Daniel Kaluu Kieti v Mutuvi Ali Nyalo & Waridi Limited [2016] KEHC 5898 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO.  236 OF 2007

DANIEL KALUU KIETI………….……………………….....APPELLANT

VERSUS

MUTUVI ALI NYALO…………….….………………..1ST RESPONDENT

WARIDI LIMITED…………………………………….2ND RESPONDENT

JUDGMENT

This appeal arises from the judgment and decree of Honourable D.Toigat (Mrs) Resident Magistrate delivered on 5th March 2007 in Nairobi CM CC No. 9003 of 2004.  In that case, the appellant herein DANIEL KALUU KIETI was the plaintiff.  He sued  the respondents herein  MUTUVI ALI NYALO and WARIDI LIMITED claiming for damages  arising from  a road  traffic  accident  which occurred  on 9th May  2003 along  Waridi Sunrose Road while  the  appellant  was travelling as a  passenger  in the course  of his employment  in the 2nd respondent’s  motor vehicle  registration number KXM 027.  The appellant  blamed the respondents  for being negligent  and the 1st  respondent  who was the hired owner of the subject  motor vehicle working for  the 2nd  respondent  as a  result of which negligence  the appellant  was  injured.  The trial magistrate heard the case   and apportioned liability at 50:50 between the appellant and 1st respondent only.

In his Memorandum, of Appeal dated 4th April 2007 the appellant complains that:

The Learned trial magistrate erred  in law  and in fact in failing to  consider the evidence on record  and  in apportioning liability  at 50%  against the  appellant and the  1st respondent  respectively while  exonerating the 2nd respondent wholly  from liability.

The learned magistrate erred in law and in fact in relying on extraneous matters that did not form part of the proceedings in arriving at the decision on liability.

The learned magistrate erred in law and in fact in finding that the 2nd respondent contracted out of its statutory duty of care to the appellant.

That  the learned magistrate  erred  in law  and in fact in failing  to consider all the evidence  adduced  in respect of the appellant’s  injuries  and thereby arrived at a wrong decision.

That the learned magistrate  erred  in law and  in fact  in making  an inordinately  low award  in assessing  general damages  at kshs  20,000 and without consideration  to the submissions by the appellant and the respondents.

The appellant prayed that the appeal be allowed and the court do revise the award of general damages upwards; the issue of liability be reassessed and   that costs be awarded to him.

This  being   a first appeal, this  court is  obliged to abide  by the provisions   of Section 78 of the Civil Procedure  Act to reevaluate  and reexamine the evidence  before the lower court  and arrive at  its own independent  conclusion.  This   is the principle of law that was well settled in the case of Selle V Associated Motor Boat Company Ltd [1968] EA 123 where Sir Clement De le Stang stated that:

“ This  court must  consider the evidence,  evaluate itself and draw its  own conclusion though in doing so it should   always bear in mind that  it neither  heard witnesses  and should  make due  allowance  in this respect .

However, this court  is not  bound necessarily to follow the trial judge’s findings  of fact if  it appears  either  that he had  clearly failed  on some  point to take account of particular  circumstances or  probabilities  materially  to estimate the evidence  or if  the impression based on the demeanor  of a witness is inconsistent  with  the evidence  in the case  generally ( Abdul Hammed  Sarif V Ali Mohammed  Solan [1955] 22 EACA 270).

Evaluating the evidence on record, the appellant testified as PW1 and called 4 other witnesses to support his claim in a fairly lengthy trial.

According to the appellant, he worked for the 2nd respondent as a casual labourer and on 9th May 2003 he boarded the 1st respondent’s bus registration No.  KXM 027 together with 75 of his colleagues.  The bus  was hired  by the 2nd  respondent  his employer  from the 1st respondent  owner  thereof  for  purposes  of  ferrying  workers  to their respective  places  of work during the  rainy seasons  as there was a  river between  where most staff resided  and  the 2nd  respondent’s premises which river would  swell  during the rainy season making it  impossible  for staff to cross over  on their  way to work.

When the bus reached a hilly section of the road, it suddenly started moving backwards down the hill and it hit a tree and fell on its right side.  The driver struggled to control the vehicle in vain.  The appellant  got out  through  the door and  was transported to the 2nd defendant’s company  together  with others  who  were injured  and they received  treatment  at the company clinic  and given sick off.  The appellant sustained injuries on the wrist joint of the right hand, right shoulder and lower back.  He did not  report  the accident  to  the police because  the 2nd respondent  had promised  to compensate those who were injured and it  was after  the 2nd respondent reneged  on that  promise that the injured  went to report to Athi River Police Station  where  he was issued  with a police  abstract  and P3 form.  He was later examined by Dr Wokabi who prepared for him a medical report.  The appellant blamed the owner of the motor vehicle-the 1st respondent   and 2nd respondent    employer for allowing a faulty motor vehicle to carry staff to work.  That  the bus  had no safety belts, had its  exhaust pipe fastened  with a rope and would go  off the road and get struck  in the mud  which  defects  had  been reported to the 2nd  respondent  but nothing   had been done about it.

In cross  examination  by the  respondents’  counsels  the appellant maintained  his testimony in chief adding that he  knew  the 1st respondent to be  the agent  of the 2nd respondent  and that  he  had not  seen   any contract  between  the  1st and 2nd  respondents.

PW2 Benjamin Mathani Kioko was the appellant’s workmate at the spraying section.  He was with the plaintiff/appellant in the ill fated bus on the material date of accident.  He stated that the injured staff did not report the accident to the police because the 2nd respondent had promised them compensation.

Further, that he was in the  union  that discussed  the accident  and the fact that  the 1st respondent’s motor vehicle  was faulty and needed replacement  by the  2nd respondent  but they were  told to  continue  using the  same bus  as there  was no alternative.  He maintained    on cross examination that the bus reversed on a hilly section of the road, hit a tree and fell on the right but the same bus continued ferrying workers.  He stated that   the bus did not overturn contrary to his earlier testimony in chief.

PW3 Joseph Ndambuki Nzula a fellow worker to the appellant testified  reiterating the evidence of  PW1 and PW2 concerning how  the accident occurred  adding  on cross examination  that the bus  rested at 45 degrees angle  after  the accident  and they got  out without  much  assistance  and that had the 2nd respondent compensated  the  injured the matter would not  have been reported  to the police.

PW4 Edison Kirui was a clinical officer employed by the 2nd respondent.  He testified that he went to the scene of accident to treat the injured and found workers alighting from an upright bus.  He later treated some injured at the company clinic as per the extract from the  clinic containing  names of  those  injured and that the appellant  was treated  for right wrist joint  injury only.

PW5  PC Charles Buto from Athi River Police Station testified  that the accident  in  issue as  reported  on 16th October 2003 about 1 month  and half after  its occurrence, involving  staff of  the 2nd respondent, being  ferried  in the 1st respondent’s  bus and confirmed that  the appellant  was one  of the 76  passengers  listed  as per the list  given to the police by the 2nd  respondent’s Human Resource Manager Mr J.K. Langat.  The police  officer produced a  police abstract  showing the  case was  pending under  investigations and that  therefore   it was not clear  as to  how the accident occurred but the driver  of the bus   would be  charged  for failing  to report  an accident.

PW6 Dr Wokabi examined the appellant on 13th November 2006.  According to Dr Wokabi, the plaintiff complained of generalized pains over the trunk and severe pain in the chest and back and a painful right shoulder and right wrist.  He had nonetheless fully recovered on examination.  In cross examination Dor Wokabi stated that he relied   on treatment notes and P3 form which did not state any injuries to the back or off duty.  He confirmed   that there was a discrepancy on injuries on P3 and treatment notes. In re-examination  he stated that  the injuries  complained of  may not have been included in the summary  from the 2nd respondent’s records but maintained that  the injuries  sustained  by the appellant were consistent  and such  were suffered  in accidents.  The respondents called 4 witnesses.  DW1 Urbanas Kanulu worked for the 2nd respondent as a cook.  He was in the ill fated   bus and it was raining and the road was muddy.  After crossing the bridge, the motor vehicle was unable to climb the slope.  The vehicle reversed and was held by a tree.  40 passengers were seated.  Others broke windows to get out.  He was not injured and according to him, no one was injured.  They were then taken to the 2nd respondent’s clinic for examination and they continued working.  He stated that all persons walked out the motor vehicle.  No one was rescued as the motor vehicle did not overturn.  The same motor vehicle ferried them in the evening to Kananie.  He maintained that there was no accident as the motor vehicle only skidded in the mud.  He stated that the motor vehicle had no fault.  He could not remember the plaintiff/appellant and further stated that the matter was never reported   to the police.

On cross examination DW1 stated that he was injured,  was  massaged  with liniment   on the left  leg but that the  pain had been occasioned by the pushing and shoving of staff as  they alighted   from the bus  and not  as  a direct  result of the accident.

DW2 Mary Muthika  Kimeu  reiterated the testimony of DW1 adding  that she  was not injured  in the accident  and that the  bus continued to ferry them to  and from work  for  a long  time thereafter.  She had no knowledge of motor vehicles and did not know why the motor vehicle could not go up the slope and that only one lady was in shock and taken to Mutonguni.  DW2 however did not know if anyone was injured in the bus.  She stated that the bus had seat belts which they wore.  She never saw anyone jump out through windows but that some windows were broken.  She denied   being given promotion and money to testify in court.

In cross examination  she stated  that she did  not hear   any complaint   of injury after the  motor vehicle had stopped  and that  she could not tell  why people  were pushing  to get out  of the motor vehicle  but they were in a  hurry to get out.  She denied that the driver lost control.  She heard no complaint concerning the bus defects but stated the   union complained.  She had no idea if anyone went to the clinic because she did not go there. In re-examination DW1 stated the bus was reversing slowly until it stopped.

DW3 Simon Maina Gatundu was the driver of the subject   bus employed by the 1st respondent. On the fateful day, as he drove the bus it was raining.  The road  was  narrow, steep and  muddy because  of the rain so the bus  was  unable  to go up the slope  and it reversed  resting  on a  tree on the  side of the road after he  tried to manage it.  He maintained that the bus was in good condition, that it used to be serviced   every month and that he used it continuously for 6 months.  He maintained in cross examination that the police never looked for him after the accident as he lived in Athi River.  That those who got injured were those who were pushing and trying to get out of the bus.

DW4Muturi Ali Nyato was the owner of the subject bus.  He stated that he had a contract of service with the 2nd respondent to transport its workers.  That he was notified of the accident and he found the motor vehicle KXM 027 across the road near a drift and a tractor ready to pull it at 8. 00a.m on the material day.  That he was informed   that there were no casualties and neither did he receive any complaint that his motor vehicle was defective.

The 2nd respondent  called Charles   Maina Kiragu a Human Resource Manager who testified  that on the material  day he received  information  concerning  the accident  which he  confirmed that the bus  had slipped  and landed  in a ditch as he found it leaning.  He produced copy of service  contract which  showed that  the contractor was  liable for  the safety  of the employees  and was to take  insurance  cover against  such risks  from 9th May 2001.  He confirmed  that people  were treated  at the company  clinic following  the accident  but that  there had been no complainant  on the condition  of the bus since  the 2nd respondent required  inspection  certificates as evidence that  the motor vehicle  had been inspected.

After the close of the respective parties’ cases their advocates filed written submissions both on liability and on quantum.

After  considering the evidence  and  submissions, the  trial magistrate  found that  there  was  an incident  involving  motor vehicle  registration No. KXM 027 but that  there was no evidence that  the driver  was negligent  or careless while managing  the vehicle  or that  the vehicle  was faulty.  She  found that  the accident  was caused  by the fact that  it was  a rainy day and while the  bus was going up the slope it began to skid  and since  there was the  effect of gravity, there  was  no otherwise  but the  driver  to control it to  safety on the  side of the road.

On the injuries, she found that the appellant sought treatment for an injured right wrist.  According  to the trial  magistrate the injuries s  were occasioned by the pushing and  shoving  of passengers who  panicked   once the bus started  moving  backwards, as they struggled  to get  out of the bus hence she held that they(including) the appellant  contributed  50% to the injuries he sustained.

On who was liable for the accident, the trial court found that the 2nd respondent had been absolved by the service contract with the 1st respondent.  She dismissed the claim against the 2nd respondent with costs.

On quantum, the trial  court  found that   the injury  was soft  tissue  on the right wrist joint  and  awarded  the appellant shs  20,000/- general damages  together  with kshs  2000/- special damages  plus costs   of the  suit.

It is that  decision that  provoked  this appeal with the  appellant  who was the plaintiff  complaining  against the  decision as  arrived  at both on liability  and on quantum.

In his submissions  dated  7th July  2015 the appellant   relied  on his  submissions  filed in the  lower court  adding that  the  apportionment  of liability by the trial magistrate in the  ratio of 50:50 against  the plaintiff and  the 1st respondent  while absolving the 2nd respondent from liability  was wrong.  Secondly, that  he had  pleased Res Ipsa Loquitor  and  vicarious  liability  in the plaint  and therefore  it  was  erroneous  of the trial magistrate to absolve  the 2nd respondent from liability  since the appellant  was its  employee  and in the course of duty  when he was  injured.  He relied  on Winfield & Jolowicz on tort  13th Edition   WVH Rodgers  page  192  where it was held that the scope of employer’s duty was  said to extend  to the means of access to the place of  work, relying further on the decision of Ash down V Samuel Williams & Sons  [1957] 1QB 409.

Further, the appellant contended that  the 2nd respondent  had a duty to ensure  that the means  of travel by the appellant was safe  by requiring  periodic  inspection of the vehicle  and heeding the concerns of the  employees   concerning   the condition  of the vehicle. The plaintiff  relied on evidence  of DW5  who testified  that the road was  passable  as it  had  a murram surface, which  contracted  DW3  that  the road  was slippery, hence  the motor vehicle  moved backwards  and that  DW3 during cross exam  confirmed that  there was  no mud, water  or soil  on the road  yet he  insisted that it  was a slippery road  that  caused  the accident.  That the same witness also  confirmed that  the vehicle  reversed  backwards  and hit an  escarpment  on the rear  whereas  DW1 and DW2 stated  that the  bus went  to lean on a tree. It was further submitted that the motor vehicle had 76 passengers hence it was overloaded.

The appellant contended that DW2’s testimony  was full of contradictions  on whether  or not  there were injured  persons and  that DW2 and DW3 contradicted  one another  on the  presence  of safety belts in the accident motor vehicle.  He maintained that the injuries he sustained were as a result of the accident.  It  was contended  that  if  the road  was bad, the driver   was under  a duty  of care  to tell the workers  to  alight from the vehicle.  He relied on Laurie  V Roglan Building Company Ltd [1941] ALL ER  page 336 paragraph 6  where  it was held  that “ if roads  are in a bad  condition then it was not safe to go  at more than a foot  pace, his  duty  is to proceed  a foot pace…”

In his view,  skidding  of  a motor vehicle  is usually caused  by worn out tyres  which have no thread  and that the owner  thereof had admitted   that the tyres  had not been changed  since its  purchase.

The plaintiff also relied on CA23/67 Embu Public Road Services Ltd V Rimi where the spring of the bus broke on a straight stretch and the motor vehicle overturned.  The   court applied   the doctrine of Res Ipsa Loguitor.

The appellant  also maintained  that the 2nd  respondent  was under  a duty to ensure that  workers  were carried in a vehicle  that was  mechanically sound; that  no inspection  report produced  as to the vehicle’s condition  at  the time  of accident.  He urged the court to find the respondents 100% liable jointly and severally.

On quantum, the plaintiff maintained  that the  award was inordinately  low and not commensurate  with court awards  or  the injuries sustained  by the appellant  and urged the court to award shs 780,000 relying  on HCC 2707/1990 Denys  Mabwaka  Khabusi V Mawingo; Nairobi HCC 2886/95 Jane Njoki Muraya  & Another  V Alice  W. Kimani & Another.He also prayed for specials of shs 2100/- costs of the suit   and interest.

The 1st respondent never filed any submissions.  The 2nd respondent filed submissions dated 26th October 2015 supporting the trial magistrate’s decision on liability and quantum.  It was  submitted that the duty of care does not  extend to  conscious  decisions  made by the passengers themselves who  in this case  pushed and shoved  upon panicking  and that the  award of shs  20,000/- general damages  and shs  2000/- proved  specials   was sufficient, relying on Kemfro Africa  Limited  T/A Meru Express  Services, Gathogo  Kanini V A.M.M Lubia  & Another [1982-88] 1 KAR  777; Butt V Khan  [1981] KLR  349 and Kitau V Coastal  Bottlers Ltd [1985] KLR 470  to propound  the principle that an  appellate  court should  only interfere with an  award  of damages  when the trial judge  has taken into  account  a factor  he ought not to  have taken into account or failed  to take into  account  something  he ought  to have taken into account or  the award  is so high or so  low that it amounts to an erroneous  estimate.

Further, on liability,  it was submitted  that  the  1st appellant admitted  that he  was the one  to be  liable  in the circumstances  and that the       2nd defendant  ought  not to have  been sued  in the  first place.

On apportionment  of liability, it  was submitted  that  it was  an exercise  of discretion of the trial court  and so this court  should not  interfere, reliance  being placed on  Karanja  V Malele [1983] KLR 142.  It also relied on Stephen Obure Onkanga V Njuga Consolidated Ltd [2013] E KLRwhere the court refused to disturb the award of damages as awarded by the trial court.  It also relied on the service contract that exonerated it from liability, urging this court to dismiss   this appeal and uphold the findings of the lower court.

I have  carefully considered  the  evidence  in the court  below and  as analyzed  by the trial court in the  impugned  judgment.  I have also considered the submissions made before this court by the appellant and the 1st respondent taking into account all the decisions relied on.  In my view, the issues for determination in this appeal are:

Who was liable for the material accident which the trial magistrate described as an incident?

Whether the trial court erred in law    and fact in apportioning liability between the appellant and 1st respondent only at 50:50.

Whether  the 2nd respondent  could  be vicariously held liable  for the negligent  acts  of the 1st  defendant’s driver.

Whether the quantum of damages awarded was inordinately low in the circumstances.

What order should this court make?

Who should bear the costs of this appeal?

On the first issue  of who was  liable for  the accident, although   the respondents had  vigorously submitted and called evidence  which alleged that there  was no  accident, the trial magistrate nonetheless found that  there was  an accident  and that is  why she  apportioned  liability between the 1st respondent  and the plaintiff/appellant.  Accordingly, I find that  all the   submissions as to whether  or not  there was an accident  do not  add any value at this stage to this appeal  since there  is no  appeal filed  by the  respondents  challenging   the finding by the trial  magistrate  that there   was an accident involving the subject bus ferrying workers.  The only  issue is  who was   to blame for the said accident  and  whether the  trial magistrate  was justified in apportioning  liability  between  the appellant  and the 1st respondent  only at 50:50 and  whether  she erred in absolving  the 2nd respondent from liability.

According to the 2nd respondent’s  submissions, the trial magistrate  was justified  in finding that  the appellant  and others  were  equally to blame for the accident  for  pushing and  shoving  when they panicked  on seeing the bus  reverse  down the slope, as they tried to get out  of the bus  and that those  injuries  sustained  must have   been due to  the pushing   and shoving  by the  passengers.

From the evidence of DW1, he could not   remember the plaintiff while DW2 stated that he did not remember seeing the plaintiff in the bus that morning.  DW3 stated that he told people to alight slowly but several jumped out of the windows after removing the glass.  He did not say that he saw the plaintiff shove and push   or jump out of the windows. From the evidence as a whole, none of the defence witnesses stated that they saw the plaintiff push, shove or jump out of the vehicle out of panic and thereby injuring himself.  Accordingly, I find the  trial magistrate conclusion on how  the plaintiff/appellant  sustained  injuries  was unsupported  and  farfetched  and the same is  set aside.

Although the trial magistrate tended  to exonerate  the 1st respondent  from blame though  she found   that there  was an accident  or  mishap, what is apparently clear  is that  the bus  in question which  was insured  to carry 40  passengers had on that material  day carried  76 passengers as per the list of passengers submitted  by  the 2nd respondent’s Human Resource Manager  to the police  after the  injured persons reported the occurrence  of the accident  many  months  after its occurrence.  This list was submitted voluntarily by the 2nd respondent.  In the view of this court, accidents do not just happen.  They are caused.  A bus which is insured to carry 40 passengers was to be found carrying 76 passengers on the fateful day.  The weather was rainy and the road was muddy and slippery.  It was also hilly and therefore  in  my view, and  on the evidence available on record  the driver was  unable to control  the motor  vehicle  due to the excessive weight   hence it reversed  and  hit a tree  and it was that impact which injured  some of  the passengers.  There must be  some explanation as to why a  vehicle  which is  well driven  and  which is  well serviced  must refuse to go forward  and instead reverse on its  own as  per the driver’s  own testimony.

Section  112  of the Evidence  Act is  clear that  in civil proceedings, when  any fact  is especially within the  knowledge  of any party to those  proceedings  the burden of proving  or disproving  that fact is  upon him.  In this case, the 1st respondent claimed that the motor vehicle (bus) was well serviced and therefore it had no defects.  But  they did  not  produce  any inspection  report  to prove that  the motor vehicle  was mechanically sound and  not defective  as contended by the  appellant that it had worn out  tires  and that the exhaust  pipe was  even tied  with a rope.

The mechanical condition of the motor vehicle   was a matter within   the knowledge of the 1st respondent.  The appellant    having alleged   that the vehicle  was faulty, it therefore  follows that  the burden of  proving  that  the vehicle was  not faulty  lay with  the 1st  respondent who was in possession and use of the motor vehicle.  He did not discharge that burden.  Accordingly, I find that   the appellant  proved  on a balance  of probabilities  that the  bus was  faulty and it is  that  mechanical fault that  could have  caused  the mishap of reversing  on the hill on its own since the  driver  stated  that he  engaged  the No. 1  gear  but the vehicle   was unable to go  uphill .  Instead, it went back and rested on a tree on the side of the road.

In Kenya Bus Services Ltd V Dina Kawira Humphrey CA 295/2000 the Court of Appeal, per Tunoi, Omollo and Githinji JJA observed quite correctly that:

“Buses, when   properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation.”

The above decision was also cited with approval in Nyeri Court of Appeal Civil Appeal No. 22 of 2005.  Similarly in Nairobi CA 179 of 2003 RahabMicere Murage estate of Esther Wakiini Murage V Attorney General & 2 others [2015] e KLR the Court of Appeal reiterated that:

“Well driven motor vehicles do not just get involved   in accidents…..”

In this case, the driver of the vehicle did not disprove the allegation that he was negligent.  The  slippery and muddy state of  the road could not by itself  have caused the  motor vehicle  to reverse  on its own  and land  on its side  after hitting  a tree  on the side of the road.  The driver  was under  a duty to drive  carefully and if the road  was impassable, stop  and make  no  move upon  realization  that the road was  muddy and slippery. He driver took the risk of driving on such state of the road with 76 instead of 40 passengers.  It was dangerous for the 1st defendant’s driver to drive on such a road.  He was endangering   the lives of   the passengers. That danger was foreseeable in the circumstances of this case. It is for  that reason  that I find  that the trial  magistrate failed to  appreciate  the weight  or bearing  of circumstances admitted and proved  hence, this court is entitled to interfere with that  finding as to the negligence of the 1st defendant (( see Peters Vs Sunday Post Ltd [1958] EA 424. ) I do not see how the driver of the motor           vehicle would have found it to be unsalable to ask his passengers to alight before attempting   to go up the slope. In my view, going up when the vehicle was overloaded and the road muddy and slippery was an act of recklessness or carelessness on the part of the driver.

For those reasons, I set aside the decision of the lower court so far as it relates to liability.  I reassess liability on negligence from 50:50 to 100% as against the driver of the 1st defendant.  As the 1st defendant/respondent admitted that the driver was his agent or servant in the cause of  authorized  duty,  I find  the 1st  defendant/respondent  vicariously liable for acts  of  his driver, agent  or servant  then driving  or in  control of the accident  motor vehicle.

The above exposition settles issues No. 1 and 2.

On whether the 2nd respondent  could  be held  liable (vicariously for the negligent  acts of the  1st respondent  and or his driver, the appellant contended that the  2nd  respondent  having permitted  its workers/employees  the appellant included  to  be ferried  in a defective  bus, should  be held  liable as well. On the other hand, the 2nd respondent maintained that it was not aware of any defects on the bus.

Further, that it had a contract of service  with the 1st respondent  who undertook  to ensure  the safety of employees  while  on transit  by taking a  comprehensive  insurance  cover, which would  ensure that  in case  of  an accident, those  employees  would be covered.

There is no dispute that the bus in issue belonged to the 1st respondent who had a contract of service with the 2nd respondent to transport the latter’s workers.  The 1st respondent was therefore a transporter contractor.  It is  also not  in dispute that  the 2nd respondent   was not involved  in the management  or the  servicing  of the subject bus, or  even driving it since the driver  thereof  was employed  exclusively  by the  1st respondent.  It was therefore the contractor/ transporter’s primary duty to maintain the bus.

However, the bus was on duty when the accident occurred.  The  fact that  the bus did not  belong  to the 2nd  respondent  and that  it belonged to the independent  contractor  and that  therefore the 2nd respondent  should not  be held  vicariously liable  for the negligent  acts of the 1st  respondent’s  driver is a matter  which was  decided  by the Court  of Appeal in the case of Sielle and Another V Associated  Motor  Boat Company  Ltd and Others Civil Application 31/1967 where  the Court of Appeal for East Africa was faced  with the question of whether an  independent  contractor  can be  deemed to be an agent  of the  defendant.  The court held:

“Where  a person delegates a task  or duty to another, not a servant to do something  for his benefit, or for the joint  benefit  of himself  and the  other, whether  that other  person be called agent or  independent  contractor, the employer  will be liable for negligence   of  that other  in performance  of the task, duty  or act.”

From the above authoritative  decision, it is clear that albeit  the 2nd respondent’s counsel tried to  persuade  this court with the  contract of  service  and what it   provided for in terms  of the  contractor’s obligations and liability  to  ensure  the safety of the workers  and to take  a comprehensive  insurance cover against  such risks; it  was the sole responsibility  of the 2nd respondent to transport  its workers  to and from their  place of work.  That being  the case, it  was the 2nd respondent  to either  use their  own transport  or to contract  another  person to do so on their  behalf.  This was  to the 2nd respondent’s benefit  because it  enabled   its workers to  get to and from the designated  work place  on time which  must have definitely impacted  on their  overall  performance.  It was not the employees who decided which transport they should use to and from work.  It was the duty of the 2nd respondent to provide the workers with a safe means to transport.  If it assigned that responsibility to another person then that other person became the 2nd respondent’s agent(s).

It is the humble view of  this court  that if the 2nd respondent  had not  contracted the 1st respondent  and therefore  the use of  the subject  accident bus, then liability would  not attach to them but since  they contracted  the transporter to  carry out  a duty which the  2nd respondent’s themselves  were  supposed to perform, then the 2nd respondent cannot escape  liability, however tight their contract  of service  was on who would be liable  in the event  of an accident  or injury  to the workers.  Accordingly, that ground of appeal on that issue succeeds.  See also the persuasive decision of Nzoia Sugar Company Ltd V David Nalyanya [2008] e KLR Per W. Karanja J (as she then was).

The ancillary question therefore would be, whether the 2nd respondent was in any way negligent.  The appellant pleaded as against the 2nd respondent that:-

It permitted the plaintiff to be carried   in a defective motor vehicle.

It failed to provide a safe system of transportation to the plaintiff.

The appellant   further relied on the doctrine of Res Ipsa Loquitor and vicarious liability.

In the evidence by the appellant, he reiterated the acts   of negligence as pleaded against both respondents which the respondents denied.  The respondents also pleaded contributory negligence by the appellant in that:-

He failed to fasten his seat belt.

Failed to remain seated while the vehicle was still in motion.

Scrambled to get out of the vehicle when it was in motion.

Scrambled to get out of the vehicle when the same had safely stopped.

Jumped out of the vehicle through the window when there was no cause to do so.

Jumped   onto the shrubs at the roadside when there was absolutely no reason to do so.

Caused his own injuries as aforesaid.

It should also be  noted that  the  2nd respondent also filed notice  of claim against  the co-defendant  the 1st  respondent  pursuant  to  the provisions of  Order 1 Rule  21  of the Civil Procedure  Rules, relying  on the express written contract  between them for transportation  of workers  wherein the 1st respondent undertook  to take appropriate  insurance  measures  against risks  with regard to  the usage  of the motor vehicle  and to keep  the 2nd respondent  free from and  indemnified  against   any liability that  may arise out of the usage  of the  motor vehicle.

As earlier  stated in this judgment, there was absolutely no evidence  adduced  to the effect that  the  appellant is one of those people  who scrambled  or pushed  or  shoved to get out of the motor vehicle  following the mishap.  I have  also not found any evidence on record  to show  that the  appellant failed to  remain seated  while the vehicle  was still in motion  or that he jumped  out of the  vehicle  through  the window  or jumped  onto the shrubs  at the  road side  when there was no  reason to do so or that  he  caused the  injuries on himself.  On the contrary, there is clear evidence that the bus was overloaded with 76 passengers yet the same had the capacity to carry 40 passengers.

In my humble view, the 2nd respondent directly contributed to the occurrence of the accident.  It permitted the 1st respondent’s driver to carry excess passengers into the bus.  It is for those reasons that.  I find  that the appellant  proved to the required standard  that  the 2nd  respondent failed  to provide  a safe  system  of  transportation  to the plaintiff.  This  court  has already found by  inference that vehicles  when  driven, properly, maintained  properly and serviced  properly do  not just  get involved  in  accidents .  The act  of the  bus  reversing  on a  hill of  its  own was in my view and  in the circumstances  contributed  to by, among  others, defects on the bus  and or overloading  of the bus.

To my mind 76  people on  a 40 sweater  capacity bus is  by  far a large  number of people  and in excess  of what the  bus could comfortably carry, which is nearly  double  the number.

But  with the  appellant’s  own evidence  that the  bus was  overloaded  by nearly double the  number, can  he escape liability?  I think not.  He agreed to be ferried aboard an overloaded bus.  He cannot therefore escape partial liability in this case.

Accordingly, I would in the circumstances  find that  the appellant   was 20% liable for  the accident though  my finding  is predicated on different  reasons  from  those of the trial  magistrate.  There  is no evidence that  the appellant  was forced to board  the overloaded  bus  or that  he was seated  in the bus and protected  at the excess  passengers  who were boarding the  bus after it was full to capacity.

The doctrine of Res Ipsa Loquitor was also pleaded by the appellant.  In my view, that  doctrine  would be  applicable in  the circumstances  of this case  even if negligence  was not proved  since  the accident  did happen, which was self  involved.  Even if the bus was not driven  recklessly  and or there  was no bad weather  and or  bad condition  of the road  or overloading; the only presumption one can make out of the  bus failing  to climb the  hill  and reversing  and hitting  a tree is that  the driver  failed to manage  or control  the motor vehicle.  And since  accidents   do not  just happen on their own, even in the absence  of evidence of  overloading  or mechanical  defects of the vehicle, the driver  would be  held liable  under  the doctrine  of Res Ipsa  Loquitor.

On quantum of damages the appellant complains that the trial magistrate awarded damages   that were inordinately low. I have perused   the plaint which   pleaded injuries sustained by the appellant as

Blunt  injury  on the back

Blunt injury on the chest

Blunt injury on the right shoulder.

The medical  produced  by Dr Wokabi  as per his  examination  of the appellant on  15th November 2006 stated that   the appellant gave  a history of generalized  pain over  the trunk.  The chest  and back  pains  and  a painful shoulder (right) and wrist  joint which  pain  persisted  for six months after which  it subsided.  He was off duty for 3 days.  There was on examination no abnormality in the injured areas.  He had fully recovered at the time of examination.  The P3 form showed that  the  appellant  had sustained  blunt injuries  on the back, chest and shoulders  and the  degree of injury  was  classified  as harm.

When he went for examination in 2006 before Dr Wokabi, the plaintiff complained of having   been injured on the right wrist as well.  He produced the sheet from the company clinic.  He was No. 21 on the list of several patients attended to following the accident.  He was treated for right wrist joint injuries only.

Although, the injury to the wrist was not   pleaded, the trial magistrate found that it had been proved by the production of initial treatment notes.  She also found that the P3 form did not reflect the initial injuries which she found irregular.  There is   no challenge by the respondents to that finding by the trial magistrate.  It is not in dispute that the injuries sustained by the appellant were soft tissue injuries which were blunt.  It is also not in dispute  that the P3 was filled  about  5 months  after the accident  and the appellant  explained  reasons for  the delayed report  to the police was because  the 2nd respondent had promised to compensate   the injured  workers.  It is  further  not in dispute that the  plaintiff  called  PW4  the clinical officer who  testified  that the plaintiff only  complained  of injury on right  wrist joint.  It is further  not in disputes  that the appellant  never went  back to the  clinic  or to any other hospital for further treatment  and he never  adduced  evidence  that he sought  any further  medication for the alleged blunt injuries  to  his back, chest and right  shoulder.  If  the appellant  had suffered  those injuries  as pleaded, this court does not  understand  why he  did not  seek any  further medication since  the clinic  only treated  him for right wrist  joint  injury.  He did not  say that  he felt  the pain later and  he did  not explain why the P3   had different  injuries from those  in the I initial  treatment  notes.  It is for that reason that I concur with the finding of the trial magistrate that the only injury proved was the soft tissue injury to the right wrist.

That being the case, I find that the award of  kshs  20,000 for such a minor soft  tissue injury was in the circumstances  of this  case sufficient  to compensate  the appellant for  the injury sustained  and therefore  the complaint that the award was  inordinately low  is not merited  and I dismiss it.  I find no reason to interfere with the award and therefore I uphold the award by the trial magistrate.

In the end, except to the extend stated herein, this appeal regarding quantum of damages is dismissed.  The appeal challenging liability as against the 2nd respondent and as apportioned is allowed.  I set aside the decision of the trial magistrate exonerating the 2nd respondent from liability.  I find that both respondents are liable in negligence for the material accident, and that the first respondent is vicariously liable for negligent acts of its driver.  I also find that the 2nd respondent was liable for the negligent acts of its contractor the 1st respondent. They are liable to the extent of 80%. However, in view of the fact that the 2nd respondent issued notice of claim to the 1st defendant/respondent who did not contest the claim by the 2nd defendant/respondent, and the fact that the 1st respondent did not contest the contract to insure an d compensate the 2ndrespondent’s workers,  I find that in the circumstances of this case, the 1st respondent is wholly to blame and therefore liable to the extent of 80%. I also find that the appellant was partly to blame for the accident for accepting to be ferried in an overloaded bus.  He shares 20% of the blame.

On costs, albeit costs follow the event, they are in the discretion of the court.  In this case, taking into account all circumstances of the case, I order that each party bear their own costs of the appeal.

Dated, signed and delivered in open court this 3rd day of February 2016.

R.E. ABURILI

JUDGE