Olando v Gemini Stores Limited [2023] KEHC 19254 (KLR)

Olando v Gemini Stores Limited (Civil Appeal E010 of 2022) [2023] KEHC 19254 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19254 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E010 of 2022

WM Musyoka, J

June 30, 2023

Between

Bonface Ouma Olando

Appellant

and

Gemini Stores Limited

Respondent

(Appeal from judgment and decree of Hon. FY Kulecho, Senior Resident Magistrate, SRM, in Busia RMCCC No. 27 of 2020, of 14th March 2022)

Judgment

1. The appellant had sued the respondent, at the primary court, for compensation in respect of injuries that he sustained, following a traffic road accident on November 20, 2018, along Mumias-Busia road. The appellant was a pillion passenger on an unidentified motorcycle, which was knocked down by vehicle registration mark and number KBW 243W, said to have belonged to the respondent, and liability was attributed to the respondent, on account of negligence. The respondent filed a defence, denying the accident, and everything else pleaded in the plaint. In the alternative, the respondent pleaded that, if any accident occurred, it must have been due to negligence on the part of the appellant, or he contributed to it.

2. A trial was conducted. On liability, the court held both parties equally liable, in the absence of independent evidence to resolve the issue of liability. On quantum, the court assessed general damages at Kshs 250, 000. 00, and specials at Kshs 6,000.

3. The appellant was aggrieved, hence the appeal. Only 2 grounds are listed, around the issue of liability.

4. The appeal was canvassed by way of written submissions.

5. The appeal turns on only one issue, liability.

6. The appellant was a pillion passenger on a motorcycle. He was not the rider/driver of the motorcycle. Liability was apportioned against him, yet no evidence was led to demonstrate that he contributed one way or other to the accident. In cases of this nature, where a defendant attributes negligence to someone else, who is not a party to the proceedings, third party proceedings ought to be initiated by the defendant, to have liability apportioned as between the defendant and the third party. That is what the respondent should have done here, initiate third party proceedings against the owner or rider of the motorcycle that the appellant was a pillion passenger on. I note that the rider died in the accident. I do not know whether he was owner of the motorcycle, or whether he was an employee or agent of the owner. If he was the owner, then his estate ought to have been brought on board as third party. If he was a mere employee or agent or servant of the owner, then the owner should have been sued by the respondent. The absence of the motorcycle owner would mean that the respondent ought to bear liability at 100%, as the person with whom it should share liability with was not made a party to the suit, and such party cannot be condemned unheard. See Viviane Anyango Onyango & another vs. Charity Wanjiku[2017] eKLR (Janet Mulwa, J), West Kenya Sugar Company Limited vs. Lillian Auma Saya [2020] eKLR (Njagi, J), Mohamed Muyunga vs. Vinoth Abwolet Eshepet [2020] eKLR (Riechi, J) and Jane Njeri Macharia vs. Godfrey Murimi Muya & another [2020] eKLR (Ngaah, J).

7. The appellant and the police witness testified that the vehicle owned by the respondent had only one headlamp working. The appellant stated that it misled the rider of the motorcycle on which he was passenger, while the police witness stated that he saw the vehicle, and only one headlamp was working. No inspection report was produced, but the evidence by the appellant was adequate on a balance of probability.

8. Overall, I find merit in the appeal. I hereby allow it, in the terms that the holding by the trial court, that liability be apportioned at 50:50, is set aside, and replaced with a finding and holding that the respondent bears liability at 100%. The appellant shall have the costs of the appeal.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 30THDAY OF JUNE, 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMr. Omondi, instructed by Omondi & Company, Advocates for the appellant.Mr. Abande, instructed by Omondi Abande & Company, Advocates for the respondent.