[2022] KEHC 1501 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL APPEAL NO. E005 OF 2021

BETWEEN

SUKARI INDUSTRIES LTD.................................................................................................................APPELLANT

AND

CHRISTINE CHEROP & HERINE ATIENO ONGOGE

[suing as legal representatives of the estate of JOHNSON NYAUKE OPIYO-deceased]...............RESPONDENTS

(Being an Appeal from the judgment in Homa Bay Chief Magistrate’s CMCC No. 84 of 2017 by Hon. R.B.N Maloba –Principal Magistrate).

JUDGMENT

1. The appellant herein was the defendant in Homa Bay Chief Magistrate’s CMCC No. 84 of 2017. This was a claim that arose from a road traffic accident involving motor vehicle registration number KCA 802J and a tractor registration number KCB 805N/ZE 1805. The deceased who was driving motor vehicle registration number KCA 802J sustained fatal injuries. The learned trial magistrate delivered judgment dated 17th December, 2020 and apportioned liability at 50:50. She gave the respondents an award of Kshs.10, 000,000. 00 after factoring in contributory negligence.

2. The appellant was aggrieved by the said judgment and filed this appeal. The firm was represented by Okongó Wandago & Company Advocates. The following grounds of appeal were raised:

a) The learned trial magistrate erred in law when she presided over a general damages claim whose monetary value was kshs.25, 461,840/-, which is an amount which well exceeded her pecuniary jurisdiction, and which, even after apportionment of liability, amounted to kshs.12, 730,920/-, and could only further err when she failed to down her tools as she clearly did not have jurisdiction to preside over the matter.

b) The learned trial magistrate erred in finding that the respondents had proved their case against the appellant on liability and in finding and holding that the appellant was 50% liable for the occurrence of the accident, when the evidence on record could not support such a finding, and as it was clear that it was the deceased who had caused the accident and thus was the author of his own misfortune.

c) That the learned trial magistrate erred in failing to find and to hold that the deceased had lost control of the motor vehicle KCA 802J, which he was driving, and rammed on to the motor vehicle KCB 804N/ZE 1805 and landed over 100m away from the point of impact which is a clear manifestation of over speeding, as the point of impact was on the left side, on the appellants vehicles correct path and lane.

d) The learned trial magistrate erred in fact and in law when he largely ignored the evidence of DW1, the appellant’s witness, who testified that deceased was to blame for the occurrence of the said accident, and more so when it was clear that the point of impact was shown to have been on the appellant’s motor vehicle’s correct lane.

e) The learned trial magistrate awarded to the respondents damages under the various heads which were beyond her jurisdiction, excessive and inordinately high and were not supported by the pleadings and or evidence which the respondents led at the trial.

f) The trial magistrate in assessing and awarding the sun of kshs.10, 000,000/- to the respondent, which amount was plucked from the air, and guided by whim and caprice and failed to take into account a relevant fact and circumstance that only a fair compensation both to the appellant and to the respondent could be awarded, and that what she awarded went well beyond event the statutory limit of insurers and the scope of compensation as specified in the statute.

g) The trial magistrate erred in law when she failed to determine and to apportion to each respective beneficiary, the respective shares entitled to a share of the judgment as had been pleaded in the plaint.

3. The appeal was opposed by the respondent through the firm of Alwang’a & Company, Advocates. They later instructed the firm of Oduor Munyua & Gerald Attorneys at Law LLP to represent them. They urged for the dismissal of the appeal.

4. 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.

5. The learned trial magistrate was confronted by two versions were two versions on which driver to blame for the accident that claimed the life of the deceased. The Court of Appeal in Hussein Omar Farah v Lento Agencies [2006]stated:

In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame… The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.

6. In the circumstances of this case and the evidence on record, I find no reason to interfere with her finding on liability.

7. When parties submit to the jurisdiction of a court, they would not expect general damages to be more than that court’s pecuniary jurisdiction. The appellant’s argument is self-defeating on the issue of jurisdiction. It cannot be argued in one breath that the damages of Kshs.10, 000,000. 00 are excessive and in the other argue that the court lacked jurisdiction for damages amounted to Kshs. 25 million. The appeal cannot turn on this ground.

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 349at 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. Before the trial magistrate arrived at the figure of Kshs. 10 million, she used the net salary as indicated in the deceased January 2017. This was Kshs.212 182. 00. She adopted a multiplier of 15years. The deceased died at the age of 43 years. The total figure was adding up to Kshs. 12,730,920. 00. The learned trial magistrate said she was going to cap the award at Kshs. 10 million which is her limit of pecuniary jurisdiction. The figure was not plucked from the air as has been submitted. I have no basis to interfere with the same.

10. The upshot of the foregoing analysis of the evidence on record is that the appeal must be dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 17TH DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE