Kenya Power & Lighting Co.Ltd v Kenneth Lugalia Imbugua [2016] KEHC 1315 (KLR) | Vicarious Liability | Esheria

Kenya Power & Lighting Co.Ltd v Kenneth Lugalia Imbugua [2016] KEHC 1315 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO.  538 OF 2012

THE KENYA POWER & LIGHTING CO.LTD ……………..….APPELLANT

VERSUS

KENNETH LUGALIA IMBUGUA …………………………...RESPONDENT

JUDGMENT

1. This appeal arises from the judgment and decree of Senior Principal Magistrate, C. Obulutsa in Milimani CMCC No. 1692 of 2008 delivered on 18th September 2012. The respondent herein Kenneth Lugalia Imbugua was the plaintiff in the subordinate court whereas the appellant herein Kenya Power   & Lighting Company Limited   was the defendant.

2. The respondent  sued the  applicant vide plaint dated  18th March  2008 claiming for  damages   for injuries sustained  while travelling  in the Appellant’s  car while   he  was  in the cause  of his  duty  as a passenger  and that following  that accident, he was compensated under the  Workmen’s Compensation Act.  He therefore  sought  general damages  for negligence  of the respondent’s driver  who  was the   2nd defendant  Mr  Raphael Gitau in the manner  he drove/ managed  and or controlled the accident  motor vehicle  registration No. KZX 429 along Mirema Road, Nairobi on or about the 20th March 2005.

3. The respondent/defendant  filed a  defence  dated  21st  May  2008  admitting  at paragraphs  2 and  3  thereof that  it owned the accident  motor vehicle; and that  an  accident did occur on the material  date and at the time and  place stipulated  in the plaint.

4. The defendant/ Appellant   however  contended that at the time  of the stated accident, its driver  Mr Raphael Gitau  had no  authority of the Appellant   to drive it  and that  the respondent    was travelling  in the said accident  motor vehicle  without  the authority of the  appellant.  Further, that the respondent  and the driver of   the material accident were  on a frolic  of their own  since the use of  the  accident motor  vehicle   was without  the authority  and consent  of the appellant.  The appellant  also  maintained  that the  journey   was unauthorized  hence the  respondent consented  to run the risk  involved  in such  journey.  It also denied    that it was vicariously liable for the acts of negligence   attributed to the driver of the material accident motor vehicle.

5. After hearing the parties, the trial magistrate entered judgment for the respondent/plaintiff. He found  that the appellant  herein   was  vicariously liable for the acts  of the second  defendant/driver  of the  accident  motor  vehicle and awarded  respondent  kshs  700,000 General damages, special  damages  as pleaded  and costs of   the suit.

6. The appellant   was aggrieved  by the judgment  of the trial court  and lodged  this appeal  vide   a Memorandum of Appeal   dated  16th October   2012 setting out  three  grounds of Appeal namely:-

1) That the learned magistrate erred in failing to hold that the respondent and the second defendant   were on a frolic of their own.

2) That the Learned magistrate erred in failing to hold that the appellant was not vicariously liable for the acts of negligence of the second defendant.

3) That the award of kshs 700,000 as general damages is excessive   for the injuries sustained d by the respondent.

7. The appeal was admitted to hearing on 7th October 2015 and directions   were given on 11th December 2015.  Both parties’ advocates agreed to have the appeal canvassed by way of written submissions   which they dutifully filed and exchanged.

8. The appellant’s submissions  were  filed on  24th February  2016  by the firm   of  Hamilton, Harrison & Mathews Advocates  whereas  the respondent’s  submissions   were filed  on 11th March 2016  by the firm  of Nelson Kaburu Advocates.

9. In their submissions, the appellants through their advocates urged the appeal by combining   grounds 1-2 together and urging ground No. 3 separately.

10. On the question of who bears  liability, the appellant  submitted that the general rule in   vicarious  liability  is that  a master is only  liable for the acts of  his servants   committed  during  the course  of their  employment.  They  cited  Storey V Ashton [1869] L.R. 4 Q B 476  where it  was  held that a  master  is only responsible  for the negligence  of his servant  if the act  complained of is  done in  the course of employment, and where a  servant  starts  on a  completely  new  and unauthorized  journey, then  no liability   will lie on the master  as the servant  will be deemed  to have been on a frolic  of his own.

11. It was submitted that the determination of whether or not an employee   was on a frolic of his own is one of fact.  Reliance  was placed  on Sotik  Tea Highlands Estate V Omayo [2007] e KLR and Selle & Another V Associated  Motor  Boat Company & Others [1968] EA 123  for the proposition  that an  appeal  from  the High Court  is by  way of a  retrial and the Court  of Appeal is not  bound to follow the trial  court’s findings  of fact  if it  appears  either  that he failed  to take into account  of particular  circumstances  of probabilities or if  the impression of the  demeanor  of  a witness is inconsistent   with the evidence  generally.

12. The appellant’s counsel  submitted, contending that  the evidence adduced  at the trial  proved that the  respondent  was not on duty  on the material   date of the  accident   and that  he  and the second  defendant, who  was  the driver,  were on a frolic  of  their own.

13. That the  respondent alleged  that  he had  been requested   by the  2nd defendant   to accompany  him in taking a sick  colleague  to hospital and that   before heading  there the two went to the  second defendant’s  home where   they collected  some medicine  since the   2nd defendant is alleged  to have been unwell.  That from  the testimony of Lawrence Nganga, the respondent  and  the  2nd defendant  arrived  in the morning   and were scheduled  to attend a  private  function  which meant   that the  two had  their own  plans  which  were not  within the scope of their employment.

14. Further, that in any event, the respondent herein   was not on duty on the material day and neither   was the   2nd defendant authorized   to take the respondent’s motor vehicle for personal use.

15. It  was further  submitted  that the evidence   was clear that   the  appellant   did not  require the respondent  to pick up or take  an employee  to hospital   hence  the journey   was completely  new and  unauthorized  by the appellant.

16. For the above reasons, it was   submitted that the appellant could not be vicariously liable for the accident and injuries   sustained   by the respondent. Reliance    was placed on CMC Motors Group Ltd V Rousalis  and Another CA  231/2000 where one  of the appellant’s   employees-Clay,  took the respondents  car for  test drive but before returning  it to the  appellant’s  workshop  went for lunch and  after coming out of his  home, after lunch, found the car had been stolen.   The Court of Appeal overturned the High Court’s decision which had found the appellant   vicariously liable for Clay’s acts.

17. On the second  issue of whether   the award  was  excessive for the injuries   sustained, it  was submitted  that the  award of  damages in the sum of shs  700,000 was excessive  in light of  the  injuries  sustained by the respondent  and that the  trial  magistrate  failed to consider the appellant’s  authorities and entirely relied on the respondent’s  authorities in his decision on  quantum  of damages. Reliance  was  placed on  Phillip Muoka  V Salim Ahmed  ( citation not provided)  and Kiparen V Attorney General & Another (  pages   61-62  and  82-84)  of the record of appeal  wherein  a sum of  shs 300,000  was awarded    where allegedly the injuries    sustained   were similar  to the ones  suffered   by the respondent herein.

18. The appellant therefore urged this court to allow the appeal and set aside the judgment of the trial court, with costs to the appellant.

19. In his  opposing submissions  filed  on 11th March  2016, the respondent’s  counsel  Mr Nelson  Kaburu submitted  that on liability, the test is whether the authority  to drive the motor vehicle was given   hence the  purpose of the  journey.  That in this case, what mattered   was that the employer had an interest in the use of the vehicle at that particular    time and that it had authorized its driver the second defendant to drive.  The respondent’s  advocate  also  posed a  question thus: If the  driver  was not  in the course  of  his employment  why  was he  paid  workmen’s  compensation which is payable  for accidents occurring  in  the course  of employment?  That  by paying workmen’s compensation to the respondent, the appellant  is deemed  to have  ispso facto  admitted, impliedly or expressly  that the respondent  was  injured  while  at  work and  therefore  the appellant   was estopped  by that payment  and  admission, from alleging  otherwise. That in addition, the appellant paid all medical bills without doing so on a without prejudice basis   and without asserting a Good Samaritan’s role.

20. The respondent  also raised  issue with the appellant  leaving out  of this appeal  its driver  who was  the second  defendant  in the  subordinate  court, which  is a fatal  omission, it  was so submitted.  That in any event, there  was  interlocutory judgment  entered  against  the driver who neither   entered   appearance  nor filed  defence  and neither  did the  appellant  call him  to testify.  That the  appellant  instead  called a witness   who could not  tell whether  the driver of the  accident  motor vehicle  had restrictions as to the use of  the vehicle  or whether  the appellant  had any standard rules as to the  use of  its vehicles  or restrictions on drivers  on how  to use or not  to use it vehicles.  That the applicant’s  witness  admitted that the  respondent was a passenger  in the accident  motor vehicle  as an employee  of the appellant, and that   the appellant’s witness  also  concluded  that the “two  were on duty  officially.”   That the  witness admitted in cross examination that the function the driver  was to attend  to  was for  later that  day and  further confirmed   payment  of   workmen’s  compensation to the two employees   and further, he admitted  that the   2nd defendant never  stole the vehicle  and  that an  employee  has authority  to use the  vehicle   and that a driver  can give  a lift to a co-worker.

21. Mr Kaburu submitted that the case  of Muwonge  V Attorney  General referred  to in the  subordinate  court settled  the law in East  Africa  on vicarious liability than the ancient  case  of Storey  v Ashton [1869] relied on  by the  appellant.   That more recently, the Court of Appeal revisited   the subject  of vicarious  liability  in Kenya  Horticultural  Exporters  Ltd V  Julius  Munguti Maweu  [2010] e KLR  where there  was  no evidence  of restriction on the driver  by the employer, and that without   such evidence, no frolic  can be  inferred  or found.  Further that even a frolic would not constitute a defence   so long as the employer has an interest in the use of the vehicle on the journey in question.  Those employers   must take care to employ disciplined workers.  Further  reliance    was placed  on the Jubilee Insurance Company Ltd V Keemu  Musyoka  CA  43/1984  where  Madan, Kneller  and Nyarangi JJA  held that an unauthorized  way of  doing   authorized   work does not  constitute  a frolic.

22. In the end, counsel for the respondent  summed  that  the accident was self  involved  and inference of negligence was made via the  doctrine of  Resipsa Loqutur  which evidence was not disproved hence full liability attached to the driver and the  appellant   owner of the motor vehicle  and employer  of the 2nd defendant   driver, against whom interlocutory  judgment   was entered.

23. On quantum of damages   as awarded, it was submitted by Mr Kaburu   that the injuries sustained by the respondent were life threatening.  He lost a gall bladder and portion of the liver, and that the cases cited had been decided long ago and inflation had taken its toll on the Kenyan shilling.  That the respondent suffered 15% permanent incapacity.  That the trial court took into account inflation and time lapse since the awards were made in the cited decisions cited by the parties.

24. Further, that it had not been demonstrated that the trial court    took into account an irrelevant factor or failed to take into account relevant factors.  That  assessment  of damages involves  personal discretion of the trial court  and it is not  enough for   this court  to interfere  with that  discretion    on the ground that  it would  have made a  higher   or lesser award  had it been  the one  determining  the  suit. The respondent’s counsel urged this court to dismiss the appeal with costs.

Determination.

25. I have carefully considered the record of Appeal, grounds of appeal as well as   submissions by learned counsel for the parties   to this appeal and the applicable case law.

26. As this is the first appellate  court in this matter, I am obliged to re-evaluate and reassess the evidence  on record  and arrive  at my own independent  conclusion, bearing in mind that I  neither heard nor   saw the witnesses  as they testified  hence  I would not  be in a position to test  their demeanor.   These  are the established principles  applicable in appeals as  espoused  in section 78 of the Civil Procedure Act and as interpreted in several decisions of the Court of Appeal including the cases of Selle V Associated  Motor Boat  Company Ltd  [1968] EA  123andAbdul Hameed  Saif V Ali  Mohamed  Solan [1955]  22 EACA  270).

27. In my consideration of this appeal, I shall have regard to the two issues framed by the appellant: that of vicarious liability and that on quantum of damages.

28. Evaluating the evidence on record, the respondent testified as PW1   and stated on oath that he worked with the appellant in 2003 as Workshop Assistant   in Ruaraka.  That the second defendant Raphael Gitau was also his colleague and working as a driver.  That on the material date  the second defendant   had asked  the respondent to accompany him  take a colleague  to hospital from Mathare  North and enroute , the said driver  said he wanted to  pass by  his  home first.  He drove the motor vehicle KZX 429 belonging to the appellant employer.  The guards   allowed him out.  Along the way, the driver lost control of the vehicle and hit a tree.  The respondent was injured in the abdomen and taken to Matter Hospital where   part of his liver and gall bladder    were removed.  He stated that being the appellant company staff, him and the 2nd defendant driver were allowed to board any vehicle.  He had not fully healed   from the injuries.  He produced a medical report prepared by Dr Wokabi, police abstract, demand letter and receipts for payment to Dr Wokabi as exhibits.

29. In cross examination, the respondent stated that he    was a camp attendant.  That his colleague   had asked for company and that it   was on a Sunday.  He stated that he had recorded his statement with investigations.  He stated that his statement stated that the driver had met him at the canteen, but that he had boarded at the Training School.  That the driver   said he was first going to wash the vehicle   which   information he may have   forgotten to state in his evidence.

30. In re-examination, the respondent stated that the statement was not in his writing. That it was written   by the security officer.  He confirmed that he boarded the vehicle   outside the training   school gate.

31. The appellant called DW1 Mr Huba Ngenyi who testified on oath that he worked for Kenya Power and Lighting Company as a Protection Security Officer.  That he was ordered by his employer   to record a statement which he identified and produced as an exhibit.  That the plaintiff /respondent   was a passenger in the accident motor vehicle as an employee of the appellant/ 1st defendant.  DW1 testified that the driver of the motor vehicle had indicated that he would have a function with the plaintiff.   He returned the motor vehicle and fell ill. He then left the training school through a different   gate.  That the driver told the witness that the accident was caused by a cow as a result of which it hit a tree.  He also produced the statement recorded by the plaintiff/respondent herein which gave a different story.  He further produced statements made by guards at the gate.  The defence witness concluded that the plaintiff and driver    were on duty officially.

32. In cross examination, the defence witness denied knowing Mr Muthaiwa.  He further stated that there was no record as to how the motor vehicle left the driving school.   DW1 confirmed that the driver’s statement   was that he was to have a function later that day and that he found out that the driver was on duty.  He confirmed that the two staff members were paid workmen’s compensation and their benefits by Kenya Power and Lighting Company.  He stated that the driver did not steal the motor vehicle.  He also stated that an employee has authority to use the motor vehicle and that a driver can give a lift to a co-worker.

33. In re-examination, DW1 stated that the driver had admitted that the motor vehicle was not to leave the compound and further stated   that leaving the compound should have been through the   gate.

34. At the close of the defence case, both parties’ advocates filed written submissions.  The respondent’s counsel filed his submissions on 3rd July 2012.

35. On liability, it was submitted, relying on the Omron case on various liabilities that there is a presumption in law that a vehicle is driven for the benefit or gain of the owner.   Further reliance   was placed on the Karisa V Solanki [1969] EA 318 case.  It  was   submitted that the plaintiff’s testimony   that he  was on duty  on the  material day was supported  by DW1  who testified  that the plaintiff   was officially  on duty and that  the defence   did not  demonstrate  that  the plaintiff had breached  any of the procedures  for use of the company  vehicles  or what authority he required which he did not get  before driving off with the accident  motor   vehicle.  Further, that DW1 had confirmed that   a driver could give a lift   to a fellow employee hence there was no evidence of breach of any authority   or lack of authority.

36. Relying   on Muwonge v Attorney general CA 68/97it was submitted that in law, an employer is liable   even where an employee   acts wantomly or in breach of express instructions or even criminally, which decision settles the Kenyan position on the matter.  Further, that the accident occurred at 10. 00 O’clock and no frolic was proved since the driver was to attend a function later in the day not that morning.  Further, it was submitted that workmens compensation paid to the two workers   was only payable   to employees   who are injured while engaged upon their work hence the appellant herein was vicariously liable.

37. On damages, the plaintiff  proposed   shs  700,000 on account of the serious injuries  sustained  by the plaintiff  and relied on 4 decisions  wherein  damages   awarded  ranged  between  200,000- 350,000 .  Those decisions were 1994-1994 decisions.

38. In  rejoinder  submission, it was submitted on behalf of the appellant  herein who  was the  1st defendant  that  since the evidence  was clear that the driver  and the  plaintiff  were on their own frolic,  the appellant    was not vicariously liable for  the acts of negligence  of  the  second defendant (driver) and hence the appellant was not liable  to compensate the respondent for the  injuries sustained in the accident. Reliance was placed on CMC Motors Group Ltd V Rousalis and Another[2000] LLR 2375   whose facts   were said   to be similar to those of the present case.   In that  regard, it    was contended that  the detour   by the 2nd  defendant  to his house   was a frolic  of his own as  he  was  not  on the first defendant’s/appellants’  business, and   neither  was   the plaintiff   herein engaged  in the business of the appellant   when he  was to  be found in the accident   motor vehicle  at that material time.

39. The defence counsel  maintained that  the decisions relied on by the  plaintiff showed that  for vicarious  liability  to attach, the driver of the  motor vehicle  has to be  seen to have  been driving  the motor vehicle  for  the  joint benefit of himself and  the owner and that  the Karisa V  Solanki (supra) case   supported  that  position;  that the appellant had  adduced evidence unlike  the defendants  in the Karisa  case, to show that  the accident motor vehicle was not, at the material time,  being  used for  the benefit  of the appellant herein at all.  That going to the house to collect   medicine and the plaintiff’s accompanying the driver to hospital   was also a frolic thereby rebutting the presumption as required by Karisa V Solanki case(supra).

40. On damages payable, the appellant submitted in the subordinate   court that should the court find the appellant liable, then general damages   awardable would not exceed   shs 300,000.  Reliance    was placed on Jared Wayodi V Frank Nzioka Kalla and Kiparen V Attorney General & Another [1997].  In the said decision, general  damages awarded   was shs  160,000 and shs  300,000/- for injuries  sustained, which injuries s  were said  to be  comparable  to the  ones  sustained  by  the respondent  herein.  It was also contended that the authorities relied on by the plaintiff referred to more serious injuries   than those suffered by the plaintiff.

41. The trial  magistrate, Honourable  Obulutsa  upon hearing both parties and considering their submissions, observed that although the appellant  herein had through its  witness DW1  claimed that the vehicle   had left the premises/training  college   in unclear  circumstances   and that  the second  defendant  was an unauthorized  driver, that that evidence  was  unsupported  and that it did  not controvert  the plaintiff’s  evidence that  the driver asked  the respondent/plaintiff to escort the driver take a colleague, Mr  Mutheu  to hospital.  Further, that the appellant   did not call Mutheu to dispose the plaintiffs claim.

42. In addition, the trial magistrate found that no gate records or guards were availed to testify to the fact that the driver left the college without authority.  Finally, the trial magistrate wondered  aloud  as to why the hospital bills  for the plaintiff   as well as  workmen’s  compensation  were settled  by the appellant  if the  vehicle  was  not authorized to leave the appellant’s premises as claimed.

43. The trial magistrate  compared the two cases  cited,  that  ofCMC Motors  Ltd  V Rousalis  & Another  (supra) and Karisa  V Solanki (supra) as  well as  Muwonge  V Attorney General (supra) and concluded that on a balance of probabilities, the plaintiff  had established negligence on the part  of the driver  and the appellant herein as employee  and  owner of the motor vehicle   was vicariously liable.  He awarded the plaintiff shs 700,000 relying on  all the four cases cited by  the plaintiff  which he compared with the two  cases cited by the  appellant herein, taking into account  the injuries  sustained, and  inflation from  the time  those decisions   were  made.  He also awarded shs  2000/-special damages   pleaded  and proved, together with costs and interest

44. It is that judgment that provoked this appeal as discussed herein above.

DETERMINATION

45. Having carefully considered the   grounds of appeal  as presented    and argued  for and against  by both  parties in their  written submissions, I have also given equal consideration to the evidence  adduced in the lower court and  the findings  and decision of  the  trial court.  In my humble  view, the main  issues for   determination in this  appeal are:

i. Whether the appellant  was vicariously liable for the material accident for acts of  its driver wherein the respondent  was injured

ii. What damages are awardable having regard to the injuries sustained by the respondent?

iii. What orders should this court make?

iv. Who should bear the costs of this suit?

46. On the first  issue of  whether  the appellant    was vicariously liable  for the acts of its driver, the   second defendant, it  was   submitted by the appellant   that the 2nd defendant  who was  the  driver of  the appellant was  on his own frolic  and that neither  was the respondent  authorized   to  ride in the   accident motor vehicle  being  driven at  that time by the  2nd defendant hence vicarious  liability would not   attach to  the appellant  for the  negligent  acts  of the driver.  The case of CMC Motors Ltd(supra) was cited to that effect.

47. The respondent maintained that the appellant   is liable because there was no evidence that the 2nd defendant    was not authorized to use the vehicle. Further,  that DW1 admitted in his  testimony  that the  two officers   were officially  on duty and that the  2nd defendant could  give a lift  to his workmate  the respondent  herein.

48. The respondent  also maintained  that the  fact that  the appellant paid the injured  employees workmen’s compensation and even settled  their medical   bills   was a clear  admission that the material motor  vehicle  was on an authorized  journey and that the respondent was an authorized  passenger  therein.  Reliance  was placed  on Muwonge  v Attorney General(supra) andKenya Horticultural  Exporters Ltd  V Julius  Munguti  Maweu  (supra) wherein no restrictions  were  placed  on the driver  by the employer.  It   was held that no frolic can be   inferred or found.  Further, it was submitted that  the  Muwonge case seemed  to suggest  that even a frolic  would not constitute   a defence so long as  the employer  has an interest  in the use  of the vehicle  on the journey in question. Relying  on Jubilee Insurance  company Ltd V Keemu Musyoka  CA 43/94 CA, it   was contended  by the respondent that the position that an authorized   way of  doing  authorized work does not  constitute  a frolic.

49. The appellant faults the trial magistrate for failing to hold that the appellant   was not vicariously liable for acts of the second defendant who was on a frolic of his own.

50. The trial magistrate believed the respondent’s  evidence and  the cases he relied on and found that the respondent  was not on a frolic of  his own hence the appellant   was vicariously  liable for  the reasons given  in the judgment more particularly, that there   were no gate records  availed; no guards  were called to testify on the authorization  of the vehicle; the second  defendant  driver was not called to  rebut  the evidence  of the respondent;    and more  importantly; that the  appellant  could not  have settled  the respondent’s  medical bills and  even paid him  his full workmen’s compensation if the respondent  was an unauthorized  passenger in  the accident motor  vehicle, if  the second  defendant had been  on his own frolic or  on an unauthorized  journey   at the time  of the accident.  The court  further dismissed   reliance  on the  case of Storey V Ashton [1889] LR 4  QB 476  which he stated that it  was an  old case  which had  been overtaken  by the settled  position in Kenya as  was decided  by the Court of Appeal in  Muwonge  V Attorney GeneralandKenya   Horticultural Exporters Ltd  V Julius Munguti Maweu as well as the  Jubilee Insurance    Company Ltd  case (supra) .

51. Therefore on whether   the second defendant  and respondent  were on their  own frolic or not as  contended  by the appellant, the burden of  proving that  the two employees  of the appellant  who were using their employer’s  vehicle  where  unauthorized  at that time, lies  with the employer. The Black’s Law  Dictionary, 9th  Edition defines  ‘frolic’  as:

“An employee’s significant deviation from the employer’s business for personal reasons.  A frolic is outside the scope of employment, and thus the employer is not vicariously liable for the employee’s actions.”

52. On the other hand, the  Free Dictionary.com defines  frolic  to mean:

“ Activities  performed by an employee  during working  hours that  are  not considered   to be in the  course  of his or  her employment,  since  they are for the employee’s  personal  purposes  only.”

53. The  term ‘frolic’  is an expression that has been  used in judgments  dating  more than   200 years, to describe  acts  which are   outside the course of employment and, accordingly, not  covered by the vicarious liability of the employer .  The case of  Joel  V Morison  [1834] EW HC  KB  J  39 concerned the  scope of vicarious   liability   of an  employer   for  the acts of  his employee.  The facts of that case were that Joel was struck down by a horse and cart, whose driver   was Morison’s agent.  Joel   was crossing a street   in the city, but the driver’s job was simply to travel   between Burton Crescent Mews and Finchley.  The driver had detoured to visit a friend, when the accident occurred.  Morrison argued that he   was not liable for Joel’s injuries because the agent had strayed off his path. Parke B.J Held:

“ If the servants, being on their   master’s  business took a  detour to call upon a friend, the  master will be responsible…….but if he  was  going on a  frolic  of his own…..the master  will not be liable.”

54. In that case, Morrison  was found liable  for reasons  that the  doctrine of respondeat  superior meant  that the principal is liable  for his agent’s  negligence  only  when the agent  is acting  at the time of  the accident  in the  “ cause of  his employment.” Thus,  the agent   was  doing  Morison’s business   and although  he went,  momentarily  out of  his master’s  implied  command, the employer   was found  vicariously liable for  acts of  its  employee/agent.

55. From the above  English decision, I find that  the test to be  applied is whether the  tort  was  so closely  connected  with the second defendant’s employment  that  it would be fair and just  to hold his employer  liable for  it.

56. Every case, nonetheless, must be  determined  on its  own facts, the particular   fact of an  incident  may thus give  rise to  a combination of proximity  in time  and space, and other  circumstances  might serve to enhance the risk of injury   through employment.  Case law  in the local  jurisdiction  which decisions  are binding  on  this court, have   developed broad  factors  to be taken into  account in deciding  such cases  thereby  widening the scope of  vicarious  liability. Those  factors  include:

a. The context   and circumstances  in which the   acts  of negligence  occurred, since  these may establish that the  act was incidental to,  and therefore  within the  scope of, employment;

b. The time  and place  where the  acts of  negligence   took place  which, while relevant, may not  be conclusive;

c. The fact  that  the employment  provided  the employee with the  opportunity  to perform the acts, although this does  not necessarily mean that the acts   were within  the scope   of their  employment.

57. Although the appellant  submitted relying on Storey  V Ashton [ 1869] LR 4 QB  476  as well  as CMC Motors  Ltd  case which  decisions I find support  the proposition   that a master  is only  responsible   for the negligence of his servant  if the act complained of  is done   in the course of  employment  and that  where  a servant  starts  of a completely   new and  unauthorized  journey, then  no liability  will be  on the master  as the servant   will  be deemed  to have been  on a frolic  of his own; it  will be   noted that   the Storey V Ashton case  was decided  on 7th May 1069 whereas   the CMC  Motors  Group Ltd  V Starros  Rousalis  & Another (supra)  case was   decided  on  9th February  2001.

58. That being the case,  and taking   into account  that theKenya  Horticultural  Exporters Ltd  Vs Julius  Munguti  Maweu case relied on by the  respondent  was  determined  on 26th  March 2010,  I would in the circumstances find that the decision  in  the Kenya  Horticultural  Exporters Ltd  Vs Julius  Munguti  Maweu case  is more applicable  in the circumstances  of this case, and  proceed  to apply it.

59. In the instant appeal and on the facts and evidence available, it is not in doubt that the respondent was an employee of the appellant.  It is also not in dispute that the respondent hiked a lift in the accident motor vehicle which   was being driven by the second defendant driver, who was the respondent’s colleague at work.  It is also  not  in dispute that the  said  motor vehicle   was involved  in an accident  as described  by the respondent, that the 2nd defendant  lost control of the motor vehicle   and hit  a tree as a result  of which the   respondent  was  seriously injured.

60. One curious aspect of the judgment of the lower court is that it simply determined that the appellant    was vicariously liable for the accident.  It never went on to determine the negligence of the 2nd defendant in the manner in which he drove the accident motor vehicle on the material day.   This being the   first appellate court, I would, pursuant to Section 78 of the Civil Procedure Act, reconsider the evidence and determine whether the 2nd defendant was liable.

61. From the evidence of PW1  who  was the plaintiff/respondent  herein, which evidence   was subjected to  cross examination, the  2nd  defendant  driver lost control of the motor vehicle  and hit  a tree.  No more details are given as to why the driver lost control of the motor vehicle.

62. It is now settled that motor vehicles which are well maintained    and well managed or driven do not just get involved in accidents.  There must be a cause and in the absence of any evidence to prove otherwise, the driver is deemed to have been negligent. How the accident happened was a matter within the knowledge of the driver of those accident motor vehicle belonging to the appellant herein, as well driven motor vehicles do not just get involved in accidents.(see Rahab Murage v Attorney General Civil Appeal 179 of [2003] eKLR. )

63. In this appeal, the driver was sued and particulars of negligence particularized against him.  However, he neither entered an appearance nor filed any defence to the suit and exparte interlocutory judgment in default of defence   was entered in favour of the respondent against him.  The respondent then proceeded to formally prove his case against the said driver.   Curiously, although the said second  defendant neither  appeared nor  filed defence, his handwritten  statement  which DW1  testified  that he   was  “ compelled  by his  employer   to record” from the said driver 2nd defendant, was produced  in evidence by DW1.

64. In producing that statement made by   the 2nd defendant, no basis   was laid for its production.  Nothing is mentioned on the whereabouts of the 2nd   defendant.  Was he dead?   Was he outside the jurisdiction of the court? Could he not be reached within reasonable time?   Was he still in employment   of the appellant?   Nothing  more   was said  about the 2nd   defendant and why  his  statement concerning the material accident as given by him to his employer  was being  produced in evidence by  another person without  calling its  maker to be subjected to cross examination.

65. Section 33 of the  Evidence Act  Cap 80  Laws of Kenya  provides  for circumstances  under which  a statement, written, or oral, of  admissible  facts made  by a person  who is  dead, or who cannot be  found, or who  has become  incapable  of giving  evidence  or whose  attendance  cannot be  procured, or whose  attendance  cannot  be procured  without  an amount   of delay or expense  which in the  circumstances  of the case appears to the court  unreasonable, are themselves are admissible.

66. I have  examined  the record  again  and again and I have  not seen  any  of the cases  set out  in Section  33 of the  Evidence Act  being  applicable  to the circumstances  of this case where a statement of a person who was a party to the suit was produced by another person without laying a basis for such production.

67. The  question is, why did the  2nd defendant   not enter  an appearance   and or file defence to the  suit  yet his  written statement   was being  used  in evidence  to prove the innocence  of the appellant  with regard  to liability? I find that although that very statement of the driver 2nd defendant was admitted  in evidence  without any objection on the  part of the respondent  being raised, and  therefore  in the absence  of any  cross  appeal, I   will not make  any finding on its  admissibility   or non  admissibility  at this stage. Nonetheless, it  raises   an antenna, and  this court cannot   shy away  from categorically  determining whether there was any evidential value attached to such evidence which was purely hearsay  evidence, and whose  evidential  value  was watered  down by  the fact  that the maker of the statement   was not in court to  take an  oath  and be subjected  to the rigours  of cross examination,  the same way PW1  the respondent herein was.

68. I have re examined the said statement as produced and the handwritten statement of PW1 and it is clear that the two statements were not written by the same person since they are not written in the same handwriting. DW1 stated on oath that he was compelled by his employer to record a statement of the 2nd defendant/driver. The same witness DW1 also produced statements made by two guards at the gate.  There is no explanation given why the guards Kennedy Ruto and Kennedy Omasele could not be called to testify and state what they witnessed   on the material day.  Their  evidence  was   equally hearsay  concerning the vehicle  movement  on Saturday 19th March  2005  and Sunday  20th March 2005  and no basis   was  laid for  the production  of those two statements made by the guards, without  calling their  makers.  That evidence    too was purely hearsay and of no evidential value.

69. Then there was the annexed document to the two guards’ statements showing movement of the accident motor vehicle.  The  record  only shows  movement for  17th March 2005  and 18th March 2005  until   19th March  2005.  If the accident   motor vehicle   was driven out of the  Training School on  20th March 2005, the question is, why is  it  that the record  for 20th March  2005  was never  produced?   In the absence of the evidence of any guard manning  the entry  and exist gates to the effect that  the vehicle  was  not authorized   to  leave the  Training School  on that material day,  all that  was said  by DW1   was nothing   but hearsay and of no evidential value.

70. Furthermore, I find the recordings in the said vehicle movement register not consistent.   For example, there  are no signatures of the drivers  on  18th and  19th March  2005 whereas  there  were signatures  on 16-17th  March  2005. Further, there is an entry for 20th March, 2005 in between 2 consecutive entries made on 19th March 2005 for motor vehicle movement. How could 20th March   2005 come in between  2 entries  made on  19th march 2005 for the material  motor vehicle  KZX  429  leaving at  7. 00 hours?

71. No  explanation  was given by  the appellant’s  witness  DW1 for  those discrepancies, yet it is the  same witness who testified that the 2nd defendant   was not  authorized  to  drive out  the  accident motor vehicle.

72. There is also the second exhibit document which is dated 19th April 2005, a report   addressed to the Company Secretary from the Protective Services Officer (Accidents Motor vehicle), a Mr L. Nganga.

73. In that report of findings and recommendations, the author   entirely relied on the statements of the driver and PW1 which   he found contradictory.  L. Nganga states in that report that the driver admitted that the vehicle was not authorized.  The statement   by Mr L. Nganga who never testified   as a witness was reproducing    statements of other people   who were never called as witnesses.  My finding is that it was hearsay and though admitted in evidence, no evidential   value or weight attaches to it.  Mr L. Nganga  was relying  on hearsay  since at no one  point did  he say that he is the one  who recorded the statements  of the persons he  was saying ‘ ‘they  said, or ‘learnt  from.’

74. Further, although   DW1  who  produced  that “report  from the  owner of the motor vehicle” stated that the report does not  show when  he the ( 2nd  defendant) left the Training School on that material day, he is the  same witness who categorically concluded that   “ the two  were on duty officially.”

75. In addition, as I have stated  above, the exhibit document  showing  movement of motor vehicles  shows that  on 20th March  2005  at  7. 00 hours, motor vehicle KZX 428 left the  school  at odometre   reading  252613 destined  for Mathare and the record shows the journey being  ‘ authorized destination’ and the motor vehicle being   driven by Mr Gitau  and the gate keeper’s  signature  in duplicate is present.  That entry is the one  which falls  in between the first two entries  for 19th March  2005  for the same   motor vehicle  and  the same driver, just like the last   three entries  for 19th March  2005, in respect  of motor vehicle  KAH 908 F  driven by Njuguna.

76. With the  above  revelations, I do not  find the  vehement  and strong  submissions  by the appellant’s  advocates  material  to this appeal.  Their submissions are not supported by evidence on record.  Submissions, in my view, however super and strong, cannot substitute the evidence adduced    by parties on record. In Douglas Odhiambo Apel & another v Telkom Kenya Limited[2014]eKLR, the Court of Appeal affirmed the trial Judge’s finding that:

“So as things stand, there is no evidence on record upon which I, as a court of law, can undertake an assessment of damages. There are averments in the plaint that the plaintiffs suffered loss and damage. The plaintiffs must place before the court evidence to sustain those averments. Pleadings and written submissions are not evidence.”

77. In other words, submissions on matters of fact must be made with reference to the evidence.

78.  Furthermore, on the issue of  cross examination  of the makers  of those statements  which  were produced   without calling  their makers, and without   laying   any basis  for production of those  written  statements, I hasten to add  that cross  examination  is a powerful  tool in the hands of  an adversary  in proceedings.  Non grant of  an opportunity  to cross examine  a witness  may attract  the doctrine  of fairness and may be  held to be  a violation of principles  of natural  justice  ( see  Andhra  High  court in Somagutta Sivankara  Reddy  And V Palapandha  Chinna  Gangappa , citing with approval K. Raghuram Babu V D.G. of  Railway Protection Force, New Delhi where the Full Bench  of Andhra High Court  of India  was deciding on Section 33  of the Indian Evidence  Act  1872 which is  similar  to our Section 33 of the Kenyan Evidence Act  Cap  80 Laws of Kenya. The issues   in that case were:

i. Whether   Section 33  of their Evidence Act  would apply to the question  of admissibility  of evidence  of a witness who   has been examined  in chief  for being  used as  evidence   in the same  proceedings?;

ii. Whether  the fact that the witness  whose examination in chief  has  been recorded   was not subjected to  cross examination would render  the evidence admissible;   or

iii. Whether the fact of the witness having not been cross examined would merely affect the evidential   value of the witness.

79. In the  Andhra  High  court in Somagutta Sivankara  Reddy  And V Palapandha  Chinna  Gangappacase, the witness died after  examination in chief.  He, therefore, could not be produced for cross examination.  The court held that the evidence given by a witness, although he had not been cross examined, may be admissible in evidence. However, weight  or probative value  attached  to such  evidence  would  depend on the circumstances  and facts  of  each  case.  (See Food Inspector v James N.T., 1998 cr. LJ 3494, 3497 (Ker).

80. However, the court in the same Somakutta Sivankara (supra) case held that the evidence would be admissible if the   cross examination was avoided or deliberately prevented.

81. In the present case, the record is clear that there was   no evidence that   any of the makers of the statements   which were admitted in evidence    were dead or could not be found.  The  appellant  chose not to  lay any  basis for  the production of statements made by persons  other than  their makers   which as  I have stated above, was  nothing but hearsay evidence, which  did not  meet the  threshold to be accorded   any  evidential  value.   The respondent   was not accorded an opportunity to cross examine the makers  of those statements  which violates the principle  of the right to a fair hearing as espoused  in Article   50(1) of the  Constitution, and which right  cannot  be limited under Article  25 of the Constitution.  That evidence by the defendant/appellant in my humble view ought to have been excluded by the trial magistrate.

82. In the end, I find that there was sufficient evidence adduced by the respondent to prove that the second defendant    was wholly to blame for the occurrence of the accident involving KZX 429 wherein the respondent   was a passenger.  Section 112 of the Evidence Act   places the burden of proof squarely on the 2nd respondent to disprove the allegation that he was   liable for the accident.  The Section reads:

“112 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.”

83. As I have  stated  elaborately, there  is no reason why the  2nd  respondent did not  tender  evidence to show that  the accident   did not occur in the manner  pleaded and as testified by the respondent, that the driver drove  without  due care and attention  and that he  lost control   of the motor  vehicle  and hit a  tree.

84. Reverting back to the question of whether  or not  the appellant   was vicariously  liable  for  the negligent  acts of the 2nd  respondent, Black’s Law Dictionary  9th Edition  defines  vicarious  liability  as:

“ liability  that a  supervisory party ( such as an employer) bears  for the actionable conduct  of a subordinate  or associate    ( such as   an employees) based on the relationship between    the two parties.”

85. The said Dictionary goes further to explain  that:

“ the  vicarious  liability  of an employer  for torts  committed by  employees  should not be confused with  the liability  an employer  has for   his own  torts.  An employer  whose  employees  commits  a tort may  be liable  in his  own right for negligence   in hiring  or supervising  the employee.  If  in my business    I hire a truck driver  who has a record  of drunk driving and on whom one day I detect  the smell of  bourton, I,( along  with my employee may  be held  liable for negligence if his  driving  causes injury- but  that is  not “vicarious   liability”- I am  held liable  for my  own  negligence   in hiring that employee or  letting  him drive   after I knew  he has been drinking.” Kenneth S. Abraham, the Forms   and Functions s of Tort Law 166 (2002).

86. It is  a well established  principle  that an employer  is vicariously  liable for the tortuous  acts of its  employees  where there occur  “ in  the course of  employment.” This principle is enshrined in the common law doctrine known as “let the master answer.”

87. In Kenya  Horticultural Exporters  Ltd  Vs Julius Munguti  Maweu, (supra) the court   was clear that:

“The appellant gave the accident vehicle for use by its driver.  If   there were  any conditions  imposed  thereof  only itself  knew  them and  it  was obliged to call evidence  on  it.   The trial  judge  must have  had  the foregoing provisions  when she  held that failure  by the appellant  to testify  was a factor  which would  lead to an inference of absence  of restrictions.”

88. In the instant  case,  DW1  made  it clear in his  sworn evidence  that the 2nd defendant  and  respondent    were on “ official  duty” on that material day that they were involved in the accident. The defence witness also  testified on oath  and produced  the material motor vehicle  movement  register  showing that  on  20th March  2005  the material vehicle  left  the Training  School  at  7. 00 a.m. to Mathare  and that that journey, according  to that exhibited document, was authorized.

89. There was also undisputed evidence that the appellant settled all the medical bills for the respondent.  That the appellant also paid the two injured staff workmen’s compensation is undisputed.   Workmen’s compensation is only payable to workers   who are injured while on duty and not to those injured while on their own frolics.  There is no evidence that the payments for the medical bills and workmen’s compensation were made on a without prejudice basis.  It therefore follows that it was upon the appellant to prove that   the driver   was not authorized to use the vehicle or that he was authorized but nonetheless went on his own frolics. It was also upon the appellant to prove that the respondent was not authorized to use the subject motor vehicle at that material time. In this case, there was no such evidence adduced by the appellant that the driver was on his own frolics.

90. What the  appellant attempted  to adduce was   evidence that had no probative   value  as it was  no more than  statements  made by  persons  who  were  not called  as witnesses  without  laying  any basis for such   production  and or admissibility.  It is for that reason  that I find  the trial magistrate’s  findings  on the  vicarious liability of the  appellant   was not  in error  and I therefore  affirm those  findings that the appellant   was vicariously liable  for the negligent  acts  of  its driver.

91. I hasten  to add that  even if  the driver  did detour  when the  material  accident occurred, that detour or deviation  was not  significant.  It  was  a minor deviation from the employer’s business for personal reasons;  which falls  within the scope of employment  and therefore  the employer is still  vicariously  liable  for  the employee’s actions, unlike a frolic  which is   an employee’s  significant  deviation from the employee’s  business  for personal  reasons, and therefore  outside the scope of employment and for which an employer  would not be vicariously  liable for such an employee’s actions. (See page 515 of Black’s Law Dictionary, 9th Edition.

92. In my humble view, and considering  the circumstances in which  the acts of negligence  occurred,  I find that the material  accident   was incidental  to  and  was within the scope  of  the driver’s employment.  Further,  the time  and place where  the acts of  negligence took place are  relevant  and go   to show that the driver  had  not significantly deviated  from his  employer’s  employment for personal  reasons.

93. In addition, I find that  the  driver  having been  authorized  to use the motor vehicle  on the  material  day, his employment  provided  him with  an opportunity  to perform  the negligent acts.

94. Finally, the respondent passenger was not just any other ordinary passenger.  He was the appellant’s employee and the appellant’s witness DW1   acknowledged that the respondent    was lawfully on duty when he was injured hence, the payment to him and the driver   of their full workmen’s compensation and settlement of their medical bills.

95. I am persuaded  that the above  position    settles  the issue of  whether  or not  the appellant   was  vicariously  liable  for the negligent  acts of  its driver/agent  or servant, which  answer  in the affirmative.

96. On the second important issue of  what damages  are awardable  to the respondent, having  regard to the injuries  sustained  in the material accident, It is  not disputed that  as a result of the material accident, the respondent  sustained very serious  injuries  which  were described  by Dr  Wokabi  in his medical  in his  medial  report dated  29th January  2008  as follows:

“The medical and clinical evidence indicate that he (the respondent) indeed sustained major life threatening intra- abdominal injuries.  The gall bladder and liver   were seriously injured.  Fortunately, he received prompt surgical intervention and his life    was saved.   The loss of a large portion of the liver and gall bladder is not going to adversely affect him.  The liver when cut off particularly is known to regenerate.  One can also live   reasonably well without a gall bladder.  However, the major  abdominal  trauma  and the subsequent  surgery    are likely  to predispose  him to  complications of recurrent   intestinal obstruction which would  be a severe  complication.  The surgery to the anterior  abdominal  wall  will weaken  this wall  to an  extent  that he  could  develop  hernia.  He will be advised not to overstrain his abdominal wall lest he   develop this complication.  Disability that will be associated   with this will be approximately 15% (fifteen percent).

97. The appellant  contends  that the damages  of shs  700,000 awarded  to the respondent  for  pain suffering  and loss of amenities   were excessive  for the injuries  sustained  and that the case  of Kiparen V Attorney General & Another   was more  relevant  as it is a  1997  case as  well  as  the case of  Phillip Muoka  V Salim  Ahmed , a  1995.   They urged this court to award shs 300,000 in the event that   it finds the appellant liable.

98. The respondent’s counsel, on the other hand maintained that the cases cited were decided   long time ago and inflation had taken its toll on the Kenyan shilling.  Considering the injuries  sustained  by the respondent  and the 15%  permanent  incapacity, counsel urged  the court to  uphold  the award by the trial court  since it had  not been demonstrated  in this appeal that the  trial  court   took into account  an irrelevant  factor or that it failed  to take into  account a relevant one.   Mr Kaburu also urged this court not to   interfere with the trial court’s discretionary power of awarding   the damages that it   did.

99. I have re-examined the submissions made by the parties’ advocates on quantum of damages and the authorities relied on.  The trial  magistrate  in awarding  shs 700,000/- general  damages  considered  the submissions  authorities  and proposals put forward  by the respective  parties’  advocates.  He considered that the proposal by the appellant   was on the lower side   and took into account inflation from the time the cited authorities   were determined.  He accepted the respondent’s proposal.

100. The respondent’s counsel  in the lower court relied on HCC  229/1988 John Mochi V Mabati Rolling Mills  Ltd  where the plaintiff suffered  fracture  of the pelvis, burns on the left arm and intra abdominal  injuries  involving rapture  of the bladder  and injury to the urethra.  He had   an indwelling catheter. He remained hospitalized for 2 months and complained of impotence, lower back pains and pains in the pelvis, difficulty in passing urine, inability to do heavy manual work and scars on abdomen and left arm.  He was awarded shs 350,000 in an undated judgment.  He also relied on Phillip Kioo Muoka Vs  Salim R. Ahmed  Nairobi HCC  1569/91  decided  in 1993 where  Githinji  J awarded   shs 300,000 to the plaintiff who sustained injuries  involving  major  abdominal   and chest  injuries  involving rupture  of the spleen, rupture  of the diaphragm  with subsequent  collapse  of the  lower left   of lung.   The spleen had to be removed  through major  operations.

101. In the  Jared  Wayodi  Elphas  V Frank  Nzioka  Kalla   1993  LLR  7677 (HC) case, the plaintiff   was awarded  shs  160,000  for the injuries involving cut wound  over  the right  forehead, deep abrasions  behind  the left shoulder, abrasion over the  right chest  wall, head injury  resulting in cerebral concussion and injury  to the abdomen resulting  in a tear in the right lobe of the liver.  He was hospitalized for one week and outpatient   for 3 months.

102. In Kiparen  V Attorney General  1997- shs  300,000  general damages  were awarded to the plaintiff   who sustained    among others, laceration of 4cm  on the under surface   on the right  lobe   of the liver, a tear through  the anterior  wall of the first   part of the duodenum, leaking  bile and a large   retro peritoneal  haematoma.  He was admitted for 3 weeks   and went through an operation.

103. In the instant case, the plaintiff   was admitted in hospital for one week.  His permanent incapacity   was assessed at 15%. The authorities  cited  do not provide   the percentage of permanent  incapacity, albeit  the trial  magistrate  understated the  permanent  incapacity  to be  10%  instead  of 15% given by Dr Wokabi.

104. This court from the above assessment finds that no two cases can be the same on the injuries sustained, and that the trial magistrate in assessing damages took into account relevant factors in exercising his discretion.  He compared the injuries sustained in the cases cited with those suffered by the respondent.  He  also considered to time lapse  since those  decisions  were   made-between 1993-1997 and the fact that  inflation  had taken a toll on the  Kenyan shilling  hence what   was awarded  in 1997  cannot  have the  same value   as an award  made in 2012, a difference  of  15  years.

105. The appellant in this appeal has not demonstrated  before this  court that the  award  of shs  700,000 made in favour of the respondent  was manifestly  excessive  having regard to the circumstances  and injuries sustained  by the respondent.

106. An assessment  of damages is in the  discretion of the trial court  and  an appellate  court must be slow to  interfere  with an award of  damages by the trial court  especially  where there   is no proof  that the  trial court   made a manifestly excessive  or low  award or that  it took into  account irrelevant  factors or failed to take into account  relevant  factors.

107. In this case, I find that there is absolutely no reason why this court should   interfere with the award of shs 700,000/- made by the trial court.  Accordingly, I uphold that award and dismiss the ground of appeal challenging an award of general damages of shs 700,000 in favour of the respondent.

108. On special damages, the respondent had pleaded shs 2,200/- being shs 200/- charges for police abstract and shs 2,000/- for medical report.   He however only produced   a receipt for shs 2,000/- for medical report by Dr Wokabi which the trial magistrate correctly awarded him as he strictly proved what he had specifically pleaded.  He is   awarded shs 2,000/- as pleaded and proved.

109. In the end, I find that  this appeal  fails  on all the  three grounds of appeal  as set   out in the  Memorandum of Appeal dated   16th October  2012  and I dismiss  the appeal.  I uphold the decision and decree of the trial court and award costs of this appeal   to the respondent.

Dated, signed and delivered in open court at Nairobi this 27th day of July 2016.

R.E. ABURILI

JUDGE

In the presence of:

Miss Kariuki holding brief for Makori for the Appellant

Miss Rose Ndinda-clerical staff from the firm of Nelson  Kaburu-who says that  Mr Kaburu is away in Machakos and that she had been trying to get an advocate to hold their brief in vain

CA: Adline

R.E. ABURILI

JUDGE

27th day of July 2016.