ABDULKARIM HERSI VS FLORENCE ODECHE & MIRIAM NALIAKA JOSHUA ABDULKARIM HERSI VS FLORENCE ODECHE & MIRIAM NALIAKA JOSHUA

INTRODUCTION

They appeal arises out of a decision of the Maseno Chief Magistrate in SPMCC NO.E010 of 2023 delivered on 17^th January 2024 .
The appellant has appealed against both liability and quantum.
The memorandum of appeal raises the following grounds:-
The learned Trial Magistrate erred in fact and in law in failing to appreciate the evidence of the defendant thereby finding the defendant 100% liable, leading to miscarriage of justice.
The learned trial Magistrate greatly misdirected herself by ignoring and treating the submissions of the defendant on liability superficially thereby arriving at the wrong conclusion on liability.
The quantum on general damages for loss of dependency is exaggerated, inordinately high, erroneous, oppressive and punitive and amounts to miscarriage of justice.
The learned trial magistrate ignored the Appellant's submissions, paid lip service and made no reference to all the precedent on general damages cited. before him, thus coming to a wrong decision on the quantum.
The learned trial Magistrate erred in fact and in law in failing to appreciate the principles governing the award of damages, namely that like cases attract similar awards, and ignoring completely the Appellant's submissions thereon.
The learned magistrate erred in fact and in law in failing to consider the defendant's submissions on quantum.
The learned trial magistrate erred in awarding the sum of Kshs. 2,500,000 by way of general damages under the head loss of dependency to the respondents.
The learned magistrate considered extraneous circumstance to arrive at the erred finding in law and in fact.
The Honorable Magistrate's decision is plainly wrong and against the weight of the evidence.
The issues that this code is called upon to resolve are;-
Who was to blame for the accident
Whether the general damages of Kenya shillings 2,500,000 awarded for loss of dependency were justifiable in the circumstances

APPELLANT’S CASE

The appellant contends that the respondent did not discharge the burden of proof despite calling witnesses. According to the appellant the evidence led by the respondent did not meet the requirements of the law under Sections 107 and 108 of the Evidence Act.
The appellant submitted that taking into account the totality of the evidence apportionment of liability at 50:50% would have been appropriate and fair between the parties.
The appellant further submitted that a police abstract is not sufficient proof of liability on the part of a driver.
The appellant also submitted that the respondent did not produce any insurance cover or license to show that he was licensed to be on the road.
On quantum the appellant took the view that they learned Honorable magistrate in awarding damages for loss of dependency awarded an exorbitantly high figure. According to the appellant damages are not meant to enrich an aggrieved party but to compensate for the injury sustained.
The appellant submitted that the assessment of damages is a discretionary matter and if the discretion was properly exercised by the trial court the same ought to be respected by the appellate court.
The appellant cited the case of Butt Vs. Khan [1981] KLR 349 where Law, JA stated as follows;-

"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 at a figure which was either inordinately high or low."

The appellant submitted that this court should re-evaluate the evidence and award the respondent the sum of Kenyan shillings 600,000 which in the appellants view would be reasonable compensation for loss of dependency.
In support of this argument that this court considers reviewing the damages downwards the appellant cited the case of CHEN WEMBO and 2 Others Vs. IKK and HMM (2017) Eklr where the court reduced the limpsum payment of Kshs. 1,680,080 .00 to Kshs. 600,000 where there was no evidence of the deceased’s prospects or even attended school.
The appellant also cited the case of M’RARAMA MINTHERIERI Vs. LUKE KIUMBE MURITHI(2015) eKLR When the coach awarded a global figure of Kenya Shillings 500,000.
On the basis of those submissions the appellant urged this court to allow their appeal.

RESPONDENT’S CASE

The respondent opposed this appeal and on the issue of liability it was argued that the learned honorable court did not err in holding the appellant 100% liable for the occurrence of the accident.
The respondent urged this court to consider the evidence of the eyewitness PW4 who testified that the driver approached at a very high speed ,hit a portal, lost control and veered of the road.
According to PW4 the victim of the accident was standing beside the road on the pedestrian path when he was ran over.
The appellant contends that the evidence of PW4 was corroborated by PW3 the investigating officer who confirmed that he visited the scene of the accident and found out that the accident occurred on the left side of the road.
According to the respondent the investigating officer was categorical that the driver of the motor vehicle was to blame for the accident.
Counsel for the respondent urged the court to consider that eyewitness account is direct evidence under Section 62 (2) of the Evidence Act and it cannot be whittled down by the fact that a sketch map was produced.
The respondent further submitted that since the investigating officer had testified the sketch plan evidence was by dint of that evidence adduced because the officer testified that he was the one who drew the sketch plan.
The respondent cited the case of Equator Distributors Vs. Joel Muriu [2018] eKLR where the court pronounced itself as follows on the value of a sketch plan:-

"On probative value to be given to a police sketch map, we are aware that a police sketch map for a road traffic accident is prepared after the event, it is not an eyewitness account. However, it carries some probative value. The sketch map is not binding on the trial court and it is for the trial court to establish facts from all the evidence on record. A police sketch map is just but an item of evidence to be considered."

The respondent urged this court to consider that the appellant did not call any evidence to controvert the evidence of the respondent’s witness thus the evidence of liability was unchallenged.
In support of that argument the respondents cited the case of Janet Kaphiphe Ouma & Another Vs. Marie Stopes International (kenya) Kisumu HCCC No.68 of 2007 Ali-Aroni, J, citing the decision in Edward Muriga through Stanley Muriga Vs. Nathaniel D. Schulter Civil Appeal No. 23 of 1997 said:

"In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations...Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence".

On quantum the respondents submitted that the appellant has urged the court to interfere with the decision of the lower court without providing a basis and or reasons why the amount should be reduced from Kenya shillings 2,500,000 to Kenya shillings 600,000.
According to the respondent they deceased at the time of death was aged 27 years and was survived by a wife, child, mother and father.
The respondent submitted that the lower court in reaching its decision considered the period those who survived the deceased would have depended on him were it not for the negligence of the appellant which cut short the life of the deceased. The respondent cited a case of Kigaragari Vs. Aya (1985) KLR 273 where the court of Appeal held:-

"In awarding damages for personal injury, the courts should consider that there is need to develop consistency in the awards and that the awards should be within the limits of decided cases and avoid the effect of making insurance cover and fees unaffordable for the public."

It is the consistency decreed by the Court of Appeal that this court was urged to consider. Further, reference was made to the case of County Government of Kitui & Another v Mutinda & another (Sued as the Administrators of the Estate of Samson Kyalo) (Civil Appeal E058 of 2021) [2023], the deceased was 29 years old at the time of his death and was engaged in boda boda business, the court awarded a global sum of Kshs 3,000,000 under Loss of dependency.

ANALYSIS AND DETERMINATION

The appellant’s appeal is an interesting one to say the least. The appellant has urged the court to find that evidence tendered by the respondent did not meet the evidential threshold of proof on a balance of probabilities. The appellant did not submit that test under Section 107 and 108 of the Evidence Act was not met.
However, in the same breadth the appellant has urged this court to consider apportioning liability at 50:50.
This court is left to wonder on what basis would the court proceed to apportion liability at 50:50 if at all the respondent did not prove his case.
It is the view of this court the appellant in this appeal does not have faith in his own submission that the respondent did not prove his case. His concession of 50% liability is proved that the case of the respondent of negligence was proved but all that the appellant is unhappy about is the degree of blame.
That being so , the court is enjoined to consider the evidence that was tendered before the lower court to determine whether there is any basis for the court to interfere with the lower court’s decision on liability.
The respondent called PW1 who was the deceased mother who testified that her son was aged 27 years at the time of his death and that he earned Kenyan shillings 2000 per day. She also testified that the deceased supported them with the money he earned as a boda boda rider.
The evidence of PW1 was corroborated by PW2 the wife of the deceased.
PW3 the investigating officer testified that accident occurred on the left side of the road and their one skid marks of swerving to the left side.
PW4 the eyewitness stated:-

“ The vehicle was from Kisumu direction going downhill towards Busia . I was on the right side. The trailer was on the left side of the road . I was opposite it .The injured was off the road on the left side. I blame the driver of the vehicle . I did not attend at the police station to record a statement.” He went on to state: “ On the material dates he was not driving a motorcycle.”

The appellant did not call any evidence thus the learned Honorable magistrate was left to consider the respondents evidence only.
It is clear from the evidence on record that the appellant’s driver was solely to blame for the accident. A statement of Edwin Otieno Luka PW4 dated 30/11/2022 reads:-

“ I saw a trailer registration number KDB 020/ ZG484 from Kisumu direction approach at a very high speed. It hit a pothole, lost control, veered off the road to the left side. The deceased who was standing beside the road on a pedestrian path on seeing the motor vehicle tried to run but the motor vehicle registration number KDB 020R/ ZG 4084 caught up with him and run over him. He sustained fatal injuries and was rushed to Masaba hospital”.

No doubt the deceased did not contribute to the occurrence of the accident in any way from the eyewitness account which was uncontroverted .Itis thus not understandable how a person who was injured in the circumstances narrated by PW3 could be blamed for the accident.
It is no wonder that the appellant has readily conceded liability to 50%. The evidence by the respondent’s witnesses does not in any manner attribute negligence on the deceased.
The deceased was doing about his business when through the negligent acts of the driver of motor vehicle KDB 020R/ ZG4084 cost the motor vehicle to run over him.
The appellant must therefore bear full responsibility and liability for the accident. I do therefore agree with the respondent submission that the learned Honorable magistrate decision should not be interfered with or the issue of liability. They appeale therefore fails in that respect.
Turning into the issue of quantum of damages for loss of dependency, this court recognizes that assessment of damages is a matter of exercise of judicial discretion.
For an appellate court to interfere , the appellant must satisfy the court that the lower court had grossly misdirected himself on the principles applicable in the assessment of damages or had failed to take into consideration relevant matters or had taken into account irrelevant matters in arriving at the impugned decision. See MBOGO VS. SHAH [1968] EA 93.
It is a burden that the appellant must discharge. It is not enough for an appellant to cite authorities where a lesser amount than that awarded by the lower court in the matter under consideration was made. The appellant must show the correlation of the authorities relied on with the case at hand.
The appellant in this case did not give any reasons why the figure of Kenyan shillings 2,500,000 is in his view inordinately high. He similarly did not lay a basis for the suggested figure of Kenyan shillings 600,000 .The figure is hanging in the air and this court cannot tell why it should be adopted as the appropriate figure damages for loss of dependency.
The appellant needed to do more by pointing out the reason behind the figure.
The court cannot therefore fault the decision of the Honorable magistrate on the basis of an omnibus figure suggested by the appellant.
The appellant having failed to demonstrate any form of misdirection by the lower court in arriving at its decision on quantum this court is left with only one option; dismiss the appeal.
Consequently, the court finds that the appeal was no merit on both liability and quantum. It is hereby dismissed with costs
It is so ordered.