[2018] KEHC 3684 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL APPEAL NO.14 OF 2017

BETWEEN

SUKARI INDUSTRIES LIMITED...........APPELLANT

VERSUS

FREDRICK OLUOCH ...........................RESPONDENT

(An appeal from the Judgment and decree of the senior Principal Magistrate’s Court, Ndhiwa in SRMCC No.32 of 2014 delivered on the 05/10/2016 – HON. MARY A. ACHIENG, SRM)

JUDGMENT

1. This appeal is against the decision of the Senior Resident Magistrate at Ndhiwa in SRMCC No.32 of 2014, in which the appellant, SUKARI INDUSTRIES LIMITED, was sued by the respondent, FREDRICK OLUOCH, for general damages arising from a road accident which occurred on or about the 25th July 2014, along Uriri-Riat-Murram road at Riat Bridge area, involving the appellant’s tractor Registration No. KTCB 2204 New Holland and the respondent as a pedestrian.

2. It was pleaded that the said tractor was on the material date driven by the appellant’s servant/agent, driver and/or employee in a manner which was careless and reckless such that it lost control, veered off its lane and knocked down the respondent causing him serious bodily injuries and unable to earn an income of Kshs.500/= per day from his business. He therefore prayed for general damages and costs of the suit against the appellant.

3. In its statement of defence, the appellant denied all allegations made against itself by the respondent and contended that if the accident occurred as alleged, then it was solely occasioned and/or contributed to by the respondent’s negligence.

The appellant therefore prayed for the dismissal of the suit with costs.

4. After hearing the case, the trial court apportioned liability at the ratio of 10%:90% in favour of the respondent and proceeded to award him the sum of Kshs.700,000/= general damages for pain and suffering less 10% contributory negligence i.e. Kshs.630,000/=.

The appellant was aggrieved by the decision of the court and presented this appeal on the basis of the grounds in the memorandum of appeal dated 1st March 2017.

5. The appeal proceeded by way of written submissions and in that regard, the appellant filed and relied on the supplementary submissions dated 7th September 2018 to replace the earlier submissions dated 8th June 2018.

The firm of L.G. MENEZES & COMPANY ADVOCATES appeared for the appellant.

6. The respondent filed and relied on his written submissions dated 27th July 2018. He was represented by the firm of KUKE & COMPANY ADVOCATES, in opposing the appeal and urging this court to dismiss it with costs. Indeed, this court has the necessary power to allow or dismiss an appeal but only upon giving due consideration to the facts and evidence presented by both sides.

7. This being a first appeal, the duty of this court was to re-consider the evidence adduced at the trial and draw its own conclusions bearing in mind that the trial court had the advantage of hearing and seeing the witnesses (see , SELLE –VS- ASSOCIATED MOTOR BOAT COMPANY (1968) E.A 123. )

In that regard, the evidence adduced by the respondent (PW1) and that of the appellant’s witness, ALLOYS OCHIENG ONYANGO (PW1) in Civil Case No.30 of 2015) was given due consideration by this court and on the issue of liability, it is this court’s opinion that the factual findings made by the trial court on the occurrence of the accident do not call for any interference.

8. It was established without substantial dispute that the respondent was walking on a road bridge when he was knockeddown and injured by a tractor belonging to the appellant which had gone out of control and swerved towards the respondent’s side on the bridge.

The apportionment of liability by the trial court at 10% against the respondent was proper. He disregarded his own safety by walking on a road in the dark. However, he had no role to play in the control of the tractor nor its mechanical condition.

9. Indeed, the greatest responsibility for the accident was borne by the appellant whose degree of blame was rightly placed by the trial court at 90%.

For all the foregoing reasons, grounds one, three and six of the appeal are hereby overruled.

On quantum of damages, the applicable grounds are grounds two, four and five. However, for the purposes of this appeal the most applicable is ground five in which the appellant complains that the trial court erred in making an award for damages which was soinordinately high given the existing circumstances.

10. The appellant had proposed a sum of Kshs.400,000 general damages for pain and suffering while the respondent had proposed a sum of Kshs.3 million. Both sides based their proposals on the authorities cited by them respectively.

The trial court considered the evidence and the parties’ submissions and awarded Kshs.700,000/= general damages.

11. The medical report by DR. OKOMBO, dated 30th May 2015, indicated that the respondent suffered multiple injuries including fractures of the right ilium and bilateral superior and inferior rami as well as fractures of the right femur bone. These resulted in him walking with a gait and became in need of further treatment.

It cannot be gainsaid that the injuries were of a serious nature and a great source of pain and suffering and loss of amenities. Therefore, the award of Kshs.700,000/= made by the trial court was deservingand quite reasonable.

Grounds two, four and five of the appeal must also be overruled.

12. In sum, the appeal is devoid of merit and is hereby dismissed in its entirety.

Ordered accordingly.

J.R. KARANJAH

JUDGE

04. 10. 2018

[Delivered and signed this 4thday of October, 2018]