[2023] KEHC 2120 (KLR)

Kasila & 2 others v Bolla & another (Civil Appeal E009 of 2022) [2023] KEHC 2120 (KLR) (22 March 2023) (Judgment)

Neutral citation: [2023] KEHC 2120 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E009 of 2022

KW Kiarie, J

March 22, 2023

Between

Godfrey Binaisa Kasila

1st Appellant

Jennifer Cynthia Achieng Omullo

2nd Appellant

CFC Life Assurance Ltd

3rd Appellant

and

Roselyne Anyango Bolla

1st Respondent

Ruth Anyango Obongo [Suing as the Legal Representatives of the Estate of David Bolo- Deceased]

2nd Respondent

(Being an Appeal from the judgment in Oyugis Senior Principal Magistrate’s SPMCC No. 160 of 2019 by Hon. B. Omwansa–Senior Principal Magistrate)

Judgment

1. The appellants herein, were defendants in Oyugis Senior Principal Magistrate’s SPMCC No. 160 of 2019. This was a claim that arose from a road traffic accident where the deceased was fatally injured. The accident involved motor vehicles registration number KCQ 009F and motor cycle registration number KCMK 347F on which the deceased was a pillion passenger.

2. The learned trial magistrate delivered judgment dated 2nd February, 2022 and held the appellants 100% liable. He made an award of Kshs.950, 000. 00 in general damages and special damages Kshs. 68,000. 00 in favour of the respondents.

3. The appellants were aggrieved by the said judgment and filed this appeal through the firm of Kibichiy & Company Advocates. The following grounds of appeal were raised:a.The learned trial magistrate erred by arriving at a finding on liability, which was not supported by evidence.b.The learned trial magistrate erred in law and fact in basing findings on irrelevant matters.c.The respondent’s case was not proved on balance of probability as is required by law.d.The trial magistrate should have found that there was no basis on which the appellant could be blamed for the incident alleged and injuries sustained.e.The learned trial magistrate’s assessment of compensation was inappropriate and irregular vis-à-vis the circumstances of the case.f.The learned trial magistrate erred on all points of fact and law in as far as both liability and assessment of quantum is concerned.g.That the quantum awarded by the trial magistrate was inordinately too high in the light of the circumstances.

4. The appeal was opposed by the respondent through the firm of Nyatundo & Company Advocates. It was contended that liability was properly arrived at and that the award was not high in the circumstances of the case.

5. This court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd.[1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

6. In the instant case, it was only the widow who testified. I however note that there was a sister file Oyugis Senior Principal Magistrate’s SPMCC No. 155 of 2019). The case was given rise by the same accident. In that case PC Kiplangat Cheboi (PW1) testified that following the road traffic accident of 30th July 2019 involving motor vehicles registration number KCQ 009F and motor cycle registration number KCMK 347F, the driver of the motor vehicle was charged for the offence causing death by dangerous driving. He was convicted and fined Kshs.20, 000. 00. He went on to testify that the driver of the motor vehicle was charge for he failed to keep a safe distance.

7. When the respondent closed her case, the appellants opted to close without calling any evidence. The learned trial magistrate had only the explanation by the respondent of how the accident occurred. He was therefore justified from the evidence on record to find the appellants 100% liable.

8. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349 at page 356 Law JA stated:…an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low.

9. The appellant complained that the award of kshs.950,000/- general damages was inordinately high.

10. At the hearing, nothing was produced to prove the claim on earnings. In Albert Odawa vs. Gichimu Githenji; Nakuru HCCA No.15 of 2003 (2007), eKLR Justice Ringera expressed himself as follows;The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.The learned trial magistrate’s global sum approach was the appropriate one in the circumstances of the instant case.

11. In their submissions, the appellants had proposed a global award of Kshs. 300,000. The case they relied on involved a man in his retirement whereas in the instant case the deceased at the time of death was 67 years old. The respondents had proposed an award of Kshs.1,000,000. 00

12. In the case of John Wamae & 2 others v Jane Kituku Nziva & another[2017] eKLR a global award Kshs. 400,000. 00 was given to the estate of the deceased aged 61 years at the time of the death. I am persuaded to interfere with the award of the learned trial magistrate. I set aside the award of kshs.950, 000 and substitute it with an award of Kshs.400, 000. 00.

13. The appeal therefore partially succeed with half costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 22ND DAY OF MARCH, 2023KIARIE WAWERU KIARIEJUDGE