JOHN GATHURI & Another v JUDITH M. M. MAKOKHA [2012] KEHC 1940 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Civil Appeal 122 of 2010

(Appeal arising from the judgment and decree of the Senior Resident Magistrate F. Kyambia in Bungoma Court in civil case no.421  of 2009)

JOHN GATHURI                          :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::                   1ST APPELLANT

AKAMBA BUS SERVICES LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::         2ND APPELLANT

VRS

JUDITH M. M. MAKOKHA        ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::                  RESPONDENT

JUDGMENT

This is an appeal from the decision of the subordinate court in which the Respondent was awarded Ksh.250,000/= in general damages and Ksh.2,000/= in special damages for injuries she had suffered in an accident on 8/9/2008 involving motor vehicle registration KAQ 832 E make Scania bus at Kimaeti along Bungoma/Malaba road. It was the Respondent’s case that the bus belonged to the 2nd Appellant and was at the time being negligently driven by the 1st Appellant who was the employee and/or agent of the 2nd Appellant. The trial court agreed with the Respondent. The Appellants had pleaded in defence that the vehicle did not belong to the 2nd Appellant. They had denied that the 1st Appellant was the employee or agent of the 2nd Appellant. The fact of negligence was also denied. This appeal challenges the findings on liability and quantum.

The record of the lower court shows that the Respondent testified and called PW2 Samuel Omondi Buya to say that he was travelling with him in the bus. He then called Clinical Officer Elias Adoka (PW3) of Bungoma District Hospital to testify on the injuries suffered. No evidence was called in defence. The Respondent had blamed the driver of the vehicle for speeding and for dozing while driving. They, however, did not say they knew him or that he was the 1st Appellant. They did not say that they knew him to be the employee of the 2nd Appellant. Their testimony was that the bus belonged to “Akamba”. They were not led to say that “Akamba” was the 2nd Appellant. The Respondent produced a police abstract to show that the vehicle belonged to the 2nd Appellant. It was submitted before the trial court that on the basis of the Court of Appeal decision in Thuranira Karauri v. Agnes Ncheche, Civil Appeal no.192 of 1996 at Nyeri a police abstract was no sufficient to show that the person named therein was the owner of the vehicle; that the Respondent was required to produce a certificate from the Motor Vehicle Registry to show that the 2nd Appellant owned the vehicle. The trial court ignored the submission and went on to find that the police abstract was enough. The correct position is that the trial court was bound by the decision of the Court of Appeal on the issue.

The result is that the Respondent called insufficient evidence to show that the vehicle subject of the accident belonged to the 2nd Appellant. The driver of the vehicle was the 1st Appellant, or that the 1st Appellant was the employee of the 2nd Appellant.

I have taken into consideration the fact that the police abstract was made by the police who did not testify and therefore its contents as to who was the driver and to whom the vehicle belonged were not proved. The trial court was wrong to find that the Respondent’s case on liability had been proved on balance. With this determination it would be futile to discuss the issue of quantum.

The appeal is allowed with costs. The judgment of the lower court is set aside and in its place there shall be a judgment dismissing the Respondent’s suit with costs.

Dated, signed and delivered at Bungoma this 2nd day of October,  2012.

A.O. MUCHELULE

JUDGE