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Court of AppealDismissedCivil Appeal No. 83 of 2017· [2017] KECA 70 (KLR)

David Marwa & another v Nelson Njihia Kimani [2017] KECA 70 (KLR)

Court of Appeal of Kenya
22 November 2017
GKG.B.M. KariukiFSF. SichaleSKS. ole Kantai
2,055 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a KSh 1.5M injury award against a vehicle owner who couldn't prove who was driving, confirming employers must keep driver records.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri (sitting at Nakuru) against the judgment of Mulwa, J. in H.C.C.C. No. 294 of 2010, in which the respondent, injured when the steering of motor vehicle KBG 039 L cut on the Nakuru/Eldoret road, obtained judgment against the 1st appellant with liability apportioned 50:50, and general damages of Ksh.1.5M, loss of future earning capacity of Ksh.1.2M, future medical expenses of Ksh.160,000 and special damages of Ksh.158,890, halved. The suit against the 2nd appellant (Steady Limited) was dismissed without costs. The appellants challenged the finding that the respondent was the 1st appellant's driver, the absence of proof that the steering cut, the grant of loss of future earning capacity, quantum, and the refusal of costs to the 2nd appellant. Reappraising the evidence under its Rule 29(1) mandate, the Court held that the respondent was the lawful driver, noting the 1st appellant's failure to produce the record of drivers required by section 111 of the Traffic Act or to call the alleged driver 'Wasi Wasi', and observing that a letter of employment can only come from an employer. The Court saw no reason to disturb the 50:50 apportionment absent conclusive proof of the accident's cause, found the damages not unreasonable, and declined to entertain the 2nd appellant's costs grievance since counsel conceded the Notice of Appeal did not raise it. The appeal was dismissed with costs to the respondent. Binding lower courts: the employer's statutory duty to keep a driver record and the first appellate court's re-evaluation mandate.

Key legal issues

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01

Employment of the respondent as the 1st appellant's driver

Holding

The respondent was the lawful driver of motor vehicle KBG 039 L; the 1st appellant's denial failed because he neither produced the statutory record of drivers nor called the alleged driver 'Wasi Wasi'.

Reasoning

The 1st appellant claimed the vehicle was under the charge of one 'Wasi Wasi', who was not called as a witness. Section 111 of the Traffic Act obliges an employer to keep a written record of employed drivers; none was produced. The vehicle had also been driven throughout its route by the respondent without objection. The letter-of-employment argument failed because only an employer can issue such a letter. The Court therefore affirmed the trial judge's finding.

p. 3
02

Cause of the accident and apportionment of liability

Holding

In the absence of conclusive proof of the cause of the accident, the trial court's apportionment of liability at 50:50 between the plaintiff and the 1st defendant should not be disturbed.

Reasoning

DW2 inspected the vehicle and confirmed the steering wheel was broken, though attributing the breakage to high speed. The trial judge attributed the accident to lack of good working condition combined with high speed, apportioning liability equally. The Court of Appeal, exercising its first-appeal mandate, found no basis to interfere with that finding of fact.

p. 3
03

Quantum of damages

Holding

The awards of Ksh.1.5M for pain and suffering, loss of future earning capacity and future medical expenses were not unreasonable given the injuries sustained.

Reasoning

The trial judge considered relevant comparative awards before fixing general damages for pain and suffering at Ksh.1,500,000. The Court found the figure reasonable given the serious injuries, and likewise saw nothing unreasonable in the awards for loss of future earning capacity and future medical expenses, declining to interfere with quantum.

p. 3
04

Costs for the 2nd appellant

Holding

The Court declined to disturb the trial judge's refusal to award the 2nd appellant costs because the Notice of Appeal did not raise that grievance.

Reasoning

Counsel for the appellants conceded at the hearing that the Notice of Appeal did not include the 2nd appellant's complaint about costs. In the absence of a proper ground of appeal, the Court would not entertain the issue, and in any event the award of costs is a matter of trial-court discretion.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal is obligated to re-evaluate, re-assess and re-analyse the evidence and reach its own conclusions, interfering with findings of fact only where they are based on a misapprehension of the evidence or wrong principles.
  • An employer who employs a person to drive a motor vehicle must keep a written record of the driver's name, address and driving licence number under section 111 of the Traffic Act; failure to produce such a record undermines a denial that the claimant was the employer's driver.
  • A party cannot blame the other side for failing to produce a document that only the first party is capable of issuing - here, a letter of employment which only an employer can issue.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The Court declines to disturb the part of the judgment concerning costs not awarded to the 2nd appellant, the Notice of Appeal not having raised that issue

Authorities

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Legislation

  • The Traffic ActSection 111(1), (2) and (3)
  • Court of Appeal RulesRule 29(1)

Cases cited (2)

  • Cecillia Gathoni versus George Kariuki Kabugu
    [2013] eKLR
  • Sumaria & Another versus Allied Industries Ltd
    [2007] KLR 1
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 294 of 2010
Jurisdiction invoked
First appeal under the rules of the Court of Appeal (Rule 29(1) of the Court of Appeal Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Marwa & another v Nelson Njihia Kimani [2017] KECA 70 (KLR)", Case Analysis (2017). Civil Appeal No. 83 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/70/eng@2017-11-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.