Devkan Enterprises Limited v Moses Wachira Muthondeki

b) The learned trial magistrate erred in law by misapplying the doctrines of res ipsa loquitor and vicarious liability. c) The learned trial magistrate erred in law by revoking witness summons that she had earlier issued pursuant to an application made under Section 19 of the Small Claims Court Act. d) The learned trial magistrate erred in law by failing to take into account that special damages ought to be strictly proven. e) The learned trial magistrate erred in law by holding that during cross examination, the claimant’s witness could not be referred to documents filed by the respondent, rather only to be cross examined and referred to the claimant’s document. 3. Parties disposed of the appeal by way of written submissions. The Appellant’s Submissions 4. The appellant refers to the cases of John Nderi Wamugi vs Ruhesh Okumu Otiangala & 2 Others [2015] KECA 214 (KLR); Equator Distributors vs Joel Muriu & 3 Others [2018] KECA 53 (KLR) and Issa Transporters Limited vs Tsama [2021] KECA 296 (KLR) and submits that vicarious liability is not established by the mere ownership of a motor vehicle but HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 2

page 2 of 11

requires proof of a legal relationship between the owner and the tortfeasor. It further requires one to establish that the acts or omission was committed in the course of such relationship with consent. 5. The appellant argues that the respondent did not plead any employment or agency relationship. Further, the appellant denied that the purported driver was its employee, servant Additionally, the or acting appellant under submits its that authority. its witness testified that the appellant company does not operate on public holidays including 1st May 2021. Further, they did not consent or authorize for any person to drive the subject vehicle on the material day. The appellant refers to the case Administrator of Onyango and legal vs Otengo (Suing representative of as the Estate of Alfred Keya Makhotsa (Deceased) & 2 Others (Civil Appeal E051 of 2022) [2024] eKLR and submit that a party cannot be held vicariously liable unless the primary tortfeasor has been procedurally and lawfully found to be negligent. 6. The appellant argues that the trial court in finding them 100% liable solei relied on the contents of the police abstract which blamed its unnamed driver for the accident. The appellant submits that it objected to the production of the police abstract and applied for summons to be issued to the investigating officer to produce the original police abstract and the occurrence book excerpt but the trial court suo moto revoked the witness summons HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 3

page 3 of 11

it had issued to the investigating officer without recording the revocation on the court record. 7. The appellant refers to the cases of Florence Mutheu Musembi & Geoffrey Mutunga Kimiti vs Francis Karenge [2021] KEHC 8336 (KLR) and Riara Group of Schools Limited vs Africa Geothermal International (Kenya) Ltd [2023] KEHC 26525 (KLR) and submits that the contents of a police abstract are not proof of liability. 8. Relying on the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2014] KECA 455 (KLR), the appellant argues that the trial court by failing to consider the evidence on record infringed on their right to a fair hearing. The appellant further argues that the trial court failed to consider that the alleged driver was unnamed, not called as a witness and not afforded an opportunity to be heard, the investigating officer was not called as a witness and the motor vehicle inspection report, sketch map or plan was not produced as evidence which is a manifest error of law necessitating intervention by the court. 9. The appellant submits that the learned adjudicator misdirected herself in law by denying its advocate the liberty to cross examine the respondent’s witness on documents it filed at the trial court. Pursuant to Section 146 of the Evidence Act, a witness may be cross examined on any relevant matter including the opposing side’s filed documents that are properly on record. HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 4

page 4 of 11

10. The appellant submits that special damages must be specifically pleaded and proven. The trial court relied on insurance claim credit notes, invoices, fee notes and assessment reports to award sums claimed, without the respondent proving that the amounts were actually incurred or paid. The Respondent’s Submissions. 11. The respondent submits that he called CW2 a police officer from Tigoni Police Station who produced a police abstract and confirmed that there was an accident that occurred on 1st May 2021 involving motor vehicle registration number KCF 115C and KCF 223S. According to the police officer, motor vehicle registration number KCF 223S was blamed for the accident. The respondent submits that he also testified that he was involved in an accident with motor vehicle registration number KCF 223S. 12. The respondent submits that although the appellant called RW1 as a witness that motor vehicle registration number KCF 223S did not leave the company, there was no evidence adduced to support those allegations. 13. The respondent argues that the appellant being a limited liability company must have had a driver who drove motor vehicle registration number KCF 223S and caused the accident. the driver must have acted either on his own behest or at the behest of the appellant and the appellant was held vicariously liable for the negligence of HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 5

page 5 of 11

his authorized driver. To support his contentions, the respondent relies on the case of Samson Kairu Chacha vs Isaac Kiiru King’ori [2016] KECA 818 (KLR). 14. The respondent submits that he indicated his intention to exit the Nairobi Naivasha Highway at Luqman when suddenly and without warning, the driver of motor vehicle registration number KCF 223S rammed into the rear of his motor vehicle. The respondent submits that CW1 and CW2 confirmed that police officers visited the scene of the accident and blamed motor vehicle registration number KCF 223S. The respondent argues that the learned adjudicator did not rely on the police abstract but also on the evidence on record adduced by CW1. 15. The respondent submits that the learned adjudicator did not err during cross examination pursuant to Section 32(1) of the Small Claims Court Act which stipulates that the court shall not be bound by the strict rules of evidence. 16. The respondent submits that special damages were pleaded and proved and it is clear the learned adjudicator relied on the case of Nkuene Dairy Farmers Cooperative Society & Another vs Ngacha Ndeiya (2010) eKLR in awarding the special damages sought. HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 6

page 6 of 11

Issues for determination 17. The main issues for determination are:- a) Whether the appeal is defective. b) Whether liability apportioned by the trial court was against the weight of the evidence adduced. c) Whether the respondent proved his claim for material damage to the required standard. The Law 18. The Court of Appeal while referring to a second appeal, which is essentially on points of law and thus similar to the duty of this court under Section 38 of the Small Claims Court Act, set out the duty of the second appellate court in the case of Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR as follows:I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters that they should have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 7

page 7 of 11

19. In distinguishing between matters of law and fact the Court of Appeal stated in Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR as follows:I have anxiously considered the pleadings, the evidence on record, the judgment of the learned Senior Resident Magistrate and the judgment of the superior court, the grounds of appeal, the submissions of the learned counsel as well as the authorities to which we were referred. First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of retrial and facts must be revisited and analysed a fresh. See Selle and Another vs Associated Motor Boat Company Limited and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they considered or to failed should consider not have matters they should have considered or looking at the entire decision, it is perverse. HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 8

page 8 of 11

20. I have perused the grounds 1-6 and 9-10 in the memorandum of appeal and noted that the grounds touch on the fact that the learned adjudicator failed to appreciate that a police abstract cannot be used as conclusive evidence of an accident; that the respondent failed to prove the elements of negligence and vicarious liability upon the appellant. 21. I have further perused the judgment of the learned adjudicator and noted that the court found that the respondent proved his claim and entered judgment in his favour. The grounds as raised by the appellant touch on matters of fact which will require this court to scrutinize and re-evaluate the evidence once more. However, that is contrary to Section 38 of the Small Claims Court Act which provides that appeals to the High Court shall be only on matters of law. The only matters of law raised by the appellant are grounds 7 and 8 of the memorandum of appeal. As such, this appeal cannot be said to be defective for it has two grounds relating to matters of law. 22. Ground 7 of the memorandum of appeal is to the effect that the learned adjudicator revoked witness summons that she had earlier issued to an application made under Section 19 of the Small Claims Court Act. I have perused the record of appeal and noted that on 27 th May 2024, the appellant made an application for witness summons to be issued to the Traffic Base Commander, Tigoni Police Station to produce the original police abstract and record of original occurrence book. The matter came HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 9

page 9 of 11

up for hearing on 10th June 2024 and the appellant was ready to proceed with the hearing despite not having the witness statement by the police officer. On 11 th June 2024, the matter proceeded with both parties presenting their respective cases. A police officer from Tigoni Police Station testified as witness without any objection from the appellant never raised any objection to him testifying nor was the production of the police abstract opposed. And the police abstract was tendered in evidence. It is therefore, not correct for the appellant to allege that the trial court revoked the witness summons whereas the appellant accepted the police officer to testify. During the hearing, the appellant was represented by a counsel and cannot claim to have been unaware of his legal rights. The Traffic Base Commander was represented by his officer from Tigoni Traffic bae which was in order. This ground of appeal therefore fails. 23. On ground 8 of the memorandum of appeal, I have perused the trial record and noted that there is no indication that the learned adjudicator held that during cross examination, the claimant’s witness could not be referred to the documents filed by the respondent. This ground of appeal has no basis in the record. HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 10

page 10 of 11

24. Having found no merit in the two grounds of appeal based on issues of law, I reach a conclusion that this appeal has no merit and it is hereby dismissed with costs. 25. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE 2025. F. MUCHEMI JUDGE HC. CIVIL APPEAL NO. E251 OF 2024 PAGE 11

page 11 of 11