NIKKU AUTO GARAGE vs C ITOH & COMPANY LIMITED [2004] KEHC 2258 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 431 OF 2001

NDORIA IKUWA T/A

NIKKU AUTO GARAGE ………………………………… APPELLANT

VERSUS

C. ITOH & COMPANY LIMITED ……………….…… RESPONDENT

JUDGMENT

This is an appeal from the Judgment of the Hon. Kanyangi, Senior Principal Magistrate, dated March 6, 2000 in RMCC EJ 189 of 1994, who found for the Respondent in a breach of contract case and awarded it Kshs.224,181/= with costs and interest.

Briefly, the facts of the case as found by the lower court were that the Respondent (Plaintiff in the lower court) delivered its motor vehicle to the Appellant (Defendant) for repairs. The Appellant, in breach of contract, failed to take proper care and while at his garage was negligently driven by his servant/agent who caused an accident resulting in damage to the motor vehicle.

The Appellant is aggrieved by that decision and has appealed to this court, stating nine grounds of appeal which essentially give rise to three issues: 1) was there a “contract”, delivery not having been “proved”; 2) was there negligence proved against the Appellant; and 3) was there a case established for “vicarious liability?”.

The appellant argued that there was no evidence of “delivery” of the motor vehicle to his garage; that he was abroad at the material time and that the garage was closed; that his proper business name was “Niku Auto Services” and not “Niku Auto Garage”, and finally that there was no proof of “negligence” on the part of any of his servant or agent to hold him vicariously liable.

I have perused the record of proceedings and am satisfied that the learned Senior Principal Magistrate applied the correct principles of law, and appreciated properly the evidence before him, in reaching his decision. He found as a question of fact that the motor vehicle was indeed delivered to the Defendant/Appellant for repairs, and that the garage in question was indeed the garage of the Defendant, and whether it was called Niku Auto Services, or Niku Auto Garage made no difference in law. The Defendant was the legal proprietor of his business, which is an un incorporated legal entity, and legal liability attaches to him personally in whatever name he chooses to trade.

The Respondent/Plaintiff having delivered the motor vehicle to him or his garage was under no obligation to prove negligence on the part of his servants. The onus was on him to disprove negligence. The Plaintiff could properly rely on the principle of res ipsa loquitur , and hold the Defendant vicariously liable for the acts of his servants/agents that caused him damage. I find that there is no basis to this appeal and dismiss the same with costs to the Respondent.

Dated and delivered at Nairobi this 21st day of April, 2004.

ALNASHIR VISRAM

JUDGE