Ngumbao v Mwatate & 2 others (Civil Appeal 43 of 1987) [1988] KECA 96 (KLR)

4. Was the cause of accident the negligent driving by the said driver Horace Amani Chitonga? 3. Mr. Jiwaji ended his address to the Court with the plea that the appeal should be allowed more on the Plaintifis’ omissions than on the positive steps they had taken. The most fatal omission, according to Mr. Jiwaji, was that the driver was not sued as co-defendant with Mr. Jonathan Ngumbao, who was alleged to be the owner of the vehicle. We assume for the moment that the Defendant was the owner. If the owner is vicariously liable for the driver, the owner pays in damages as well as the driver. If the owner is not vicariously liable, the driver, if negligent, is responsible for the payment of damages alone. (See Anyanzwa, Otieno & Mbinji v Luigi De Gasperis & Another, Civil Appeal No. 31 of 1981). In the latter case, this Court pointed out that the failure to sue the driver or his personal representative, left the injured passengers without redress since the owner of the vehicle was not vicariously liable. Thus having not sued the driver, the case stands or falls on the liability of the Defendant. 4. But there is another way of looking at the liability of the driver. Suppose that the negligence of the driver was not proved, would there be any negligence for which the owner would be vicariously liable? It appears to us that the reason why the learned Judge framed issue 4, was to make sure that there was some liability for which the Defendant might possibly be liable. That liability was admitted on both sides, because of the driver’s conviction for careless driving. That conviction became conclusive evidence as to the driver’s guilt under Section 47A of the Evidence Act (Cap. 80). 5. There being no doubt as to the driver’s negligence, the main question concerns the Defendant’s liability. Here we come to the second of Mr. Jiwaji’s alleged omissions. The owner was not sued. We will suppose he is right. Apparently the Kaloleni Central Restaurant, P.O. Box 31, Kaloleni, was given in the vehicle’s log book as the full name of the owner. The signature was that of “Tabitha M. Ngumbao.” The purpose of this log book is to deem that the person in whose name a vehicle is registered, is its owner, unless the contrary is proved. It is not clear that the Kaloleni Central Restaurant is a “person” in law. But we will assume it is. What appears clear is that the Defendant’s wife runs the restaurant, as the liquor and other licences show. It may be supposed that the vehicle was owned by the Kaloleni Central Restaurant. Mr. Jiwaji submitted that the omission of impleading the Restaurant or Mrs. Ngumbao was fatal. 6. That conclusion however does not appear to hold good. The evidence of the Complainants was that the Defendant played a considerable part in running the restaurant. It was with the Defendant that the representatives of the two schools negotiated the hiring of the pick-up, and that then the Defendant sent for the driver, who came to the group. Winston said:“He instructed the driver to take us to Chonji St. Martin’s Primary School. So we all pupils and teachers booked that pick-up and started our journey back.” (“He” refers to the Defendant). 7. The situation then is that the driver was allegedly acting under the instructions of the Defendant. The driver drove towards the school because the Defendant had been paid the hire charges. The Defendant had an interest in the journey, from which he would gain a benefit. If that evidence holds good, the driver was the agent of the Defendant, acting under express instructions, not by the Restaurant, or Mrs. Tabitha Ngumbao, but the Defendant. Consequently, the Defendant being directly responsible, whether or not he actually owned the vehicle, or whether or not he is liable to the Restaurant or Mrs. Ngumbao for the destruction of the vehicle, the Defendant was the right person to sue as having used the vehicle by hiring it, with its driver. 8. But Mr. Jiwaji argued that there was not suficient evidence for the trial Court to find that the Defendant hired the vehicle. https://new.kenyalaw.org/akn/ke/judgment/keca/1988/96/eng@1988-02-10 2

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9. We come now to the problem of Kneller J having heard the evidence of Chando Kazenga in Civil Suit No 1121 of 1979 before that suit was consolidated with the others. Bhandari J continued to hear the case as a whole from where Kneller J left ofi. As a result he did not hear or see the witness Chando Kazenga, and based his decision upon the evidence of Winston Tunje Gambo, (Plaintifi in Civil Suit No.1122 of 1979). The problem which Mr. Jiwaji put forward was that the evidence of Chando Kazenga was in confiict with that of Winston. It was submitted therefore that as the contradictions were “blatant” another witness ought to have been called. As far as Chando Kazenga was concerned, the Area Organiser, John Mvoi had hired the vehicle. As far as Winston was concerned, it was Martin Khoya who actually made the payment. The full complaint seems to be, then, that such evidence as is recorded, was not suficient; it ought to have been supplemented by persons who actually hired the vehicle; and it was a mistake for the learned Judge to rely on Winston’s evidence to the exclusion of Chando’s account, although the Judge had not seen Chando give evidence. 10. Mr. Pandya made short shrift of all these complaints. The parties, he said, had agreed to the consolidation of the cases, and Chando was not required to be recalled. There was no doubt that both schools had hired this vehicle from the Defendant. 11. The procedure adopted by Bhandari J is sanctioned by Order XVII Rule 10 of the Civil Procedure Rules. He was entitled to deem the evidence recorded by Kneller J as if it had been recorded by himself, and to continue on from where Kneller J left ofi. But there is the further consideration, that if it is important that the Court should see and hear the witness; that justice cannot be seen to be done unless that witness has been examined by the succeeding Judge in open Court, and so to determine important confiicts of evidence; then a new trial should be ordered. But Counsel have some responsibility in this matter. They cannot request consolidation, or find that consolidation involves accepting evidence already recorded, without considering the efiect of that evidence; and if there is a confiict they should assist in at least submitting that the witness should be recalled, even if not submitting that the trial start de novo. Here, according to the record, both Counsel were prepared to act on the evidence recorded. It is granted that it is the Court’s final duty to see that a fair trial has been held. In the end Mr. Jiwaji answered this Court’s challenge on these lines, by saying that he did not want to submit that with hind sight the parties ought not to have accepted the evidence recorded by Kneller J. Looking at the matter all round, we do not detect any miscarriage of justice having been occasioned, and we conclude that it was within the learned Judge’s discretion to continue the trial from where Kneller J left ofi. 12. We have come to that conclusion having studied Mr. Jiwaji’s complaints as to the nature of he evidence. It is true that neither Chando nor Winston seem to have been the prime factors in the contract of hiring alleged by them. There was also some difierence as to what sum was paid. But the situation revealed by the evidence is clear enough. The two schools, represented in evidence by Chando and Winston, had attended a sports day, and the transport that they had engaged to take back the teams of children and teachers had failed to arrive. They were forced to obtain new transport. They turned to the Defendant. The two schools engaged his pick-up and drive to return their representatives to the schools. It was no doubt a group occasion. Several people from one school and several people from the other school were present to see what arrangements could be made to escape from their predicament. It must surely be accepted that all those teachers and the two headmasters, were greatly concerned with the return of their twenty-four pupils. Consequently it could well be accepted by the trial Court that representatives of the group who saw what happened could testify to the hiring. Other witnesses might have been called; but it was not essential. Judging from the record, the witnesses who testified to the hiring of the pick-up could well have been preferred to the Defendant, whose account did not impress the learned Judge. It does not appear the discrepancies between the evidence of Chando and Winston afiected their basic testimony, as to what happened; and therefore if on this Court’s evaluation of the evidence, the https://new.kenyalaw.org/akn/ke/judgment/keca/1988/96/eng@1988-02-10 3

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evidence of Chando is taken into account, whereas the High Court did not, (we suspect ex abundanti cautela), the result is not difierent. In our opinion, the learned Judge in general evaluated the evidence correctly. 13. We would answer the issues as follows:-On issue 1: the Defendant was not the owner of the vehicle, but he used and controlled it as if he were, rendering actual ownership immaterial;issue 2: the defendant did hire the vehicle involved inthe accident;issue 3: the driver of the vehicle, Horace Amani Chitonga was the agent of the Defendant acting on the Defendant’s express instructions in a journey in which the Defendant had an interest and derived financial benefit. 14 In the result, the Defendant/Appellant was properly found to be vicariously liable for the negligence of the driver Horace Amani Chitonga. 15. The appeal is dismissed with costs. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF FEBRUARY 1988 H.K. PLATT ……………………. JUDGE OF APPEAL J.M. GACHUHI ……………………. JUDGE OF APPEAL J.R.O. MASIME ……………………. AG JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/1988/96/eng@1988-02-10 4

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