[2023] KEHC 24588 (KLR)

Signon Group Limited & another v Mutua (Civil Appeal E510 of 2021) [2023] KEHC 24588 (KLR) (Civ) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24588 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E510 of 2021

AN Ongeri, J

November 3, 2023

Between

Signon Group Limited

1st Appellant

Linus Onyonka

2nd Appellant

and

Joseph Muthama Mutua

Respondent

(Being an appeal from the ruling and order of Hon. D. W. Mburu (SPM) in Milimani CMCC No. E4588 of 2019 delivered on 30/7/2021)

Judgment

1. The respondent in this appeal, Joseph Muthama Mutua sued the two appellants Signon Group Ltd and Linus Onyonka seeking general damages, special damages plus costs and interest for personal injuries the respondent sustained on 23/1/2019 at 8. 00am along Mombasa Road involving motor vehicle registration no. KBF 637V belonging to the 1st appellant and KCJ 323X in which the respondent was travelling.

2. The trial court found that both motor vehicle KBF 637V and motor vehicle registration no. KCJ 323X in which the respondent was travelling were to blame for the accident and apportioned liability at 40:60% in favour of the respondent against the appellants.

3. On quantum of damages, the trial court awarded as follows;General damages for pain & suffering 200,000Special damage 8,100Total 208,100Less 40% contributory negligence 120,000

4. The appellants have filed this appeal on the following grounds;That the Learned Trial Magistrate erred in law and in fact by:a.Making an assumption that the attempt by the 1st Appellant’s motor vehicle to swerve caused the matatu that the Respondent was traveling in to ram into the rear of a third party motor vehicle without any basis in law and fact;b.Apportioning liability at 60% against the Appellants in total disregard of the evidence adduced by the Appellant and the Appellant’s submissions;c.Not finding that the Respondent had failed to attribute and did not prove any of the pleaded particulars of negligence on the part of the Appellants in the Plaint; andd.The decision on liability is against the weight of evidence adduced by the parties, which decision caused injustice to the Appellant and ought to be reversed.

5. The Appellants prayed that this honourable Court allow the appeal and set aside the decision of the trial Magistrate, the suit against the Appellants be dismissed with costs, and the cost of the Appeal be awarded to the Appellants.

6. The parties filed written submissions as follows:

7. The Appellant submitted that the Respondent’s pleadings were not supported by the evidence adduced before the trial court. The Police officer called to testify lacked knowledge of the Respondent’s alleged accident. The Respondent’s witnesses had testified that there had not been any contact between the Appellant’s motor vehicle and the other motor vehicles involved in the accident. There had been no visible accident defects on the Appellant’s motor vehicle. The trial court took into account issues that had not been pleaded or proved. The Court relied on speculation in apportioning liability. The respondents did not discharge their burden of proof. The Appellant urged the court to set aside the trial court’s decision and substitute it with a finding that Motor Vehicle KCJ 323X was entirely to blame for the accident.

8. The respondent submitted that the Appellant’s Motor Vehicle, Registration Number KBS 541H was the initiator of the events that led to the accident. It was blamed by both the Respondent and the investigating officer. The Appellant’s driver had failed to keep safe distance, and his swerving without indication had caused the accident.

9. The respondent submitted that he had proved his case on a balance of probabilities and urged the court to dismiss the appeal and uphold the trial Court’s decision.

10. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that the trial court had an opportunity to see the witnesses. These provisions were underscored in the matter of Peter M. Kariuki –vs- Attorney General [2014] eKLR where the court held inter alia as follows:-“We have also, as we are duty bound to do as a first appellate court [to] reconsider the evidence adduced before the trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence”

11. The issues for determination in this appeal are as follows;i.Whether the trial court was right in apportioning liability at 40:60% in favour of the respondentii.Whether the decision on liability was against the weight of evidence.

12. On the issue as to whether the trial court was right in apportioning liability at 40:60% I find that the appellant submitted that the driver of the 1st appellant swerved to avoid hitting a handcart and by swerving it caused the motor vehicle registration no. KCJ 323X to ram into the rear of a 3rd party motor vehicle.

13. The respondent who testified as PW 2 in the trial court said he was travelling in motor vehicle registration no. KCJ 323X when motor vehicle registration no. KBS 541H left its lane and moved to the lane of KCJ 323X.

14. PW 2 said motor vehicle registration no. KBS 541H hit the handcart and it also hit motor vehicle registration no. KCJ 323X.

15. PW 1 said motor vehicle registration KBS 541H was to blame for the accident. PW 1 said the motor vehicle in which the respondent was travelling in being KCJ 323X collided with motor vehicle registration no KBS 541H and KBF 637V.

16. I find that the trial court was right in apportioning liability at 40:60% against the appellants in favour of the respondent.

17. I find that the trial court properly evaluated the evidence and apportioned liability appropriately.

18. I find that the issue of quantum of damages was not contested.

19. I find no reason to interfere with the finding of the trial court on liability.

20. I dismiss the appeal with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. .................A. N. ONGERIJUDGEIn the presence of:……………………………. for the 1st Appellant……………………………. for the 2nd Appellant……………………………. for the Respondent