[2022] KEHC 13515 (KLR)

Ipwi (Suing as legal representative of the Estate of Samuel Kiogora (Deceased) v Imanyara (Civil Appeal E092 of 2021) [2022] KEHC 13515 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13515 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E092 of 2021

TW Cherere, J

October 6, 2022

Between

Simon G Ipwi (Suing as legal representative of the Estate of Samuel Kiogora (Deceased)

Appellant

Suing as legal representative of the Estate of Samuel Kiogora (Deceased

and

Kinoti Imanyara

Respondent

(Being an Appeal from the Judgment and Decree in Isiolo CMCC No. 23 OF 2017 by Hon. E.Ngigi (PM) on 15th June, 2021)

Judgment

1. Simon G. Ipwi (Appellant) (suing as administrator and legal representative of the estate of Samuel Kiogora (filed suit in the lower court against Kinoti Imanyara(Respondent) seeking damages for fatal injuries suffered by his brother Samuel Kiogora (Deceased) who was on 13. 07. 2014 riding an ox-cart along Isiolo-Subuiga Road when he was knocked down by Respondent’s motor vehicle KBB 081X as a result of which he suffered fatal injuries.

2. The Defendant/Respondent in his statement of Defence denied the claim and blamed deceased for driving an ox-cart at night without reflectors thereby causing the accident.

3. By a judgment dated 15th June, 2021, the learned trial magistrate found both the deceased and the Respondent liable at 50% each and awarded the Appellant damages in the sum of KES. 110,000/- less 50% contributory negligence.

The Appeal 4. Appellant being dissatisfied with the lower court’s decision preferred this appeal and on 14. 07. 2021 filed the Memorandum of Appeal of same date which sets grounds of appeal mainly that:1. The Learned Trial Magistrate erred by apportioning lability at 50% as against the deceased2. The Learned Trial Magistrate erred by failing to grant an award for loss of dependency yet the suit was filed for the benefit of deceased’s children F.K and M.K The Learned Trial Magistrate erred by

Analysis and Determination 5. This being the first appellate court, its duty is to re-evaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.

6. I have considered the entire record of appeal and considered the submissions of counsels for both parties. I note that the appeal revolves around the question of both liability and quantum.

Liability 7. PW1 who is the Appellant herein and PW2 Gituma Gitonga David were not at the scene of the accident and did not know how it occurred. PW3 CPL Nelson Kamana was similarly not at the scene of the accident. He however tendered a police abstract which confirmed collision between Respondent’s motor vehicle and an ox-cart that deceased was riding on on 13th July, 2014 as a result of which deceased died.

8. Respondent confirmed there was a collision between his motor vehicle and the ox-cart that deceased was riding on on the material date at around 08. 00 pm. He stated that he saw the cart at close range since it did not have reflectors and that his effort to swerve failed because there was an oncoming motor vehicle.

9. After considering the evidence on record, the trial magistrate found as a fact that the collision between Respondent’s motor vehicle and the ox-cart that deceased was riding on was not disputed. The trial magistrate also found as a fact that the ox-cart that deceased was riding on did not have reflectors.

10. From the totality of the evidence before the trial court, I find as did the trial court that deceased failed to ensure that the ox-cart he was riding at night had reflectors to warn other road users of its presence on the road. The finding by the trial court apportioning liability at 50:50% was in the circumstances warranted.

Quantum 11. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

12. The trial court rightly appreciated that Section 4(1) of the Fatal Accident Actdefines a dependent as wife, husband, parent and child of the deceased. As much as the Appellant pleaded that deceased left behind two children, he did not tender any supporting evidence thereof and I therefore find that the learned trial magistrate correctly held that dependency had not been proved.

13. Accordingly, I find that this appeal has no merit. The decision of the trial court is upheld and the appeal dismissed with costs to the Respondent.

DATED AT MERU THIS 06 TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Mr. Kaburu for Mwirigi Kaburu & Co. AdvocatesFor Respondents - Mr. Kirimi for Mithega & Kariuki Advocates