[2008] KEHC 3453 (KLR)
The court found that the trial magistrate properly evaluated the evidence and correctly concluded that the appellant was responsible for causing the accident. The evidence showed that the appellant's vehicle struck the respondent's lorry, and the physical damage supported the respondent's version of events. The...
Source-derived case information.
- Citation
- [2008] KEHC 3453 (KLR)
- Parties
- Appellant: Joseph Muturi Kinuthia; Respondent: Mt. Kenya Petroleum Distributors Ltd
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 5 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Road Traffic Accidents, Negligence, Contributory Negligence, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muturi Kinuthia
Appellant
Mt. Kenya Petroleum Distributors Ltd
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in finding the appellant liable for the accident.
- 2 Whether the evidence on record supported the finding of negligence against the appellant.
- 3 Whether the assessment of damages by the trial court was proper and justified.
Ratio Decidendi
The court found that the trial magistrate properly evaluated the evidence and correctly concluded that the appellant was responsible for causing the accident. The evidence showed that the appellant's vehicle struck the respondent's lorry, and the physical damage supported the respondent's version of events. The trial magistrate was entitled to rely on the statutory police abstract, which was produced without objection. The court also held that contributory negligence was not established, as it must be specifically proved and was not automatic merely because two vehicles were involved. The assessment of damages by the trial magistrate was found to be reasonable and based on correct legal...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 5 of 2005
JOSEPH MUTURI KINUTHIA………………......………….APPELLANT
VERSUS
MT. KENYA PETROLEUM DISTRIBUTORS LTD……..RESPONDENT
JUDGMENT
This appeal arises from for the decision of Hon. Senior Principal Magistrate in CMC Case No. 262 of 2003 at Embu.
The grounds of appeal are listed in the memorandum of Appeal dated at Nairobi on 17th day of January 2005. At trial the Appellant gave evidence himself and called no witnesses. The Respondent also gave evidence and called one witness who was not present at the time of accident. The record shows that there were other cases filed arising out of the accident and the trial Magistrate was able to consider those proceedings.
Firstly, on ground one and two there is no recorded evidence that the trial Magistrate conducted the trial as alleged. This court takes consideration of what is on record only. It is not possible to see unrecorded matters. These grounds of appeal are without merit. Regarding grounds 3 and 4 of Appeal the Trial Magistrate considered evidence as offered by the witnesses. Both parties said how the road was and there was a bridge. Both parties described the road and the two bends which did not interfere with visibility. The Plaintiff said his matatu was hit by lorry which swerved and swayed towards plaintiff’s vehicle and hit the plaintiff on the front. The other party said he saw the two small bends and the slope, there was on coming donkey cart and also a oncoming matatu speeding. Matatu hit lorry on rear tyres. The trial Magistrate considered this evidence and found that matatu did not collide head on with the lorry. The plaintiff said he had stopped. It is not clear for what reason. But it is clear that if the Respondent’s vehicle had its right rear tyres ripped and that the matatu was hit on front side it is the matatu which hit the lorry and it is to be said that the plaintiff was pressed to admit that there was a donkey cart involved. He only admitted on cross examination. Regarding ground 5 of the police abstract was produced without any objection it is a statutory document and can be relied on. What was recorded therein was evidence which was not challenged by the plaintiff. This ground is also found to be without merit.
On ground number six it is not automatic to find contributory negligence. It has to be proved. The fact that two vehicles were involved in an accident it is not for both must have been negligent. In this case the Trial Magistrate correctly found that the plaintiff is the one who caused accident. She believed the evidence of the Respondent. Concerning grounds 7,8, 9, and 10. It was the opinion formed by the Trial Magistrate on evidence on record that the Appellant was not truthful see the evidence of the donkey cart, the Appellant did not displace that he was not trying to pass between lorry and the cart, the fact is that Respondent was not blamed in other suits. The impact to cause the tyres of the lorry to be ripped indicates such a force that would only have been caused by excessive speed. Regarding grounds 11, 12, 13, 14 the Trial Magistrates found the other two cases were decided by other Trial Magistrate. Those Magistrates had expressed their opinions which were not binding on the Trial Magistrate here. However the Trial Magistrate was entitled not to ignore those opinions. Regarding ground 14 the trial Magistrate made no contradictory finding but following the evidence before her.
On issue of assessment of quantum of damages an appellate court can only interfere on the assessment on the ground the assessment is too high or too low that it would amount to injustice.
In this case. I find the proposed assessment to be reasonable I would not interfere. I also find the trial Magistrate applied the correct principles in dealing with this case and failure to give notice and failure to deliver Judgment within 45 days does not prejudice the Appellant’s case and is not the law of the land but administrative rule. For the above reasons I find no reason to interfere with the Judgment of the learned Trial Magistrate. The appeal is dismissed with costs.
Dated this 16th day of January, 2008.
J. N. KHAMINWA
JUDGE
16/1/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kariuki HB for Mr. Njagi for Appellant.
Read in open court.
J. N. KHAMINWA
JUDGE