Alfred Kioko Muteti v Timothy Miheso & another [2015] KEHC 520 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.232 OF 2002

ALFRED KIOKO MUTETI….....…………..PLAINTIFF

VERSUS

TIMOTHY MIHESO …..……....…….1ST.DEFENDANT

EMBASSY OF CHILE …...………….2^ND DEFENDANT

JUDGMENT 

1. By an amended plaint dated 18^th January, 2006 and filed in court on3rd February, 2006 the plaintiff in this case Alfred Kioko Muteti sued the defendant Timothy Miheso and the Embassy of Chile jointly and severally claiming for general and special damages. In the said amended  plaint the plaintiff claims that  on or  about the 10^th day of February 1999, he was lawfully crossing Ngong Road Nairobi when the  1^st defendant  so negligently drove, managed  and or controlled motor vehicle  registration No. 70CD2K belonging  to the 2^nd defendant  Embassy of  Chile that he caused  the said vehicle to violently  hit the plaintiff  as a result of  which the plaintiff sustained  serious injuries. It is alleged that the 1^st defendant was negligent in that he:

1. Drove at an excessive speed in the circumstances.
2. Failed to exercise and or maintain any effective control over the said motor vehicle.
3. Failed to have any sufficient regard for pedestrians expected in the said road and particularly the plaintiff.
4. Failed to stop, apply breaks in time or at all, to swerve, or any other way so as to avoid the accident.

2. As a consequence of the above alleged acts of negligence, the plaintiff allegedly sustained severe injuries and suffered loss and damage.  The injuries pleaded involved.

1. Multiple injuries to the head.
2. Dislocated right shoulder joint.
3. Injury to the lower back and trunk.
4. Injury to the right leg.
5. Injury to the right iliac crest region.
6. Loss of consciousness of 4 days.

3. The plaintiff also claimed for special damages thus

a. Medical report        -   1,500

b. Medical expenses  - 36,000

c. Police abstract          -    100

Total                            37,600

4. It was further claimed that the plaintiff was still undergoing physiotherapy at a cost of shs 600/- per session and transport of shs 500/- per session.
5. The plaintiff claimed that the accident motor vehicle belonged to the 2nd defendant hence it was vicariously liable for acts for negligence attributed to the 1^st defendant.  The plaintiff therefore prayed for judgment with costs.
6. On 20^th December 2011, the 2^nd defendant  filed a defence under protest contending, principally that the accident motor vehicle  was not  registered  in its name; the 1^st defendant was not its driver or  agent  and or servant; and that the court  lacked jurisdiction to hear and determine the dispute  involving  the 2^nd defendant   as it enjoys  full diplomatic immunity from prosecution, pursuant to the  provisions of the Privileges and Immunities  Act, Cap 179 Laws of Kenya hence  the suit was filed in bad faith and  contrary to the law, praying for its  dismissal with costs.
7. The 1^st defendant did not enter any appearance or file defence. By an application dated  6^th April 2009, the 2^nd defendant  had sought to have the suit  struck out  on account that the Embassy could not be sued in court as it enjoyed  full diplomatic  immunity  but by a ruling dated 5^th December 2011, the Honourable  K.H. Rawal J  ( as she was then) dismissed  that application on the grounds that  the plaintiff’s claim could not  be  struck out  at the interim stage as it was not absolutely hopeless  with no hope to breathe any life into it, hence the hearing  that  followed on merits.
8. I had the advantage of hearing the parties. The plaintiff testified  as PW1, on oath and stated, relying  on his witness statement filed on 15^th October 2012 and stated that when he was crossing  Ngong Road  on 10^th February 1999, he was  knocked by motor vehicle 70CD2K as a result of which he  sustained  serious injuries.  That the accident motor vehicle was driven by the 1st defendant an employee of the 2^nd defendant and he was taken to Masaba Hospital where he received treatment.  He produced case summary as his exhibit 1.  He was admitted and discharged on    26^th February 1999.  He also produced a CT scan report as exhibit 2 and schedule of physiotherapy which he continued after being discharged from hospital as an exhibit 3.  He continued with physiotherapy in Machakos.
9. The plaintiff also produced a bundle of documents filed including medical report by Dr.  Stanley Kimuhu as exhibit 12.  The rest of the documents which were  all  produced  by consent  are demand  notice  dated 4^th May 1999, P3 form and  police abstract  dated on 15^th March 1999, physiotherapy report of 17^th December 1999 by J.W. Karimi, receipts for 1500/- by Fair Care Medical  Services  for medical  report  dated 4^th May 1999, receipts dated 30^th April 1999 and 30^th March 1999 for  6600/- and 8400 for physiotherapy, medical  report by Fair Care Medical  Services  signed by Beatrice A. Sidede registered  clinician dated 20^th April 1999 receipts  dated 28^th May 1999 for 6000 and 29^th June  1999 for  6000/- for physiotherapy services at  J.W. Karimi. Other receipts  for physiotherapy  are dated  30^th July 1999 for 5400 and 27^th August 1999 for 4800,28^th September 1999 for 4800; 20^th October 1999 for 5400’ 30^th November 1999 for 5400;and  17^th December 1999 for 3000/-.
10. The plaintiff stated that  the 1^st defendant  continued to be  an  employee  of the 2^nd defendant  after the accident  as he saw  him on various occasions subsequent  to the accident ferrying the 2^nd defendant’s employees to and from the embassy offices  located at Riverside  Drive, Nairobi in motor vehicle 70CA 2K which knocked  the plaintiff on 10^th February 1999.  He stated that  as a result  of the injuries  on his head, dislocated  shoulder  joint with permanent  disability  and injury  to the lower back and  trunk, injury to right leg, right  iliac crest region and loss of consciousness, he lost his capacity  to hear and could  no longer  engage  in gainful employment due to the injuries  sustained  and that  injuries  on his head  affected his mental capacity.  He prayed for damages as claimed in his plaint.
11. In cross examination, the plaintiff stated that he was going to Lenana School when he was knocked and that he was not a resident of Nairobi.  That he look time to return to Nairobi for check up and that he got details of the motor vehicle from the police station albeit he did not   conduct an official search to establish its ownership.  He confirmed that according to the search done by the 2^nd defendant the motor vehicle in question was owned by H.E. Jose Manuel O.  But confirmed that he did not sue the registered owner thereof.  He also admitted that he had not enjoined the registered owner thereof to the proceedings.  He stated that he went to the Chilean Embassy to search for the 1^st defendant albeit he had no evidence that the said 1^st defendant was an employee of the 2^nd defendant.  He also stated that he did not write to the Chilean Embassy requesting for waiver of its diplomatic immunity to enable him sue it.
12. In reexamination the plaintiff stated that the copy of records he had been shown was dated 19th May 2008 whereas the accident occurred on 10^th February 1999.  Further, that  he had met  the 1^st defendant at the 2^nd defendant’s  premises  when he visited  there in 2002 and saw him driving  the same  motor vehicle  that injured  him.  The parties advocates agreed to have the police abstract and medical report by Dr. Kimuhu was produced by consent.  
13. At the close  of the plaintiffs  case, the advocates for the parties  agreed  and had the  documents  filed by the defendant on 14^th December 2012  and a statement of  Ambassador Konrad Paulsen produced  by consent  and the defence  case was closed.  The documents  produced by  the 2^nd defendant  were the 1^st  schedule  of the Privileges  and Immunities Act, Cap 179 Laws of  Kenya, copy of the records dated  19^th May 2008 for motor vehicle 70CD 2K and  the witness statement by Ambassador Konrad Paulsen.
14. The parties’ advocates filed written submissions.  The 2^nd defendant’s counsel filed her client’s submissions on 27^th February 2015 whereas the plaintiff’s counsel filed on 10th March 2015.  The parties advocates also agreed to highlight the submissions, which highlights were made on 19^th May 2015.
15. Mrs Mbugua counsel for the 2^nd defendant submitted that the 2nd defendant did not own the motor vehicle in question as shown by the copy of records produced by her client.  Further, that the plaintiff had not proved possession and control of the accident motor vehicle in order for vicarious liability to attach to the 2nd defendant. She maintained that the court could not confer ownership   of a motor vehicle.  She  also contended that albeit interlocutory judgment was entered  against  the 1^st defendant in  default of appearance and defence, there  was no  evidence that the said first defendant had conceded  to being  the driver, agent or  servant  of the  2^nd defendant  as claimed by the plaintiff, especially with the 2^nd defendant denying the fact of  being an employer of the 1^st  defendant as alleged. The 2^nd defendant further contended that it was being forced into a non existing relationship with the 1^st defendant.  On the issue  of diplomatic  immunity, the 2^nd defendant’s counsel submitted that the Privileges and Immunities  Act and the Vienna Convention  on Diplomatic  Relations are clear  on the rationale  for Diplomatic  Immunity, and that  Article  31(1) and 37  of the Convention  confers  immunity to diplomats and their family members.  It was further submitted that by dint of Article 2(6) of the Constitution of Kenya, 2010, the Vienna Convention is applicable to our Kenyan situation.  Similarly it was submitted that an Embassy enjoys diplomatic privilege and that Article 43 of the Convention refers to consular officers and employees.
16.  It was submitted  further by the 2^nd defendant’s counsel that the  plaintiff  had not proved that there was a consular  officer or employee  involved in the material accident  to waive  the immunity; and that  the registered owner of the accident  motor vehicle  who could  be a consular  employee  was not sued  hence the Embassy could not be  liable  for acts of  the owner of  a motor vehicle  who was not  a party to the suit.
17. Mrs Mbugua also submitted that the cases cited by the plaintiff all related to commercial transactions and had nothing to do with Embassies.  She submitted that under Section 16 of the Privileges and Immunities Act, there was no need to avail a certificate to prove immunity of the Embassy since the question had not arisen as to whether or not a person is entitled to the benefit of immunity or privileges and as an Embassy was not a person mentioned in Section 16 of the Act.  Counsel for the 2nd defendant further submitted that if judgment was entered against the Embassy, it would be impossible to execute that judgment   as the process of executing a judgment against an Embassy or High Commission it involves a lot of protocols and relationships with a foreign state.  She  relied on the English case of  Thai Europe Tapioca  Service Ltd V Government of Pakistan Ministry of Food and Agriculture  Supplies Imports and Shipping Wing [1975] 3 ALL ER  1961 cited in Ministry of Defence of United Kingdom  Government V Ndegwa[1982] CA 31/82 where Lord Denning  stated that;

 “except  by consent, the courts  in this country  will not  issue process  so as to entertain  a claim against  a foreign  sovereign as they could be  called to enforce  it by execution against  its property here.  Such execution might imperil our relations with that country and lead to repercussions impossible to foresee.”

18. Mrs Mbugua further submitted that under Article 32 of the Vienna Convention, the waiver of Diplomatic Immunity must be express.  She relied on the case of Ministry of Defence of Government of United Kingdom V Ndegwa (supra) to fortify that position.  The 2^nd defendant counsel maintained that  the Privileges  and Immunities Act grants  unrestricted  immunity  to Embassies  and which immunity  must be  respected and  upheld  by courts.  She urged the court to dismiss the plaintiff’s suit with costs.
19. The plaintiff’s counsel, Mr Adipo  submitted, relying on his written  submissions  filed on 10^th March 2015 and supported  by various  decided  cases  and  statute  law. On the issue of diplomatic immunity, Mr Adipo submitted that  Section 16 of the Privileges and Immunities Act uses  the term “person” and that  the ‘person’ named therein is a legal person  and not  merely an individual  hence  the 2^nd defendant  was under  an  obligation to produce  a certificate  from  the Minister pursuant  to Section 16 of the  Act  but in this case, opted  not to  benefit  from immunity before  complying  with the  requirements of the  law. Further, it was submitted that diplomatic immunity is not blanket immunity as Article 43 of the Vienna Convention excludes matters of road accidents from the doctrine of Diplomatic Immunity.
20. On the issue of  ownership  of the subject  motor vehicle, it was  submitted that the case  of Nancy  Ayemba  Ngaira  V Abdi Ali [2010] e KLR  was relevant .  In that case, it was held that ownership of a motor vehicle is not just confined to registration but there are various categories of ownership of motor vehicles. In this case, it was submitted  that the  2^nd defendant  had the  beneficial ownership of the accident  motor vehicle while the  1^st defendant  drove it  in the course of  his employment  with the 2^nd defendant. According to counsel, the plaintiff relied on what he saw the 1^st defendant drive out of the 2^nd defendant’s compound offices in Nairobi with the latter’s officials in the material accident vehicle.
21. On the issue  of the effect that the of default judgment  entered  against  the 1^st defendant  had on the 2^nd defendant  it was  submitted that  the plaintiff’s claim against  the defendants  is jointly  and severally  and which  issue is settled and cannot  be relegated.
22. On the issue of vicarious liability, it was submitted that since the 2nd defendant was a beneficial owner of the accident motor vehicle, it was vicariously liable for the acts of the 1^st defendant, its driver.  Counsel for the plaintiff relied on the case of KBS Ltd V Humphrey [2003] KLR 665. The plaintiff  also relied  on Mohamed & Muigai advocates  V Samuel Kamau Macharia  & Another [2008] e KLR ;Bingham and Benyman’s Motor Claims  Cases, 11^th Edition’ page 267; Mckean V Raynor Bros  Ltd Nottingham [1942] 2 ALL ER 650, 167 LT 369,86 Sol. Jo 376  Tabitha  Nduhi Kinyua V Francis  Mutua  Mburi & Another [2014] e KLR  & Jane  Wairimu Turanta V Githae John Vickery  & 2 Others  [2013] e KLR.
23. On quantum, the plaintiff;s counsel submitted that his client sustained injuries as contained in the medical reports and as pleaded in the plaint.  He prayed for kshs 800,000 taking into account inflation.  He  relied  on the authority of Phillip Kipkorir Cheruiyot  V Nebco (K) Ltd & Another [2006] e KLR  where  the plaintiff sustained fracture  of the right  hand  and dislocation of the shoulder  and was awarded kshs  600,000.  The plaintiff also prayed for shs 60,300 special damages, Costs and interest.
24. I have carefully considered  the  plaintiffs claim against  both  defendants, the defence,  the evidence, submissions  and the law both case law  and statutory enactments, together with the relevant international treaty instruments ratified b y Kenya and relied on by both parties.
25. The 2^nd defendant’s list  of issues  filed  on 24^th April 2014  are  7 in number namely:

1. Whether the 2^nd defendant was the owner of the motor vehicle registration No. 70CD 2K?
2. Whether or not the 1st defendant was under the instructions or employment of the 2^nd defendant at all material times to this suit.
3. Whether or not motor vehicle 70CD2K was being used for the official business of the 2^nd defendant.
4. Whether or not the present suit as against the 2^nd defendant is sustainable under the law.
5. Whether or not the plaintiff has a cause of action against the 2nd defendant.
6. Whether or not the 2nd defendant can be held vicariously liable for the actions of the 1^st defendant and the registered owner of motor 70CD2K.
7. Whether or not the suit as against the 2^nd defendant should be dismissed with costs.

26. In its submissions, the 2^nd defendant compressed the above issues into 2 namely: Ownership of motor vehicle 70CD2K and Diplomatic Immunity.
27. In my own assessment of the case herein, the following are the main issues for determination

1. Who was the owner of the accident motor vehicle?
2. Was the 1^st defendant the servant/agent or employee of the 2^nd defendant?  and  if so, whether  the 2^nd defendant  is vicariously liable for acts  of the 1st defendant .
3. Who was to blame for the accident?
4. Does the 2nd defendant enjoy diplomatic immunity in our Kenyan courts   and if so, can the suit herein be sustained against the 2nd defendant?
5. What orders should the court make
6. Who should bear costs of this suit

28. On the first issue of ownership of the accident   motor vehicle the plaintiff produced police abstract no.  A339046 issued on 13^th March 1999 showing that  an accident did occur on 10^th February 1999 along Ngong Road  involving motor vehicle  70CD2K and a  pedestrian  Alfred Kioko Muteti at about 2.30p.m.  The driver of the accident motor vehicle was recorded as Timothy Miheso of Box 45554 Nairobi.  The motor vehicle was insured by Lake Star Insurance Company Ltd policy no.  07/070/01558-98-2 expiring on 15^th February 1999.  The owner of the accident motor vehicle was not reflected on the said police abstract.  The plaintiff herein did not produce any other document, whether by way of a registration book or a sale or user agreement proving legal or beneficial ownership of the accident motor vehicle. Nonetheless, the 2^nd defendant  produced  a copy of records from the Registrar of Motor Vehicles showing  that the  accident  motor vehicle  was not owned  by the Embassy of Chile, but  by H.E. Jose  Manuel who was not a  party to this suit.  According  to the plaintiff, the  vehicle  belonged  to the second defendant  because he saw the 1^st  defendant driving it  in and out of  the Chilean Embassy long after  the accident.  To the plaintiff, it therefore follows that the 2^nd defendant must be the one beneficiary owning or possessing or using the accident motor vehicle, hence the owner thereof.
29.  Section 8 of the Traffic  Act, Cap  403 Laws of Kenya  provides that the person  in whose name  a vehicle is  registered  shall, unless the contrary is  proved  be deemed  to be the owner  of the vehicle. In this case, the 2^nd defendant denied ownership of the accident motor vehicle and went to the extent of availing copy of records to show who the owner thereof was at the time of the accident.  That registered owner is not a party to these proceedings. The burden of proving that the vehicle belonged to the 2^nd defendant lay on the plaintiff.  He was expected, as stipulated in Section  8 of the Traffic Act, to prove that  either  the 2^nd defendant  was the registered  owner of the  accident or  the beneficial  owner of the  subject  accident motor vehicle, at  the time of the accident. Thus, the burden of proof lies on the party who would fail if no evidence at all were given by either party.  It was therefore not the duty of the 2^nd defendant to prove who the owner   of the accident motor vehicle was, whether by registration or by possession or beneficial use.  It was the duty of the plaintiff to prove on a balance of probabilities that the accident motor vehicle belonged to the 2^nd defendant.  The evidence adduced by the plaintiff fell short of that. in Nancy Ayiemba Ngaira V Abdi Ali CA 107/2008 [2010] e KLR , the court observed that:

“ There is  no doubt that the  registration  certificate  obtained  from  the Registrar  of motor vehicles  will  show the name  of the registered  owner of a motor vehicle.  But the indication this shown on the certificate is not final proof that the sole owner is the person whose name is shown.  Section 8 of the  Traffic Act is  fully  cognizant  of the fact  that a  different  person, or different  other persons, may be the defector  owners  of the motor vehicle and  so the Act has an opening or any evidence  in proof of such differing  ownership to be given.  And in judicial practice, concepts have arisen to describe such alternative forms of ownership; actual ownership; beneficial ownership; possessory ownership.  A person who enjoys any such  other categories  of ownership, may  for practical  purposes, be much more  relevant  than the person whose  name  appears  in the certificate of registration; and  in the instant case at the  trial level, it has been pleaded  that there was such alternative  kind of ownership.  Indeed, the evidence adduced in the form of police abstract showed on a balance of probabilities that the 1^st defendant was one of the owners of the matatu in question.”

30. In the instant case, the police abstract did not indicate that the 2nd defendant was the owner of the accident motor vehicle.  In  addition  the plaintiff vide  his amended  plaint filed  on 3^rd February 2006  did not  specify  what kind of  ownership  was attributed  to the 2^nd defendant.  He simply pleaded “motor vehicle registration No. 70CD2K belongs to the 2^nd defendant”.  It was  therefore  not clear  whether ‘ownership’ thereof  was by  registration or by alternative means   set out in the above  cited Nancy Ayiemba Ngaira  case (supra).  The police abstract also provided the insurance company and policy number for the accident motor vehicle.  There is no evidence adduced by the plaintiff to show that the 2nd defendant was the insured of the accident motor vehicle.  With a copy of records produced by the 2^nd defendant showing a different person being its owner as at the time of the material accident, it was cast upon the plaintiff to prove otherwise.  In this  case, the plaintiff settled for the 2^nd defendant  as the owner  thereof  simply because  he had  seen the vehicle  leaving the offices of the 2^nd defendant  and  being driven by the 1^st defendant.
31. In my view, that kind of wayside  evidence  was and is not sufficient  proof  of the 2^nd defendant  being  the owner  thereof.  Furthermore, not all diplomatic number plates belong to Embassies or High Commission or consulates.  Even diplomatic  staff who enjoy  diplomatic immunity  own motor  vehicles and use diplomatic number plates and albeit they  are  permitted to use those diplomatic  number  plates as staff, those vehicles  do not necessarily  belong to the Embassies.  The registered owners thereof register and insure those vehicles in their own names and it cannot be assumed that every vehicle that leaves an Embassy with a diplomatic number plate is an embassy motor vehicle.  In this  case it is  trite that  the material motor  vehicle was not registered  in the  Embassy of Chile’s name, and neither was  it proved that the Embassy of Chile was  the beneficial  or other owner thereof.  The plaintiff did not  even Endeavour to produce  evidence from the motor vehicle’s insurance  company, Lakestar Insurance  Company which evidence  would  indicate who the insured of the  accident motor  vehicle was, which  would have  discounted  the presumption  under the 1^st part   of Section 8  of the Traffic Act, noting that the  police abstract  did not name  the owner  thereof.  The Court  of Appeal in the case of  Joel Mugo Opija V EA Sea Food  Ltd CA 309/2010 [2013] e KLR held  inter alia that:

“………..we agree that the best way  to prove ownership  would be to produce  to the court  a document  from the  Registrar of motor vehicles showing who  the registered  owner is  but when the  abstract  is not challenged  and is produced  in court without  any objection, its contents cannot  be later denied”.

32. Thus, had the police abstract  produced  named the 2^nd defendant as the  owner of  the accident  motor vehicle or the copy  of records then in the absence  of any other records or evidence to the contrary this court  would take it that the person named therein would be the owner thereof. The plaintiff in this case failed to prove, on a balance of probabilities that  the 2^nd defendant owned  whether by  registration or beneficially, the accident  motor vehicle.
33. Having found that there was no  evidence  of the 2^nd defendant being  the owner of the accident  motor  vehicle, the other question therefore  would be, whether  the 2^nd defendant can be  held vicariously liable for the acts  of omissions of the 1^st defendant  who, undisputedly, was the driver of the accident motor vehicle.
34. This court notes that the 1^st defendant neither entered appearance nor filed defence to this claim by the plaintiff.  As a result, exparte interlocutory judgment in default   of appearance and defence was entered against him on 30th September 2008.
35. The plaintiff submits that  the entry of judgment  against the  1^st defendant  settles  the issues of  whether  the 1^st defendant  was the  servant, agent or driver of the 2^nd defendant  at the time of  accident, as well as the liability  of the first  and second defendants in the suit.  He relied on the case of Mohammed & Muigai Advocates V Samuel Kamau Macharia & Another & Black’s Law Dictionary.  On vicarious  liability, he relied on Kenya Bus  Services Ltd V Humphrey where the Court of Appeal  cited  Kansa V Solanki [1969] EA 318 that :

“ Where  it is proved that a car has caused  damage  by negligence, then in the absence of evidence to the contrary, a presumption  arises  that it  was driven by a person for  whose negligence the owner is  responsible ( See Bernard V Sully [1931] 47 TLK 557.  This presumption  is made  stronger or weaker by  the surrounding  circumstances  and it is not necessarily disturbed  by the  evidence that the car was  lent to  the driver  by the owner  as the  mere fact  of lending  does not  of itself dispel the possibility that it was still being driven for the joint  benefit  of the owner and  the driver.” 

36. The plaintiff also contended that  even if the 2^nd defendant  was  not the  registered  owner of the  accident  motor vehicle, given that  the 1^st  defendant was their  employee/driver and was in the  cause of his duty, the 2^nd defendant  would still be  liable for  the negligence  of the first  defendant.  He relied on Bingham and Benyman’s Motor  Claims Cases 11^th Edition  page 267 where it  was held, citing   the decision ion Mckean V Raynor Bros  Ltd Nottingham[1942] 2 ALL ER 650, 167 LT 369, 86 Sol Jo 376 that:

“ a  servant who was a general utility hand was instructed  by his employer  to take  and drive one  of the employer’s lorries  and meet a  convoy  and deliver  a message to them.  Without permission from his employer, he used his father’s private car and was involved in an accident.  He had used a private car on other occasion on the employer’s business and had never been told not to use a private care for that purpose.”

It was also held that the workman was doing an authorized act in an unauthorized but not a prohibited way, and the employer was liable.  The plaintiff  further referred the court  to Hilbey J cited in Bayley V Manchester  Sheffield  and Licdnshire  Rly Co. [1873] LR  8CP 148, 42 LJCP 78 28LT  366 Par  [6.56] that:

“ Where  a servant is acting  within  the scope  of his employment, and  in so acting does something  negligent or wrongful, the employer  is liable  even though  the done may be the very reverse  of that  which the  servant  was actually directed  to  do.”

The plaintiff also cited Limpus V London General Ominibus Company [1862] 1 H & C 526, 32 LJ EX 34, 7LT 641: that 

“The law casts upon the master a liability for act of the servant in the cause of his employment; and the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability.”

37. On the other hand, the 2^nd defendant was emphatic   that since it was not the owner of the accident motor vehicle, and as there was no proof that it was an employer of the 1^st defendant or that it authorized him to drive the accident motor vehicle which it never owned in the first place, it could not be held liable for acts of the 1^st defendant. the  2^nd defendant  relied on the case  of Joseph Khayigila V Gigi & Company Ltd  & Another  CA 119/86 cited  in Tabitha  Nduhi Kinyua  V Francis  Mutua  Mbuvi  & Another [2014] e KLR where  it was  held that :

“ In order to fix liability on the  owner of a car for negligence of  the driver, it was necessary to show either  that the driver was  the owner’s servant or that at the  material  time  the driver  was acting  on the owner’s behalf as his agent .  To  establish  the existence of the agency  relationship, it was necessary to show that the driver was using  the car  at the owner’s request, express  or  implied or on his.  Instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.”

38. The 2^nd defendant  also cited  the case of Morgan Launchbury  [1972] 2 ALL ER 606 cited in Jane Wairimu Turanta V Githae  John Vickery & 2 others [2013] e KLR  where  it was stated that to establish  agency relationship it  was necessary to show that the driver  was using the car  at the owner’s request, express  or implied  or in his instruction and was  doing so in the performance  of the task  or duty thereby delegated  to him by  the owner. The 2^nd  defendant concluded that  since the motor vehicle  in question  was neither  the property  of the 2^nd defendant  nor was it  being driven/used  either officially or unofficially  by  the Embassy of Chile  at any  time, the 2^nd defendant cannot be held  vicariously liable for the actions of the 1^st defendant.
39. I have perused the defence filed by the 2^nd defendant under protest.  There is no admission that the 1st defendant was its employee, let alone driver, servant or agent at the material time of the subject accident.  As stated earlier, the burden of proof lies squarely on that person who alleges the existence of a particular fact.  In this case, the plaintiff’s authorities relied on touching on vicarious liability  would only  be applicable  if there was  proof  that the  motor vehicle  belonged to  the 2^nd defendant  and secondly, that the 1^st  defendant  was its employee/servant/agent and drove  the motor vehicle  in question  for the benefit of the 2^nd defendant, in  the ordinary course of his duties.
40. In my view, and as was  expounded in the Morgan Vs Lauchbury case and Kenya Bus  Services  Ltd V Dina Kawira Humphrey  case (supra), it is  the existence  of master  and servant relationship  which gives rise to vicarious liability.  See Pritoo West Nile District Administration [1968] EA 428.  In Kansa V Solanki  cited by the plaintiff herein, the former Court of Appeal  for Eastern Africa  was clear that:

 “The motor vehicle must have been driven for the joint benefit of the owner and the driven for vicarious liability to attach.” Further, the  case of  Tabitha Nduhi Kinyua  V Francis Mutua Mburi & Another  is instructive  that “in order to fix liability  on the owner of the car for the negligence  of the driver, it was necessary to show either  that  the driver  was the owner’s  servant  or that at the material time  the driver was acting on  the owner’s  behalf as his agent.”  The court went  further to state, citing  Joseph Cosmas Khayigila V Gigi & Company case  (supra) that “to establish  the existence  of the agency relationship it was necessary to show that the  driver was using  the car at owner’s request, express or implied  or on his instructions and was doing  so in the  performance of the task or duty  thereby  delegated  to him by the owner.”

41. In this case, there is no proving that the accident motor vehicle was owned by the 2^nd defendant.  Further, there is no evidence that the 1^st defendant was an employee or servant or agent of the 2^nd defendant.  There was also no evidence that the vehicle as driven on that day was on authority of or for the benefit of the second defendant. That  being the  case,  it cannot hold  to state that  the 1^st defendant  was using  the motor vehicle at the material  time for the benefit  of the 2^nd defendant  or at  the 2^nd defendant’s request, express or implied.
42. I therefore  find that  the plaintiff has completely failed to establish  the master/servant or principal/agent relationship between the two defendants  to warrant  a determination that the 2^nd defendant  is  vicariously liable for acts of  the 1^st defendant. In other words, the evidence   on record does not support that the 1st defendant was the driver, agent or servant of the 2nd defendant.
43. Further, neither  does that  evidence  support that the motor vehicle subject of the  accident  was in any way owned  or was being used for the  benefit  or official business   of the 2^nd defendant or that the 1^st defendant  was under  instructions or employment  of  the 2^nd defendant  at the material time. In that regard, therefore, the interlocutory judgment entered against the 1^st defendant cannot therefore pass liability on the 2nd defendant.
44. The above exposition therefore settles issues No. 1 2, 3 and 6.
45. On who was to blame for the accident, the plaintiff testified that he was on the material day of 10^th February 1999 lawfully crossing Ngong Road Nairobi when he was violently hit by a car registration number 70CD2K thereby sustaining serious injuries.  He was going to Lenana School.  He was then taken to Masaba Hospital.  He got details of the accident from the police.
46. In the pleadings/plaint, the plaintiff  pleaded that he attributed  the occurrence  of the accident  to the negligence  of the 1^st defendant in the manner  in which he drove, managed  and or  controlled the accident  motor vehicle.  He also outlined  what he  considered to be particulars  of negligence on the part of  the 1^st  defendant, namely:

1. Driving at an excessive speed in the circumstances.
2. Failing to exercise and or maintain any effective control over the said motor vehicle.
3. Failing to have any sufficient regard for pedestrians expected on the said road and particularly the plaintiff.
4. Failing to stop, to apply brakes in time or at all, to swerve or any other way so as to avoid the accident.

47. A part  from the above pleadings  which set out the particulars  of negligence  on the part of the 1^st defendant, there is no other evidence  on record to show how  the material accident occurred  apart from the statement that  the plaintiff was  lawfully crossing Ngong Road / Nairobi when the  1^st defendant violently hit him while  driving motor vehicle  70CD 2K thereby sustaining  serious injuries.
48. The plaintiff did not even rely on the doctrine of res ipsa loquitor
49. Albeit  interlocutory judgment  in default of appearance  and defence was entered  against  the 1^st defendant, and  therefore  the case proceeded by way  of formal  proof against  him, the  burden of proving that the  1^st  defendant  was liable in negligence  for the occurrence  of the accident  still lay on the plaintiff.  Pleadings are not  evidence  and it is not  enough to plead  particulars of  negligence  and make no attempt  in one’s testimony in court to demonstrate  by way of evidence  how the  accident  occurred and how  the  1^st defendant  was to blame   for the said accident.  It is  trite law that he who alleges  must prove and that burden  does not  shift to the  adverse  party even  if the case  proceeds  by way of formal proof  and or undefended. This was not a fatal accident witnessed by no one, where the court would be entitled to infer negligence on the part of the 1^st defendant especially where interlocutory judgment was entered against him. And nothing prevented the plaintiff from testifying on how he came to be knocked by the accident motor vehicle.
50. The plaintiff being the affected party was under a duty to place before the court evidence to sustain those averments in his plaint.  Since the pleadings and written submissions are not evidences, unless liability was agreed upon by consent which is not the case here. In Daniel Toroitich Arap Moi &another v Mwangi Stephen Murithi and another [204] KLR the Court of Appeal held that:

“Submissions cannot take the place of evidence.  The 1^st respondent had failed to prove his claim by evidence.  What appeared in submissions could not come to his aid.  Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one.  Submissions, we reiterate, do not constitute evidence at all.  Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

Black’s  Law Dictionary 8^th  Edition defines  a pleading as:

“A formal document in which a party to a legal proceeding especially a civil law suit sets  forth or responds  to allegations, claims denials or defenses.”

51. It therefore follows, and I reiterate, that a pleading is not evidence.  Further, Section  3 of the Evidence Act  Cap 80 Laws of Kenya  defines  evidence as:

“ Evidence denotes the means by which an alleged matter  of fact  the truth of which is submitted to  investigation  is proved or  disproved; and without  prejudice to the foregoing  generally includes statements by accused  persons, admission and  observation by the court  in its  judicial  capacity.”

52. I am further fortified  by the Court of Appeal’s decision  in the case of Douglas  Odhiambo Appeal & Another  V Telkom Kenya Ltd CA 115/2006 Nambuye, Ouko & Kiage JJA. In addition, there was no evidence that the 1st defendant was even faulted by the police for the occurrence of the accident.  The police abstract produced does not show that anyone was charged with a traffic offence.  The abstract showed that the matter was pending under investigations.
53. Thus even where there is no  rebuttal, in a matter  that requires  proof, Section 107 of the Evidence applies,  that whoever  desires  the court to give  judgment  as to any legal right  or liability dependent  on the  existence  of  facts  which he  asserts  must prove  that those facts exist.
54. It was therefore, in my view, not  sufficient  for the plaintiff to merely assert  that since the 1^st defendant  did not  file  any defence  or controvert  the pleadings  or rebut  the statement  that the plaintiff  was lawfully crossing  Ngong Road  when the  1^st defendant  violently knocked him, then he needed  not prove  how the accident happened  and hence the liability  of the 1^st defendant.Madan JA in CMC Aviation  Ltd V Cruis Air  Ltd (1) [1978] KLR  103  observed:

“ Pleadings  contain the  averments of the three  concerned until  they are  proved  or disproved, or  there is  admission of them or any of  them by the parties  they are not  evidence  and no  decision  could be founded upon  them.  Proof is the foundation if evidence.”

55. Averments are matters the truth of which is submitted for investigation until their truth has been established or otherwise they remain unproven.  Averments in a plaint in no way satisfy for example, the definition of Evidence under Section 3 of the Evidence Act. Since those  averments  as to the  particulars of negligence  against the  1^st defendant  were not  admitted, which admission  would have  become evidence  and as evidence is  normally given on oath  or by  affirmation, averments depend on  evidence for proof  of their contents( see Cassells English Dictionary page  394).
56. In view of the above, the plaintiff ought to have testified on how the accident occurred and proved each or any of the acts of negligence attributed to the 1^st defendant.  He failed to do so.  Consequently, there is no material before this court upon which liability on the part of the 1^st defendant can be founded. Furthermore, the plaintiff did not rely on the doctrine of resipsa loquitor.
57. On the issue of whether the suit  against the  2^nd defendant  is sustainable  in law and  or whether  the plaintiff  has a cause of action against  the 2^nd defendant, first  and  foremost, I have found that the  2^nd defendant  was not on the evidence adduced, proved to  be the legal or beneficial other owner  of the accident  motor vehicle and neither was it proved to have been the 1^st defendant’s employer for vicarious liability if any to attach.  The second aspect  to the above twin issue is  that, according to the 2^nd  defendant, no suit  lay against  the 2^nd defendant because it enjoys  diplomatic immunity under the Privileges and Immunity  Act Cap 179 Laws of Kenya and the Vienna Convention on Diplomatic Relations of 1961, which latter Convention  is applicable in Kenya  as part of the Laws of Kenya under  the 2010 Constitution by virtue of Article 2(6) of the Constitution that “ Any Treaty or Convention ratified  by Kenya shall form part of the Law of Kenya under  this Constitution.”
58. The 2^nd defendant also relied on Article 2(5) of the Constitution that the general rules of International Law shall form part of the Law of Kenya.  It was submitted  on its behalf  that Articles 31,32 and 37  of the Vienna Convention prohibits  the receiving  state from instituting  any civil or criminal  proceedings  against  a diplomatic  agent  unless the immunity was waived expressly. The plaintiff countered those  submissions  by contending  that Article 43  of the Convention excludes  the 2^nd defendant  from immunity  in respect  of damages  to the plaintiff  arising  from the motor  vehicle caused  by its employees  in the cause of duty.  The plaintiff also submitted that  under Section 16  of Cap 179, only a certificate by the Minister  is conclusive  evidence as to whether  a party is entitled   to immunity or privilege  under the Act  and that in the absence  of the certificate  the 2^nd defendant  has not  shown requisite  evidence to be entitled to the benefit.  Further, that under Article  43(3) (b), there is no immunity where  the claim is by a third  party  for damages  arising from an accident  in the receiving  state  caused  by a vehicle, vessel  or  aircraft. He relied on several decisions and distinguished those decisions relied on by the 2^nd defendant.
59. My determination  on the above issue  of diplomatic  immunity is that state immunity  is a rule of customary International Law under which municipal  courts are  prevented  from exercising  their jurisdiction in disputes where a  foreign state is named as a  defendant  or where a foreign state  intervenes by means  of interpleader proceedings ( see Public  International  Law, 4^th Edition by Alina Kaczorowska. the above authors’ justification for state immunity are:

1. The principle of Sovereign Equality states;
2. The practical impossibility of enforcing  judgments against foreign  states; in particular  in a situation  where the foreign  states’ assets are  located  outside  the jurisdiction of the  forum state; and;
3. The principle which is now obsolete though technically not in the UK, that as a sovereign could not himself be sued before his own municipal courts, so the sovereign of another   state was similarly exempt from the jurisdiction of the local law.

60. The authors set out three aspects of the evolution of the doctrine of state immunity over time namely;-I. initially, a state  enjoyed  virtually absolute  immunity from proceedings  in Municipal Courts; ii. Subsequently, the immunity was recognized  with regard  to sovereign  or public  acts(Jure Imperil)  of  a state  but not  with respect  to private  acts (jure gestionis).
61. The writer also identified  the following challenges  to the doctrine  of state  immunity:-

1. It is  incompatible  with the  development  of criminal law  as it shields  Heads of State  and other high ranking officials  from being accountable  for grave human rights  abuses  before otherwise  competent courts;
2. The recognition by the International Community  that some  rules of International Law are of  jus cogens  character  ie they are  superior  to any other  rules, including  the rules on state  immunity entails that the prohibitory  of crimes  having  the character of jus cogens such as  genocide, crimes  against  humanity , war  crimes , tort  we should prevail over the rules  on state immunity which  do not enjoy the status of jus cogens.
3. It clashes with basic human rights as the right of access to a court, the right to a remedy and or the right to effective protection.

62. In Kenya, state immunity is covered  by the application of Article 2(5) and 2 (6)  of the Constitution which import the application of  the Vienna Convention  on Diplomatic  Relations, 1961 as well as the  Vienna  Convention on Consular Relations which have been domesticated  before 2010 vide the  Privileges and  Immunities  Act and  the 1^st  and 2^nd  Schedules to the Act.  Article 31(1) of the Vienna Convection on Diplomatic Relations   grants immunity to any diplomatic agent and diplomatic mission from the criminal jurisdiction of the receiving state.  Such  an agent  shall also  enjoy immunity from civil jail and administrative  jurisdiction except  in the following  cases:

1. A real action relating  to private immovable property situated  in the territory  of the receiving  state, unless he holds  it on behalf of the sending state for the  purpose of  the mission;
2. An action relating  to succession in which the diplomatic  agent  is involved  as executor, administrator, heir   or legatee as a private  person  and not on behalf  of the sending state;
3. An action relating to any professional or commercial activity exercised by the diplomatic agent   in the receiving state outside his official functions.

2. Consular  officers  and employees  shall not be amenable to the  jurisdiction  of the judicial  or administrative  authorities  of the receiving  state in respect  of acts  performed  in the exercise  of consular functions.

3.   The provisions of paragraph 1 of  this Article  shall not, however, apply in respect of civil action either (a) arising  out of  a contract  concluded by a consular  employee in which he  did not  contract  expressly  or impliedly  as an agent  of sending  state or

(b) By a third party for damage arising from an accident in the receiving state caused by a vehicle, vessel or aircraft.

63. In Skeen V Federative Republic of  Brazil 566 F Supp 1414 [1983], it was held that  Brazil  could not be held liable for injuries  caused by the grandson  of the  Brazilian  Ambassador to the USA  who was entitled  to immunity as  a member of  the diplomat’s  family arising  out of a shooting  outside a night club  in Washington DC.  Kaczorowska in her book (supra) also states that:

“ Arguments based on violations of rights other than relating to court  e.g. the right  to effective  remedy, the right  to effective protection  and the right  to non- discrimination  have all failed  to  challenge  the rule on state  immunity.  Further, even if Municipal Courts , including  Supreme Court  of a state, refuse  to grant immunity to a  foreign state, the victims  of International crimes  are unlikely  to be  compensated  because  a foreign  state enjoys  almost absolute immunity  from enforcement.”

64. From the above  analysis, I am  persuaded  that even in cases  of enforcement  of human rights, state immunity  in our realm must be given  its due  place and must prevail  over all claims save  where a  restriction to it is proved  e.g. in commercial transactions.
65. It is worth noting that the 2^nd defendant  herein is not a  diplomatic agent, official, employee, members of the mission, members of staff of the mission, members of the  diplomatic  staff  members of  the administrative  and technical staff; members of the service staff or a private  servant as defined  in Article 1 of the Privileges and Immunities Act Cap 179.

63. The 2^nd defendant was sued in its own capacity as the Embassy of Chile. Would therefore  Article 43  of the Convention which  refers to consular  officers  and consular employees  be relevant   as far as  the inviolability  of the Embassy of Chile is concerned ? I think not.
64. This court adopts the decision of the Court of Appeal in the case  of Ministry of Defence of the Government  of the United Kingdom V Ndegwa [1982] CA 31/82 wherein Lord  Denning  was categorical that:

“ The general principle is undoubtedly  that, except by consent, the courts of this country  will not  issue  process  so as to  entertain  a claim against  a foreign  sovereign  they could be  called upon to enforce  it by  execution  against  its property here.  Such execution might imperil our relations with that country and lead to repercussions impossible to foresee.”

65. I further do not agree that Section 16 of the Privileges and Immunities Act with reference to a person in proceedings entitled to immunity relates to the Embassy /Mission or consular post.
66. The Embassy of Chile in my humble view is different from the agents, employees or officers. It enjoys inviolability as a sovereign state with   all privileges and Immunities   to which its status as a sovereign state entitles it.  There is no evidence that the Government of Chile consented to the jurisdiction of the Kenyan Courts with regard to the matters raised in the plaint.  There would therefore, be no cause of action disclosed against the2nd defendant.
67. I hold that the principle  that no  state  can claim jurisdiction  over another  state so that as a rule states  cannot be sued  in a foreign  courts unless  it voluntarily  submits to the jurisdiction of municipal courts  of the receiving state.  (Par in parem non Haber jurisdiction). That principle  was espoused  in the  case of Twictor Investments Ltd Vs The  Government  of the United  States of America [2003] e KLR Petition No. 393 of 2014.  Talaso Lepalat V Embassy of the Federal Republic of Germany & Others; and Karen Njeri Kandie V Alssane Ba & Shelter Afrigue.  Given the expositions  and findings made above, I conclude  that  the immunity that attaches  to  the 2^nd defendant  Embassy of  Chile finds  recognition and legitimacy  from International  treaties  ratified  by Kenya  including  the Vienna Convention which is  expressly validated by  Article  2(6) and  (5)  of the Constitution  thereby completely immunizing the Embassy from  criminal or civil proceedings  before Kenyan Courts no matter how desirable or expedient  such proceedings may seem. Thus in the absence of an express waiver of the diplomatic immunity, this court is bound by the rules of International Law that our own Constitution has imported.  It  cannot ignore  such important rules of International Law regarding  state/diplomatic  immunity  as that would  jeopardize  this country’s  relations with  the Government of Chile and lead to repercussions  impossible to foresee.  I therefore  find that  the plaintiff’s claim  discloses  no cause of action against  the 2^nd defendant, even assuming that it was the owner of the accident motor vehicle or it was the 1^st defendant’s employer  and I would accordingly proceed to strike out that claim.
68. On quantum, the law requires  that even if the plaintiff who  has sued for damages  does not  prove liability   this court  not being  the final  court must  assess  what it would  have awarded  him, had he  proved his case  on a balance of  probabilities. The plaintiff pleaded that  as a  result of the material accident, he  sustained multiple  injuries  on the head, dislocated  right shoulder joint, injuries  to the  lower back and trunk; injuries  to the right  iliac crest region and loss of consciousness for  4 days.  His statement  which was adopted as his evidence  in chief  also enumerated the same injuries  which were  confirmed by the medical  treatment  notes, case summary from Masaba Hospital and Dr. Stanley M. Kimuhu’s medical report  dated 5^th  July 2012.
69. At the time   of examination, the plaintiff complained of weakness of the right arm and periodical headache and backache.  He had been left with scars on the injured sites of cuts and bruises.  He also had a shift right shoulder joint with severe limitation of movement.  The scars are said to be permanent and disfiguring.  He is likely to suffer from osteoarthritis in the right shoulder joint.  He will require   periodical medical attention, such as drugs and physiotherapy.  He was left with a permanent incapacity of 40%.
70. The plaintiff’s counsel prayed for shs 800,000/- general damages for pain, suffering   and loss of amenities.  He relied on the case of Philip Kipkorir Cheruiyot V Nebco K. Ltd & Another [2006] e KLR where Kimaru J awarded the plaintiff shs 600,000 for general damages for fracture of the right hand and dislocation of the shoulder. 
71. The 2^nd defendant made no submission on quantum.
72. I have considered the plaintiff’s evidence and proposals on quantum of damages in line with that decision in Philip Kipkorir Cheruiyot.  Albeit the  injuries   sustained by the plaintiff were much more serious, involving fractures  and dislocation of femur and right shoulder and wasting  of all muscle to his arm, nonetheless, they were more the less similar to the ones sustained  by the  plaintiff herein.  The doctor in that case found the plaintiff to have suffered 30% permanent incapacity.  Accordingly, I accept  that decision  as being relevant, taking into account  inflation and  the ever weakening trend of the Kenyan shilling and considering  that damages are not  intended to enrich an injured  party but to put him in as  nearly as possible the position  he was in before the injury  I would award  the plaintiff  kshs 800,000 proposed by his advocate Mr Adipo.
73. On special   damages, the law is clear that   not only must they be pleaded, but that they must be specifically proved.  The plaintiff  pleaded a sum of kshs  37,600 being special damages  made  out as follows:

1. Medical report -1,500
2. Medical expenses  36,000
3. Police abstract  -100
4. Physiotherapy per session  at 600
5. Transport at 500 per trip for physiotherapy.

74. In his evidence /statement  on oath, the plaintiff asked for:

1. Medical report  from Fair Care  Medical Services  -shs 1500
2. Physiotherapy costs shs  55,800
3. Medical report  from Dr. Stanley M.Kimuhu  -shs  3,000

Total    shs 60.300/-

75. I have seen the receipts produced in evidence.  The plaintiff has proved shs 1500/- for medical report from Fair Care Medical Services, which was   also pleaded.  I would allow it.  The kshs 3000/- for medical report from Dr. Stanley M. Kimuhu was proved but not pleaded.  I would disallow it.  There is no receipt for police abstract as pleaded so I would disallow it. On the claim for physiotherapy and or medical expenses, kshs 36,000 was pleaded as medical expenses but physiotherapy charged were set at sh 600 per day.  The receipts produced for physiotherapy amount to kshs 55,800.  There is no other receipt for medical expenses produces. Since physiotherapy cost was pleaded separately and there is an attendance sheet showing   all the days he attended plus the charges, I would award him kshs 55,800 for physiotherapy.  There is no evidence of any other medical expenses as pleaded so I would reject that claim as unproved. In the end, I would award the plaintiff special damages in the sum of kshs 57,300/-.
76. The plaintiff also pleaded  damages for loss of earnings but  he did not  tell the court  what he  was doing  for a living at  the material  time of  accident  and the alleged loss.  He did not prove that claim.  I would disallow it.
77.  I would allow interest on the general damages from date of judgment   while interest on specials would accrue from date of filing suit.
78. However, as the plaintiff did not prove his claim against any of the defendants, I dismiss his case for the reasons that I have given above.  I order that each party bears their own costs of this suit.

Dated, signed and delivered in open court at Nairobi this 15^th day of October, 2015.

R.E. ABURILI

JUDGE