[2022] KEHC 11180 (KLR)
The court found that the trial court erred in holding the appellant 100% liable for the accident, given that the respondent knowingly agreed to be carried as an excess pillion passenger, thereby contributing to the risk and aggravation of the accident. The court held that liability should be apportioned at 60% to...
Source-derived case information.
- Citation
- [2022] KEHC 11180 (KLR)
- Parties
- Appellant: Christine Daniel; Respondent: Kevin Mova Munywoki
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24A of 2019
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed in part; judgment on liability and quantum set aside and substituted.
- Judges
- RK Limo
- Legal Topics
- Apportionment of Liability, Contributory Negligence, Motorcycle Accidents, Damages Quantification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Daniel
Appellant
Kevin Mova Munywoki
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in holding the appellant 100% liable for the accident.
- 2 Whether the respondent, as an excess pillion passenger, should bear contributory liability.
- 3 Whether the quantum of damages awarded by the trial court was excessive.
Ratio Decidendi
The court found that the trial court erred in holding the appellant 100% liable for the accident, given that the respondent knowingly agreed to be carried as an excess pillion passenger, thereby contributing to the risk and aggravation of the accident. The court held that liability should be apportioned at 60% to the appellant and 40% to the respondent. On the issue of quantum, the court found the award of Kshs. 1 million to be excessive and not supported by the parties' submissions or the evidence. The court set aside the award and substituted it with general damages of Kshs. 600,000 and special damages of Kshs. 11,961, subject to a 40% reduction for the respondent's contributory...
Court Disposition
Appeal allowed in part; judgment on liability and quantum set aside and substituted.
Orders
- Judgment on liability set aside; liability apportioned as appellant 60%, respondent 40%.
- Award of Kshs. 1,000,000 set aside; respondent awarded general damages of Kshs. 600,000 and special damages of Kshs. 11,961, less 40% liability.
Full Case Text
Judgment text and source record
21 paragraphs
Daniel v Munywoki (Civil Appeal 24A of 2019) [2022] KEHC 11180 (KLR) (23 June 2022) (Judgment)
Neutral citation: [2022] KEHC 11180 (KLR)
Republic of Kenya
In the High Court at Kitui
Civil Appeal 24A of 2019
RK Limo, J
June 23, 2022
Between
Christine Daniel
Appellant
and
Kevin Mova Munywoki
Respondent
(Being an appeal against the decree and judgement delivered on 20th day of March 2019 by Hon. J. Munguti (P.M) in Kitui CMCC No. 158 of 2017)
Judgment
1. This appeal is related to Civil Appeal No. 24B of 2019 and this court could have adopted the whole judgement in that other appeal in this appeal but for the peculiar circumstances which I will briefly point out for the interest of judicial time. I have exhaustively analyzed the evidence tendered in court in Civil Appeal No. 24B of 2019.
2. In this appeal, the respondent filed submissions unlike the former appeal and opposed this appeal.
3. The other peculiarity in this appeal is the fact that the respondent was a pillion passenger unlike the former where the respondent was a rider.
4. In my view, there is no contest on the fact that the respondent herein agreed to be carried as an excess pillion passenger. It is difficult to know given the evidence tendered whether he was the 1st or 2nd pillion passenger. What is clear is that if the rider had carried only one pillion passenger then he could have been made to pay for 2 casualties of the accident which he undoubtedly caused. This court having considered the circumstances obtaining, it is only fair that the respondent be made to contribute to the liability because of allowing himself to be carried in twos. He should have gotten another boda boda to take him to wherever destination. By allowing himself to be an excess passenger and in the process an accident occurred even if he did not cause it, the fact that there were excess passengers added or aggravated the attendant liability attributed to the appellant. This court finds that the trial court erred when it held that the appellant was 100% to blame. Had the respondent not been an extra passenger, the appellant could not have been made for two casualties but one.The passenger being an excess passenger ought to have been apportioned 40% liability. In my considered view a party should not be asked to carry the whole burden where it is obvious that the action of the victim or 3rd party aggravated the damages payable. The respondent was also not wearing a helmet and though this issue was not well ventilated it may have contributed to the seriousness of the head injuries.On quantum, I notice that in the judgement while the trial court rightly observed that the respondent had submitted for Kshs. 650,000 while the appellant submitted for an award in the region of Kshs. 350,000 it however awarded Kshs. 1 million which I find a bit excessive. I also find the award of Kshs. 5,000 for police officer who had testified in a related case to be unjustified. The award should not have been awarded in the first place. Taking everything into consideration, this court set aside the judgement on liability and in its place, liability is apportioned as follows: -a.Appellant 60% liabilityRespondent 40% liabilityOn quantum the award of Kshs. 1 million is set aside, the respondent is awarded as follows: -i.General damages Kshs. 600,000ii.Special damages Kshs. 11,961Less 40% liability - 61,196. 10550,764. 90
The respondent will have costs and interests in the lower court with due apportionment of liability being factored in. The appellant shall have 40% costs in this appeal.
DATED, SIGNED AND DELIVERED AT KITUI THIS 23RD DAY OF JUNE,2022. HON. JUSTICE R. K. LIMOJUDGE