defendant.

4. After trial before the subordinate courts, the Hon. Trial Magistrate established that an accident did indeed occur. It was further established by that court that the driver/1st defendant of the motor vehicle was charged before the Traffic Court, found guilty and convicted for the traffic offence.   He was fined Ksh. 4000/= in default 4 months imprisonment.

5. In determining liability in the subordinate court case, the Hon. Trial Magistrate came to the findings that the persons to blame for the accident was the driver original 1st defendant and the official registered owner of the said motor vehicle the original 2nd defendant. The Hon. Magistrate by implication found no liability on the part of the original 3rd defendant who was the beneficial owner.

6. Being aggrieved by this judgment, the original 2nd defendant

M/s Bill Winters Safaris filed a review before the same subordinate court. The issue before the trial magistrate was on the ownership of the said motor vehicle. The 2nd defendant therefore sought to have the judgment of the Hon. Magistrate reviewed on grounds that the said motor vehicle no longer belonged to them. That possession had passed on to the original third defendant Julius Mburu.

7. The Hon. Trial Magistrate dismissed this review application on the

28th September 2009. The original 2nd defendant filed an appeal against this ruling on the 27th October 2007 to this High Court of Kenya at Nairobi.

8. When the appeal came before this court for hearing, the only issue was, “who is the correct owner of the motor vehicle registration

KTN 077 between the original 2nd defendant, as the registered owner and the original 3rd defendant as the beneficial owner?

9. By the judgment of this court dated 8th June 2011, I determined the issue and found that the original 2nd defendant M/s Bill Winters Safaris Ltd were not the owners of the said motor vehicle at the time the accident occurred. The original plaintiff, the 1st and 2nd original defendants conceded to this fact, and this matter was finalized.

IIAPPLICATION 12TH OCTOBER 2011

10. The original plaintiff, Caroline Nanjala Wekesa, filed the review application dated 12th October 2011, to the said judgment of

8th June 2011. She sought to then know if the original 2nd defendant is not liable for this said accident, then who should be held liable?

11. The advocate for the original 2nd defendant did not oppose the application on grounds that this court’s findings should not be interfered with. The advocate for the original 1st and 3rd defendant argued that the application before this court seeks review of the court’s judgment. The rules for review have not been met by the applicant and as such the application should be dismissed.

IIIFINDINGS

12. Order 45 of the Civil Procedure Rules provides a litigant to apply for a review against a decree or order of the court.

13. The rule reads:-

1. Any person considering himself aggrieved:-

a)           By a decree or order from which an appeal is allowed but from which no appeal has been preferred or

b)                     by a decree or order from which no appeal is hereby allowed is permitted to apply for a review of the judgment of the court. This must be done without unreasonable delay.

14. The original 2nd defendant applied for a review in the subordinate courts without unreasonable delay. They had by then filed no appeal before applying for a review.

15. The original plaintiff has filed for review without unreasonable delay.

16. The grounds in which a review is to be made is provided for in the 2nd part of Order 45 namely:

“and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason deserves to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

17. The original plaintiff wished that this court claries who then is liable for the said accident, besides the original 1st defendant/driver? She had the option of taking this court’s judgment back to the original court for further determination or file a review to this High Court on the same question.

18. Under Order 45 Civil Procedure Rules, the correct reasons for a review would be:

“for any other sufficient reasons.”

19. I believe that the original plaintiff had demonstrated sufficient reasons and therefore did file the application correctly before this court.

20. My findings and determination as a result of my judgment of

8th June 2011 is as follows:

The original defendant No. 1 and driver of the motor vehicle at the time of the accident together with the original defendant No. 3 the beneficial owner of the vehicle are liable for the accident.

21. There was sufficient evidence before the trial magistrate to show that the vehicle had been finally sold to the original 3rd defendant in kind/in exchange for a piece of land). The original 3rd defendant admitted to this.

22. The court’s judgment is therefore reviewed to read that:

Judgment be and is hereby entered in favour of the original plaintiff on liability against the original 1st defendant and the original defendant jointly and severally with the original third defendant being vicariously liable.

23. What was before me was a review ruling. The main judgment has never been appealed against and I do not have a mandate to interfere with the said judgment unless there is an appeal filed against the issue of apportionment of liability and quantum.

24. To this end, I would hold that there be a right of appeal of the subordinate court’s judgment against the original 1st and

3rd defendants to be 30 days from this court’s judgment (Section 65 and 79G Civil Procedure Act.)

25. There will be no orders as to costs.

DATED THIS 30TH  DAY OF NOVEMBER 2011 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)K.G. Mwangi instructed by M/s B.W. Kamunge & Advocates for appellant

ii)            L.K. Waweru instructed by M/s L.K. Waweru & Co Advocates for 1st and 2nd respondents

iii)           P C Sang instructed by M/s Kiage & Co Advocates for 3rd appellant