Richard v Njeru (Civil Appeal 181 of 2021) [2022] KEHC 17083 (KLR) (14 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 17083 (KLR)
Republic of Kenya
Civil Appeal 181 of 2021
MN Mwangi, J
October 14, 2022
Between
Fox Henry Richard
Appellant
and
Alban Mwaniki Njeru
Respondent
(Being an Appeal from the judgment of the Chief Magistrate Hon. Francis F. Kyambia delivered on 1st October, 2021 in Mombasa Chief Magistrate’s Court Civil Cause No. 2511 of 2018)
Judgment
1.The suit against the defendant (appellant) in the lower Court was that, on or about December 22, 2015 at about 10.30 a.m, one Henry Mwaniki Njagi in the course of his employment with the respondent, was driving a Toyota Hilux registration No KCF 119C along the Mombasa-Nairobi Road when the appellant so negligently drove, managed and/or controlled his Toyota Prado registration No KBJ 141Q, that he ran into and collided with Toyota Hilux registration No KCF 119C owned by the plaintiff (respondent). The respondent averred that he would rely on the doctrine of res ipsa loquitor. He further stated that as a result of the said accident, the said Toyota Hilux registration No KCF 119C was extensively damaged thus the respondent suffered loss and damage.
2.The appellant filed a statement of defence dated August 19, 2019 where he denied the averments contained in the plaint. He averred that the doctrine of res ipsa loquitor does not apply to this case. The appellant further averred that if there was an accident, the same was solely caused and/or substantially contributed to, by the negligence of the driver of motor vehicle registration No KCF 119C in driving, managing and controlling the said motor vehicle owned by the respondent.
3.In the lower Court, judgment was delivered on October 1, 2021, where the Court found the appellant wholly to blame for the occurrence of the said accident, and awarded the respondent Kshs 2,550,700/= special damages as prayed in the plaint, plus costs and interest from the date of filing of the suit. The appellant was dissatisfied by the decision of the Trial Magistrate and on October 15, 2021, he filed a Memorandum of Appeal raising the following grounds of appeal-i.That the learned Chief Magistrate erred in not holding that the plaintiff’s insurer lacked the locus standi to institute the subrogation claim on behalf of the plaintiff;ii.That the learned Chief Magistrate erred in failing to hold that in the absence of proof of a policy of insurance, the plaintiff’s insurers’ subrogation rights cannot accrue;iii.That the learned Chief Magistrate erred in failing to hold that in the absence of a consent from the plaintiff to institute the suit the subrogation claim cannot stand and ought to fail for want of authority;iv.That the learned Chief Magistrate erred in holding that the defendant was wholly to blame for the accident which occurred on December 22, 2015 contrary to the evidence before him and when the plaintiff did not testify before him;v.That the learned Chief Magistrate erred in holding the defendant wholly liable when there was no credible evidence before him to show why and how the defendant’s driver was culpable;vi.That the learned Chief Magistrate erred in failing to hold that it was incumbent upon the plaintiff to call the Investigating Officer from the Traffic Police who went to the scene of the accident immediately after the accident and investigated the accident in order for him to determine the aspect of liability between the drivers of motor vehicles registration Nos. KCF 119C owned by the plaintiff and KBJ 141Q owned by the defendant;vii.That the learned Chief Magistrate erred in relying on the evidence of PW4 despite her evidence that she was not the Investigating Officer and that she had never visited the scene of the accident and that she did not have the police file pertaining to the accident on December 22, 2015;viii.That the learned Chief Magistrate erred in not holding that there was no evidential value of PW4 Sergeant Joyce Iha (sic) and consequently ought to have disregarded her evidence in its entirety;ix.That the learned Chief Magistrate erred in holding the driver of the defendant’s motor vehicle registration number KBJ 141Q wholly (sic) to blame for the accident despite the fact that no sketch plan or police file was produced as an exhibit before him;x.That the learned Chief Magistrate erred in admitting hearsay evidence given by the plaintiff’s witnesses whilst determining the aspect of liability as well as quantum;xi.That the learned Chief Magistrate erred in not holding that no evidence was led by the plaintiff’s witnesses in respect of the particulars of negligence pleaded in paragraph 2 of the plaint dated December 4, 2018 when it was incumbent upon them so to do;xii.That the learned Chief Magistrate erred in not dismissing the plaintiff’s suit when no credible evidence was adduced before him in respect of the particulars of negligence alleged against the driver of the defendant’s motor vehicle registration number KBJ 141Q in the plaint;xiii.That the learned Chief Magistrate erred in awarding to the plaintiff the sum of Kshs 2,500,000/= in respect of the pre-accident value of the plaintiff’s motor vehicle registration number KBJ 141Q when the particulars of material damage to the plaintiff’s vehicle were not properly pleaded;xiv.The learned Chief Magistrate erred in failing-a.To appreciate the significance of the various facts that emerged in the evidence of the plaintiff’s witnesses;b.To consider or properly consider all the evidence before him and/or; andc.To make any or any proper findings on the evidence before him; andxv.That the learned Chief Magistrate erred in failing to consider or properly consider the written submissions filed by Counsel for the defendant/appellant.
4.The appellant’s prayer is for the appeal to be allowed, and for the learned Chief Magistrate’s judgment delivered on October 1, 2021 to be set aside or varied as this Court appears proper (sic) and an appropriate order for costs be made in respect of this appeal and in respect of the proceedings in the Court below.
5.The appeal was canvassed by way of written submissions. The law firm of CB Gor & Gor Advocates filed their written submissions on April 27, 2022, on behalf of the appellant. The respondent’s submissions on the other hand were filed on May 24, 2022 by the law firm of Kishore Nanji Advocate.
6.The learned Counsel for the appellant submitted that the claim before the Trial Court was not one by a claimant against a tortfeasor for a material damage claim but by an insurance company for reimbursement of money it allegedly spent to compensate its insured. He relied on the case of Securicor Guards (K) Limited v Mohamed Saleem Malik & another [2019] eKLR and submitted that a subrogation claim must be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance. It was contended that inasmuch as the suit herein was instituted in the name of the insured, the same was not done with his consent since PW1 told the Court that he had not filed any express authorization by the plaintiff in order to bring the instant suit on his behalf. In addition, Counsel stated that the respondent was never called to testify as to whether he gave consent for the suit herein to be brought on his behalf by his insurer
7.It was submitted by Counsel that before an insurer is entitled to seek indemnity from a third party, it has to have compensated its insured for financial loss occasioned by the said third party however, in this case, the respondent was not called to corroborate the assertions that he was compensated for the loss or that he was given a new car from Toyota Kenya as alleged by PW1, neither was a representative of Toyota Kenya called to attest to this fact. In addition, the appellant’s Counsel submitted that there was no evidence placed before the Trial Court to prove that the respondent had been compensated for the loss suffered for the insurer’s subrogation rights to accrue.
8.He cited the case of Dollk Limited v Invesco Assurance Company Limited & 5 others [2018] eKLR wherein the case of Egypt Air Corporation v Suffish International Food Processors (U) Ltd and another [1999] 1 EA 69 was cited; and submitted that subrogation springs not from payment only but from actual payment paired with the fact that it is made pursuant to the basic and original contract of indemnity. He also relied on the provisions of Section 3(4) of the Evidence Act and stated there was no evidence that compensation had been done or had not been done, thus what is neither proved nor disproved is deemed as not proved.
9.It was submitted by the appellant’s Counsel that in the absence of proof of a policy of insurance, the respondent’s insurers’ subrogation rights cannot accrue. It was stated that in this appeal, the respondent failed to produce the policy of insurance or the certificate of insurance in evidence hence an inference can be drawn that the policy of insurance sticker was not produced because if it had been produced, it would have negated the respondent’s case. To this end, Counsel relied on the case of Timsales Limited v Harun Thuo Ndungu [2010] eKLR.
10.It was also submitted for the appellant that there was little or no evidentiary value in the evidence of PW4 since he only produced a police abstract and that the respondent did not provide any photographs, call eye witnesses or file an investigation report to explain the circumstances of the accident so as to establish the omission or negligent act of the appellant or his driver, thus the appellant failed to discharge his burden of proof. The appellant’s Counsel relied on the case of Hussein Omar Farah v Lento Agencies [2006] eKLR and submitted that both the appellant and the respondent should have been found to be equally liable for the occurrence of the said accident.
11.Ms Nasimiyu, learned Counsel for the respondent submitted that the principle of subrogation was pleaded in the respondent’s plaint and was never denied by the appellant in his statement of defence. She relied on the case of Gahir Engineering Works Limited v Rapid Kate Services Limited & another [2018] eKLR and submitted that the only qualification to the general principle of compensation of the insured by the insurer is that the indemnity must be sought in the name of the insured. In citing McGillivray & Parkington on Insurance Law relating to all risks other than Marine eighth edition, Ms Nasimiyu stated that rights of subrogation vest by operation of the law rather than a product of express agreement.
12.She submitted that plaintiff exhibit No 6, ICEA’s Accident Total Loss Discharge Voucher and subrogation letter dated January 21, 2016 prove that the respondent was duly compensated in respect of the loss, thus he expressly authorized and/or gave his consent to the institution of the subrogation claim. She further submitted that the respondent appended his signature to the said subrogation letter and no issue was raised by the appellant as to the authenticity of the said letter and signature. In addition, she stated that had the respondent not given his consent to the institution of the claim herein, he would not have deposed to the contents of the verifying affidavit confirming the correctness of the averments in the plaint, which included an averment that the course of action relates to the respondent and is brought by the respondent’s insurer under the right of subrogation.
13.Ms Nasimiyu submitted that indeed the respondent was compensated for the loss since by his own letter dated January 21, 2016 he requested that the payment be made directly to Toyota Kenya Limited and that the payment voucher indicating payment to Toyota Kenya Limited was as good as a cheque. Ms Nasimiyu cited the case of Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority [2009] eKLR, where the Court held that if an invoice is specifically endorsed, the invoice plus the endorsement on it are treated as receipt for payment. She indicated that the payment voucher to Toyota Kenya was endorsed with the words ‘Paid EFT/RTGS’. In addition, she contended that all the said documents were produced and were not challenged by the appellant. She referred to the case of Chania Transport Company Limited & another v A to Z Transporters Limited [2020] eKLR, where the Court held that a discharge voucher and the corresponding cheque for the same amount proved that the insurer did indemnify its insured for the loss suffered.
14.In citing the case of Gahir Engineering Works Limited v Rapid Kate Services Limited & another (supra), Ms Nasimiyu submitted that the existence of an insurance contract need not to be proved by way of a policy of insurance and/or certificate of insurance. She also relied on the case of APA Insurance Company Limited v George Masele [2014] eKLR, where it was held that the details on a police abstract proved on a balance of probabilities that a motor vehicle was insured by the respective Insurance Company. She submitted that the testimony of PW1 coupled with the police abstract dated December 22, 2015 and plaintiff exhibit 6 which showed that the respondent was duly compensated was sufficient evidence on a balance of probabilities that the respondent’s motor vehicle was indeed insured by ICEA. She submitted that requiring production of the policy of insurance and/or certificate of insurance sticker would be placing a higher burden of proof than that required in the circumstances.
15.Ms Nasimiyu contended that the Trial Magistrate properly analyzed the evidence on record and found that the appellant’s driver was to blame for the occurrence of the accident herein, and the respondent’s driver could not be blamed since he was driving on his lane. She stated that PW 4 produced the police abstract, relied on the contents of the OB, where the Investigating Officer recorded that the appellant’s motor vehicle was to blame for the accident. She relied on the case of Techard Steam & Power Limited v Mutio Muli & Mutua Ngao [2019] eKLR, where the Court held that proof of negligence being on a balance of probabilities does not solely depend on the evidence of the Investigation Officer, as negligence can be proved notwithstanding the fact that the accident in question was never reported to the police.
16.Ms Nasimiyu referred to the case of Nandwa v Kenya Nazi Limited [1988] eKLR and submitted that the evidence tendered by the respondent’s witnesses called for a rebuttal from the appellant who failed to call his driver to give his version of events. She also relied on the case of William Ndinya Omollo v Come Con Africa Limited [2004] eKLR, where the Court held that the submission of the defence Counsel when trying to fault the evidence of PW1 did not hold as in doing so, he was trying to give evidence for his client from the bar.
17.Ms Nasimiyu stated that the respondent properly pleaded at paragraph 5 of the plaint that his motor vehicle was extensively damaged and the particulars given thereof were that the pre-accident value of the motor vehicle was Kshs 2,950,000/= less salvage value at Kshs 450,000/=, which particulars were proved through the assessment report dated December 29, 2015 and there was no dispute to the said assessment.
Analysis And Determination.
18.This Court being the 1st appellate Court has a duty to analyze and re-evaluate the evidence adduced before the lower Court and reach its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact. See Williamsons Diamonds Ltd vs Brown (1970) EA 1 and Ramji Ratna and Company Limited vs Wood Products (Kenya) Limited, Civil Appeal No 117 of 2001.
19.An appellate Court will not interfere with the finding of fact by a Trial Court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles of law in reaching his conclusion. See Nkube v Nyamuro [1983] LLR, 403-415, AT 403). I have re-examined and analyzed the entire Record of Appeal and given due consideration to the written submissions by the parties’ respective Counsel. I am of the considered view that the issues that are arise for determination are-i.Whether the respondent’s insurer had the requisite locus standi to institute the subrogation claim;ii.Whether the appellant was 100% liable for the road traffic accident that occurred on December 22, 2015; andiii.Whether the claim for special damages was specifically pleaded and proved.Whether the respondent’s insurer had the requisite locus standi to institute the subrogation claim.
20.The appellant submitted that a subrogation claim must be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance. It was contended that in this case the suit was instituted in the name of the insured, but the same was not done with his consent. He further submitted that before an insurer is entitled to seek indemnity from a third party, it must have compensated its insured for financial loss occasioned by the said third party however, in this case, there was no evidence placed before the Trial Court to prove that the respondent had been compensated. The appellant also stated that the respondent did not produce the policy document and/or certificate of insurance sticker which are crucial for the respondent’s insurers’ subrogation rights to accrue.
21.The respondent on the other hand submitted that the only qualification to the general principle of compensation of the insured by the insurer is that the indemnity must be sought in the name of the insured as was the case herein. He further submitted that that plaintiff exhibit No 6, ICEA’s Accident Total Loss Discharge Voucher and subrogation letter dated January 21, 2016 prove that the respondent was duly compensated in respect of the loss.
22.The respondent’s Counsel contended that had the respondent not given his consent to the institution of the claim herein, he would not have deposed to the contents of the verifying affidavit confirming the correctness of the averments in the plaint which included an averment that the course of action relates to the respondent and is brought by the respondent’s insurer under the right of subrogation. In addition, she stated that the testimony of PW1 coupled with the police abstract dated December 22, 2015 and plaintiff exhibit 6 which showed that the respondent was duly compensated were sufficient evidence on a balance of probabilities, to establish that the respondent’s motor vehicle was indeed insured by ICEA.
23.The principle of subrogation applies where there is a contract of insurance. It takes effect when the insurer settles the insured’s claim, whereby it sets out to diminish the loss suffered by its insured by seeking compensation from the party who caused the loss. The insurer is put in the position of the insured and is entitled to claim compensation from the 3rd party tortfeasor and, the compensation is not more than what has been paid to the insured. The doctrine of subrogation was defined by the Court in the case of Egypt Air Corporation v Suffish International Food Processors (U) Ltd and Another [1999] 1 EA 69 as hereunder-
24.It is evident from paragraph 9 of the plaint dated December 4, 2018 filed in the lower Court, that the respondent averred that the cause of action relates to him and it had been brought by his insurers under the right of subrogation. In light of the foregoing, I concur with the findings by the Court in the case of Opiss vs Lion of Kenya Insurance Company Civil Appeal No 185 of 1991 where it was held that-
25.It is not disputed that the respondent was the owner of motor vehicle registration No KCF 119C Toyota Hilux. The respondent’s case was that the said vehicle was insured by ICEA Lion General Insurance Limited. The respondent produced a police abstract from Macknon Police Station dated December 22, 2015 as plaintiff exhibit No 1 which shows that the respondent’s motor vehicle registration number KCF 119C was insured by ICEA Lion General Insurance Limited under Policy number 087-HO-132204-15. He also produced a Motor Accident Report Form dated December 22, 2015 as plaintiff exhibit No 2 which shows that his motor vehicle was insured by ICEA Lion General Insurance Limited.
26.During the hearing of the respondent’s case before the Trial Court, PW1, who works with ICEA Lion General Insurance Limited testified in examination-in-chief that they had insured the driver who drove motor vehicle registration No KCF 119C. PW3 who was a Motor Vehicle Assessor testified that they had been referred by ICEA Lion General Insurance Limited to assess motor vehicle registration number KCF 119C which had been involved in an accident on December 22, 2015.
27.The appellant contended that in the absence of a policy document and/or certificate of insurance sticker, the respondent has not discharged his burden of proving that he was insured by ICEA Lion General Insurance Limited. I am persuaded by the finding in APA Insurance Co Ltd vs George Masele [2014] eKLR by Judge Mabeya and hold that from the evidence on record, more specifically the police abstract produced herein, it was sufficiently proved by the respondent on a balance of probabilities that there was a valid insurance policy in place issued by ICEA Lion General Insurance Limited. That being the case, the burden of proof shifted to the respondent to prove otherwise. I agree with Counsel for the respondent that requiring production of an insurance policy document to prove existence of an insurance contract would be raising the standard of proof to that of beyond reasonable doubt.
28.In light of the foregoing, it is evident that the suit in the lower Court was filed in the name of the insured and he gave his consent thereto. This is evident from the fact that he deposed to the contents of the verifying affidavit confirming the correctness of the averments in the plaint which included the averment contained in paragraph 9 threof.
29.On whether the insurance made payment to the respondent. I am guided by the finding in Indemnity Insurance Co. of North America and Another vs Kenya Airfreight Handling Ltd and Another [2004] 1 EA 52 where it was held that-
30.From the record, it is evident that the insurer indemnified the insured after the accident. This can be seen from plaintiff exhibit No 7, which is a letter dated 21st January, 2016 addressed to the insurer from the insured, requesting them to submit the payment of Kshs 3,036,800/= directly to Toyota Kenya Mombasa Branch. The respondent produced a payment voucher dated March 14, 2016, bearing a stamp from the insurer endorsing the word ‘Paid EFT/RTGS” on March 22, 2016’ as plaintiff exhibit No 8 which shows that the said amount of Kshs 3,036,800/= was credited into Toyota Kenya’s account on behalf of the insured under policy No 087-HO-132204-15. As such, I find that indeed the insurer did indemnify its insured, the respondent herein for the loss he suffered.
WhetheR The Appellant Was 100% Liable For The Road Traffic Accident That Occurred On 22nd December, 2015.
31.As correctly observed by the Trial Magistrate, the appellant did not call any witnesses in support of his case. The respondent had pleaded that the doctrine of res ipsa loquitor was applicable in his case, therefore, once he had proved his case on a balance of probabilities, the burden of proof shifted to the appellant to disprove the particulars of negligence attributed to him. Judge Lenaola (as he then was) in the case of Esther Nduta Mwangi & another vs Hussein Dairy Transporters Limited Machakos HCCC No 46 of 2007, held that:
32.Similarly, in Public Trustee vs City Council of Nairobi [1965] EA 758, it was held that:
33.The appellant in his statement of defence denied that there was an accident involving motor vehicle registration Nos KCF 119C and KBJ 141Q accident but also averred that if there was an accident, it was solely caused by the negligence on the part of the respondent’s driver. The appellant however chose not to call any evidence in support of his case, hence the particulars of negligence attributed to the respondent were not proved and remain as mere allegations. From the record, PW2 who was the driver of the respondent’s motor vehicle testified that the appellant’s vehicle came from the opposite direction overtaking six trucks, he swerved off the road but the vehicle came to his side and they had a head on collision. PW4 on the other hand testified that on reaching the scene of the accident, they found the left front tire of the appellant’s motor vehicle had burst and as a result, the appellant’s driver had lost control and collided head on with the respondent’s motor vehicle.
34.PW4 corroborated the testimony of PW2 thus proving the respondent’s case on a balance of probabilities that the appellant was wholly to blame for the occurrence of the accident. I agree fully with the decision of the Trial Magistrate that the appellant was wholly to blame for the occurrence of the accident as no evidence was adduced to the contrary.
Whether The Claim For Special Damages Was Specifically Pleaded And Proved.
35.Special damages must be specifically proved and pleaded. It is not disputed that the respondent in his plaint pleaded Kshs 2,500,000/= as the pre-accident value of motor vehicle registration No KCF 119C less salvage value of Kshs 450,000/=. The respondent also pleaded storage & towing charges, assessor’s fees, investigator’s fees and police abstract fees. It is evident that the respondent proved storage and towing charges, Motor Vehicle Assessor’s fees, Investigator’s fees and police abstract fees by way of documentary evidence. The pre-accident value of motor vehicle registration No KCF 119C was proved by the assessment report dated December 29, 2015 which was produced as plaintiff exhibit No 3. In the absence of an assessment report by the appellant detailing a different pre-accident value, the assessment report by Kibmat Loss Assessors is taken to be conclusive evidence on the pre-accident value of motor vehicle registration No KCF 119C. I see no valid reason to disturb the Trial Court’s award as this was purely on the basis of the special damages correctly pleaded and proven.
36.In regard to the issue of the alleged non-consideration of the appellant’s submissions by the Trial Court, I make reference to the case of William Ndinya Omollo v Come Con Africa Limited [2004] eKLR, where the Court held that the submissions of the defence Counsel when trying to fault the evidence of PW1 did not hold as in doing so, he was trying to give evidence for his client from the bar.
37.I have gone through the Trial Magistrate’s judgment and at paragraph 5 on page 3, he stated that he had looked at the pleadings and evaluated the evidence adduced by the plaintiff and considered the submissions by both sides and the relevant case law relied on by the parties. It is therefore my considered view that the Trial Magistrate considered the appellant’s submissions in arriving at his decision.
38.The upshot is that the appeal herein is devoid of merit. It is dismissed with costs to the respondent.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF OCTOBER, 2022. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Mwango h/b for C.B Gor & Gor Advocates for the appellantMs Nasimiyu for the respondentMr. Oliver Musundi – Court Assistant.