[2023] KEHC 27495 (KLR)

Third Engineering Bureau of China City Constructions Group Company Ltd v Otieno (Suing as a Legal Representative of the Estate of Rosemary Adhiambo Otieno - Deceased) & another (Civil Appeal E003 of 2023) [2023] KEHC 27495 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEHC 27495 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E003 of 2023

KW Kiarie, J

October 3, 2023

Between

The Third Engineering Bureau of China City Constructions Group Company Ltd

Appellant

and

Salome Akoth Otieno (Suing as a Legal Representative of the Estate of Rosemary Adhiambo Otieno - Deceased)

1st Respondent

Strategic Outcome Consultant Limited

2nd Respondent

(Being an Appeal from the judgment in Oyugis Senior Principal Magistrate’s PMCC No. 86 of 2020 by Hon. B.O Omwansa–Senior Principal Magistrate)

Judgment

1. The appellant herein, was the defendant in Oyugis Principal Magistrate’s PMCC No. 86 of 2020. This was a claim for general and special damages that arose from an incident of drowning at a site where the appellant is alleged to have excavated for construction materials and left the pit open. The deceased was a pedestrian who slipped and fell into the open pit filled with water where she drowned. The learned trial magistrate delivered a judgment dated 14th September 2022. He held the appellant and the third party 100% jointly and severally liable. An award of Kshs. 900,000 .00 in general damages was given in favour of the 1st respondent.

2. The appellant was aggrieved by the said judgment and filed this appeal. He was represented by the firm of O. M. Otieno & Company Advocates. The following grounds of appeal were raised:a.That the honorable court erred in law and when the same entered judgment in favour of the respondent as against the appellant whereas un-rebutted evidence and material were present demonstrating that the 2nd respondent (third party) was solely responsible.b.That the learned trial magistrate erred in holding the appellant 100% liable or at all [Sic].c.The learned trial magistrate erred in law when he awarded excessive general damages in the circumstances.d.That the learned trial magistrate misdirected himself in law by making an award of general damages which were not proved to the requisite standard in law, which award was equally excessive.e.That the learned trial magistrate misapprehended the principles applicable in the computation of damages thus occasioning a miscarriage of justice.f.That the learned trial magistrate erred in law and fact in failing to consider the appellant’s submissions on and authorities in support thereof.g.That learned magistrate misapprehended the principles applicable in determining liability where an interlocutory judgment was endorsed against a third party.h.That the learned trial magistrate erred in failing to apportion liability at 100% against the third party as required by law.i.That the learned trial magistrate misdirected himself in law by questioning the publicity of the contract between the appellant and the third party which question is erroneous and/or irrelevant.j.That the learned trial magistrate erred in law and in fact by failing to properly evaluate the evidence on record thus reaching an erroneous decision.k.The learned trial magistrate erred in law in failing to subject the costs of the suit to contribution.

3. The appeal was opposed by the 1st respondent through the firm of Ochillo & Company Advocates. It was contended that it lacked merits.

4. The second respondent did not file any response or submissions.

5. 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.

6. After excavation for road construction materials, an open pit that collected water was left. The appellant and the 2nd respondent did not refill the pit after they were through with the excavation for materials. Stormwater filled the pit to an extent that its edge was not noticeable. The deceased herein and her sister while walking along the road slipped into the trench. It is apparent one went to assist the other who had slipped into the pit. Both unfortunately drowned.

7. Though it has been contended that the trial court erred in failing to hold the 2nd respondent solely liable, there was no evidence that was adduced to bolster this argument. In the circumstances of this case where the appellant and the 2nd respondent worked on the said trench one as a subcontractor of the other, and without evidence on the details of their contract, the learned cannot be faulted on the finding that they were both jointly and severally liable.

8. In Black’s Law Dictionary 10th Edition the concept of joint and several liability is defined as follows:liability that may be apportioned with among two or more parties or to only one or a few select members of the group at the adversary’s discretion. Thus, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity from non-paying parties.

9. In the case Republic v PS charge of Internal Security ex parte Joshua Mutua Paul [2013] eKLR, the court explained how the concept works as follows:Clearly, therefore where you have joint liability all the tortfeasors are and each one of them is liable to settle the full liability, each tortfeasor is only liable to settle the sum due to the tune of his liability. Where, however, the liability is joint and/or several, the Plaintiff has the option of either directing his claim against any one of the tortfeasors or making his claim against each one of the tortfeasors according to their individual liability... Either he cannot recover more than the total sum decreed. However, the Defendants are entitled to reimbursement from the co-defendants in the event that the Plaintiff only opts to recover from one of them.

10. The appellant has argued that the award in general damages was inordinately high. 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 349 on 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.

11. This court has been implored to vary the award by setting aside the trial court’s award and substituting it thereof with an award of either Kshs. 700,000 or Kshs. 800,000. No case was cited in support of this proposal. In my view, I have no reason to disturb the award by the learned trial magistrate.

12. Consequently, I find that the appeal lacks merit, and I dismiss it with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 3RDDAY OF OCTOBER 2023KIARIE WAWERU KIARIEJUDGE