[2008] KEHC 275 (KLR)
The High Court found that the trial court had good reason to reject Sergeant Makhoka's evidence, given the inadequacy of the sketch plan and the consistency of the defendant and his witness. The appellant failed to provide a satisfactory explanation for the accident, particularly regarding the slit deposit on the...
Source-derived case information.
- Citation
- [2008] KEHC 275 (KLR)
- Parties
- Appellant: Daniel Gichohi Mwangi; Respondent: Samuel Kahura Nganga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Road Traffic Accidents, Apportionment of Liability, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Gichohi Mwangi
Appellant
Samuel Kahura Nganga
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in apportioning liability at 70% against the appellant.
- 2 Whether the trial court properly evaluated the evidence regarding the cause of the accident.
Ratio Decidendi
The High Court found that the trial court had good reason to reject Sergeant Makhoka's evidence, given the inadequacy of the sketch plan and the consistency of the defendant and his witness. The appellant failed to provide a satisfactory explanation for the accident, particularly regarding the slit deposit on the road. The court concluded that there was no basis to interfere with the trial court's apportionment of liability, and the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- This judgment will also apply to Civil Appeal No. 23 of 2003.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 16 of 2002
DANIEL GICHOHI MWANGI..……....……….…..APPELLANT
VERSUS
SAMUEL KAHURA NGANGA……….…….....RESPONDENT
JUDGMENT
This an appeal from the judgment of J. S. Kaburu, Senior Principle Magistrate delivered on 24th January 2002 in Nakuru CMCC 1047 of 1998 in which he found the plaintiff who is the appellant in this appeal 70% liable and ordered him to pay the defendant/Respondent 210,330/- net of contribution being general damages for injuries and material damage the respondent suffered in the accident. No issue is taken on the amount awarded. This appeal is therefore only on the issue of liability.
The Appellant contends that the trial court had no good reason of rejecting Sergeant Makhoka’s evidence more so when it was the evidence of the Respondent's witness which supported his case. He further argued that if he was to blame as testified by Sergeant Makhoka that should have been noted in the police abstract report. He also cast aspersions on the evidence of PW3 whom he said was plucked from the streets as his name was in the police abstract report.
I have considered these submissions and the evidence on record. This being a first appeal I am required by law to re-evaluate the evidence on record and satisfy myself that the court’s decision is based on the settled principles and credible evidence. - Mwanasokoni Vs Kenya Bus Service Ltd & Others [1982-88] 1 KAR 870I. Having done that I find that the defendant was consistent and so was his witness, Charles Gicheha, DW3 and the court had good reason for rejecting the evidence of Sergeant Makhoka. The sketch plan produced was very rough and does not even show the distance from the road verges to the point of impact. If this was a rough sketch plan drawn at the scene of the accident it is not clear why Sergeant Makhoka did not draw a fair one when he got back to his office. I also cannot find any good reason to say that Charles Gicheha, DW3, was not at the scene of accident and did not witness it occur. His evidence was that the plaintiff was attempting to avoid a slit deposit on his side of the road when he swerved to the defendant’s side. The plaintiff said nothing about that deposit.
Having carefully considered the evidence on record I find no reason to fault the decision of the trial court and I therefore accordingly dismiss this appeal with costs to the Respondent. As agreed by the parties this judgment will apply to Civil Appeal No. 23 of 2003.
DATED and delivered at Nakuru this 3rd day of November 2008.
D. K. MARAGA
JUDGE.