[2022] KEHC 17175 (KLR)

Oyoo & another v Lasi & another (Suing as the Legal Representatives of the Estate of Julius Nyoki Lasi - Deceased) (Civil Appeal 48 of 2020) [2022] KEHC 17175 (KLR) (Civ) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17175 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 48 of 2020

DO Chepkwony, J

November 3, 2022

Between

Duncan Oyoo

1st Appellant

Multiple Hauliers (EA) Limited

2nd Appellant

and

Patrick Mwele Lasi

1st Respondent

Angelina Mwikali Mwaniki

2nd Respondent

Suing as the Legal Representatives of the Estate of Julius Nyoki Lasi - Deceased

(An appeal against the judgment of Hon PN Gesora (Mr) Chief Magistrate delivered on March 14, 2019 in CMCC No 4974 of 2016. )

Judgment

1. Before this court for determination, is an appeal vide an amended memorandum of appeal dated January 28, 2020 against the judgment of Hon PN Gesora (Mr) Chief Magistrate delivered on March 14, 2019 in CMCC No 4974 of 2016 on the grounds that the learned trial magistrate erred in law and in fact in;a)Failing to hold that the suit had been filed out of time and in failing to dismiss the same;b)Assessing liability at 100% as against the 1st appellant in the circumstances of the subject accident;c)That the learned magistrate’s award of Kshs 1,068,660/= to the respondents by way of general damages is so excessive in the circumstances as to amount to an erroneous estimate of the damages payable to the respondents.The appellant prays for orders that;a)The judgment of the learned trial magistrate dated March 14, 2019 be set aside for failing to make a finding that the suit as against the appellants was statute barred;b)In the alternative, judgment of the learned trial magistrate dated March 14, 2019 assessing liability at 100% against the 1st appellant herein be set aside and substituted thereof with an order apportioning liability as between the deceased and the 1st appellant as would be appropriate in the circumstances;c)The judgment of the learned trial magistrate dated March 14, 2019 awarding the respondent a sum of Kshs 1,068,660/= in general damages be set aside and this honorable court do assess the reasonable amount payable to the respondents;d)The costs of this appeal be awarded to the appellants.

2. Vide a further amended plaint dated November 28, 2016, the respondents sued the appellants for special and general damages plus costs of the suit and interest for an alleged accident that occurred on December 11, 2012 along Mombasa Road near Imara Daima that caused the death of one Julius Nzyoki Lasi.

3. The appellants opposed the suit and it went to full trial. After hearing both parties, the learned trial magistrate found the appellants 100% liable and awarded the respondents a total sum of Kshs 1,068,660.

4. The appellants were dissatisfied with this finding hence this appeal.

5. This court on February 28, 2022 directed parties to canvass the appeal by way of written submissions. The appellants filed their submissions on April 21, 2022 while the respondents filed theirs on June 13, 2022.

6. As a first appellate court, I am guided by the decision in the case of Selle v Associated Motor Boat Co Ltd [1968]EA 123, which requires that in an appeal, the court re-examine and analyse the evidence that was adduced before the trial court and come up with its own or independent decision.

7. I have read through the original proceedings before the trial court, the submissions by both parties in considering the appeal and the ground raised therein. I have also considered the cited statute and case law and find the issues for determination are:-a)Was the suit statute barred at the time of joining the 1st and 3rd defendants to the suit?b)To what extent are the appellants liable

Was the Suit Statute Barred at the time of joining the 1st and 3rd Defendants to the Suit? 8. The accident in question occurred on December 11, 2012. The respondents sought leave to file the suit against one, Shanaz Bano Darr who was the then registered owner of the suit motor vehicle according to the motor vehicle copy of records and which leave was granted on May 25, 2016. Upon filing the suit, they later noticed that the suit motor vehicle had long been sold to the 3rd defendant and was being driven by the 1st defendant at the time of the accident. Consequently, the respondents amended the plaint to include the two parties. It is the appellants’ argument that the respondents should have sought leave afresh to include the 1st and 3rd defendants in the suit. On the other hand, it is the respondents’ argument that at the time of the amendments, there was already a valid suit by virtue of leave granted by the trial court to file suit against the 2nd defendant.

9. It is worthy of note that the appellants raised a similar issue at the trial court and the same was dismissed vide a ruling of February 21, 2018. No appeal was filed against the said ruling. In my view, the appellants are tactfully seeking to appeal against the said ruling tactfully out of time. Nevertheless, I find no error in the trial court’s finding that there was a valid suit at the time of the amendments. In the circumstances, the respondents needed not to seek a fresh leave to amend their plaint.

To What Extent are the Appellants Liable? 10. On the question of liability, the trial court found the appellants 100% liable. The appellants proposes a 50%:50% apportionment. On the other hand, the respondents maintains that the trial court’s apportionment of liability at 100% against the appellants was fair in the circumstances. PW3, the eye witness in the case testified that he saw the motor vehicle that appeared as if it had lost directions and it went on to hit the deceased. On cross examination, he confirmed that the deceased was hit at the rear lane. In his statement dated January 25, 2017 he stated that the deceased was hit just after he was about to finish crossing the road hence throwing him off the road. This evidence intimated that the deceased was not fully out of the road which is explained by the fact that he was hit by the front side of the road.

11. Owing to this and the fact that the deceased crossed the road at a place not designated for crossing, I agree with the appellants that there was some contributory negligence on the part of the deceased. I hence proceed to hold the appellants 90% liable and the deceased 10% contributory.

12. On the issue of quantum, in their written submissions, the appellants have conceded to the trial court’s award, hence the same is not in dispute/contention.

13. In the upshot, the appeal only succeeds to the extend of a reduction of liability by 10%. The rest of the grounds have failed.

14. Judgment is therefore entered against the appellants for Kshs 961,794/= being;Pain and suffering....................................Kshs 50,000Loss of expectation of life.........................Kshs 150,000Loss of dependency...................................Kshs 823,660Special damages........................................Kshs 45,000Total..........................................................Kshs 1,068,660Less 10% (Kshs 106,866) ............Kshs 961,794

15. Costs of the appeal to the respondents.It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 3RDDAY OF NOVEMBER, 2022. DO CHEPKWONYJUDGEIn the presence of:Mr Wanyama counsel for respondents.No appearance for and by the appellants.Court Assistant - Simon