[2023] KEHC 19256 (KLR)
The High Court found that the trial court properly considered the evidence and correctly apportioned liability equally between the estate of the deceased and the respondent. The deceased, as the rider of the motorcycle, and the respondent, as the owner of the vehicle involved in the collision, both had control and...
Source-derived case information.
- Citation
- [2023] KEHC 19256 (KLR)
- Parties
- Appellant: Marisalina Adhiambo Barasa (Suing as Legal Representative of the Estate of Simon Wesonga - Deceased); Respondent: Gemini Stores Limited
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E011 of 2022
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- WM Musyoka
- Legal Topics
- Road Traffic Accidents, Apportionment of Liability, Negligence, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marisalina Adhiambo Barasa (Suing as Legal Representative of the Estate of Simon Wesonga - Deceased)
Appellant
Gemini Stores Limited
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in apportioning liability equally between the estate of the deceased and the respondent.
- 2 Whether the trial court applied the correct principles in determining liability for the road traffic accident.
Ratio Decidendi
The High Court found that the trial court properly considered the evidence and correctly apportioned liability equally between the estate of the deceased and the respondent. The deceased, as the rider of the motorcycle, and the respondent, as the owner of the vehicle involved in the collision, both had control and management of their respective vehicles. The trial court, having heard and seen the witnesses, was best placed to assess the degree of contribution of each party. There was no demonstration that the trial court applied the wrong legal principles or misapprehended the evidence. Therefore, there was no basis for the appellate court to interfere with the trial court's apportionment...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
23 paragraphs
Barasa ((Suing as Legal Representative of the Estate of Simon Wesonga - Deceased)) v Gemini Stores Limited (Civil Appeal E011 of 2022) [2023] KEHC 19256 (KLR) (30 June 2023) (Judgment)
Neutral citation: [2023] KEHC 19256 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E011 of 2022
WM Musyoka, J
June 30, 2023
Between
Marisalina Adhiambo Barasa
Appellant
(Suing as Legal Representative of the Estate of Simon Wesonga - Deceased)
and
Gemini Stores Limited
Respondent
(Appeal from judgment and decree of Hon. FY Kulecho, Senior Resident Magistrate, SRM, in Busia RMCCC No. 27 of 2020, of 14th March 2022)
Judgment
1. The appellant had sued the respondent, at the primary court, for compensation, on behalf of the estate of the deceased, who died, following a traffic road accident on November 20, 2018, along Mumias-Busia road. The deceased was a rider of an unidentified motorcycle, which was in a collision with vehicle registration mark and number KBW 243W, said to have belonged to the respondent, and liability was attributed to the respondent, on account of negligence. The respondent filed a defence, denying the accident, and everything else pleaded in the plaint. In the alternative, the respondent pleaded that, if any accident occurred, it must have been due to negligence on the part of the deceased, or he contributed to it.
2. A trial was conducted. On liability, the court held the respondent and the deceased equally liable. On quantum, the court assessed damages at Kshs 20, 000. 00 for pain and suffering, Kshs 100, 000. 00 for loss of expectation of life, Kshs 4, 712, 000. 00 for loss of dependency, Kshs 274, 000. 00 special damages, making a grand total of Kshs 5, 106, 000. 00, less 50% contribution, making Kshs 2, 553, 000. 00.
3. The appellant was aggrieved, hence the appeal. Only 2 grounds are listed, around the issue of liability.
4. The appeal was canvassed by way of written submissions, and it turns on only one issue, liability.
5. The appellant was the administratrix of the estate of the deceased, the rider of the accident motorcycle. Liability could be properly apportioned against the estate of the deceased. Liability was not apportioned against the appellant, but rather against the estate that she represents. The accident involved 2 vehicles, the motorcycle ridden by the deceased herein, and the vehicle belonging to the respondent. There was a collision of the 2 vehicles, and liability could be properly apportioned between the persons who had control and management of the 2 vehicles, based on the degree of contribution of each of the drivers . The trial court heard and saw the witnesses, and apportioned liability based on the material that was placed before it. I am not persuaded that I should interfere. The trial court did not apply the wrong principles.
6. I find no merit in the appeal herein, and I hereby dismiss it. Each party shall bear their own costs.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 30TH DAY OF JUNE 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMr. Omondi, instructed by Omondi & Company, Advocates for the appellant.Mr. Abande, instructed by Omondi Abande & Company, Advocates for the respondent.