[2016] KECA 189 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL APPEAL NO. 65 OF 2011

PETER M. NYABINGE....................................................APPELLANT

VERSUS

SHAMILLA ANYANGO (Suing as administrator of the estate of

YACOB O. JUMA(Deceased).................................RESPONDENT

[Being an appeal from the judgment and decree of Honourable Ezra

Awino(Senior Principal Magistrate) Kisumu CMCC No. 201 of 2008

Shamilla Anyango vs. Peter M. Nyabinge delivered on 4th May 2011]

JUDGMENT

The Court below awarded the Respondent a sum of Kshs.1,738,000/= as damages under the Law Reform Act and the Fatal Accidents Act. Being aggrieved the appellant filed an appeal based on the following grounds that the trial magistrate misdirected himself in law and fact, that the trial magistrate misconceived the evidence both on liability and quantum; that the trial magistrate erred in holding there was proof of earnings of 19,600/= when none was availed, that the magistrate erred in awarding specials in the sum of 20,000/= when no evidence was led on the same; that the entire award was excessive and unjustified and that the trial magistrate erred in finding the Defendant liable to the extent of 100% when no proof existed whatsoever of ownership of the suit motor vehicle.

The Plaintiff had told the Court that she was the deceased's wife having wedded him on 17th August 1991 under Islamic and Sudur customary law. She then narrated how on 9th May 2005 she received a call from her husband's colleagues at Kisumu Polytechnic that he had died as he was travelling home on 8th May 2005. She went to the police station and saw a vehicle Registration Number KAN 717 green in colour which she was told belonged to Peter Maurice Nyabinge the Appellant and was given a police abstract.

She stated that they were blessed with four children aged 15, 13, 7 and 3 ½ years old and that her husband used to give her his entire salary. She told the Court that the person who informed her of the accident was one Onyango but he too had not witnessed the accident. She did however have information that her husband was a passenger in KAN 717W and that another vehicle a Canter Registration Number KAP 165J was also involved; She also stated that she was told that the motor vehicle KAN was being driven badly. She contended that her husband earned 12,000/= per month. In support of her case she produced a limited grant, a death certificate, a marriage certificate, a police abstract, certificates of birth in respect of the children and a letter from the chief dated 8th September 2008. Her only witness was PC Chei of Kisumu Police Station who told the Court that he had been sent by the Base Commander to produce a police abstract of an accident that occurred along the Kisumu – Ahero Road at about 6p.m. and which involved motor vehicle KAN 717N Toyota belonging to Peter Morris Nyabinge of Kisumu. As he spoke the matter was still under investigation though the investigating officer one Corporal Nyangau had since been transferred.

The appellant did not adduce any evidence in the case. He had however filed a statement of defence.

As an appellate court I am enjoined to consider the evidence afresh so as to arrive at my own conclusion. I must do so bearing in mind that an appellate court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence or the trial court is shown demonstrably to have acted on wrong principles in reaching the finding he did – see Selle & Another V. Associated Motor Boat Co. Ltd. [1968]EA 123.

I am also alive to the principle that “the assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower court judge acted on the wrong principles”.- see Mariga V. Musila [1984] KLR 251.

The Respondent in this case did not witness the accident and neither did the police officer who produced the police abstract in which it is recorded that an accident occurred. This case was therefore based on hearsay. The police abstract itself does not apportion blame. Indeed it states that the accident was still being investigated and paragraph 3 which would normally indicate the driver to be charged is crossed out. It is clear therefore that the only reason the Respondent sued the Appellant was the information she got that he was the owner of motor vehicle KAN 717W. She did not explain why she preferred to sue him and not the driver of motor vehicle KAP 165J which is also named in the police abstract as having been involved. Her allegation that the deceased was a passenger in motor vehicle KAN 717W is not supported by evidence. The police abstract itself does not state the vehicle he was in. Moreover as the Appellant had in the defence denied ownership of the motor vehicle and the issue having been raised during cross-examination this fact ought to have been proved by production of a copy of records. This was the decision in Superfoam Limited & Another V. Gladys Nchororo Mbero [2014]eKLRthat:-

“where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as incriminal cases. However, where it was challenged by evidence or in cross-examination, the Plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”.

The Respondent did not therefore prove albeit on a balance of probabilities that the appellant was the owner of this motor vehicle. This in addition to her not having proved that her husband was a passenger in the appellant's motor vehicle or even that the appellant was to blame for the accident. There can be no liability without fault and it is my finding that the trial magistrate's finding on liability was based on no evidence and was erroneous.

Even the assessment of damages was based on a wrong principle and on misapprehension of the facts. Whereas the Respondent claimed that her husband worked at the Kisumu Polytechnic she did not offer any proof first of all of such employment and secondly of his salary. She was to call a witness to produce the payslips which were marked for identification (MFIP7) but never did so. Her Advocate closed the case before the witness from Kisumu Polytechnic testified. The fact of employment and the earnings were therefore never proved and there was no basis for the multiplicand of 19,600/=. Moreover in her own words the Respondent had said her husband was earning 12,000/=.

The award was therefore not only excessive but also erroneous as liability was never proved in the first place.

Accordingly this appeal is allowed and the judgment and award of damages are set aside and the costs awarded to the appellant.

Signed, dated and delivered at Kisumu this 3rd day of November 2016

E. N. MAINA

JUDGE

In the presence of:-

N/A for the Appellant

Mr. Anyul for the Respondent

C/A: Serah Sidera

Respondent present