INTRODUCTION
1. The appellant’s appeal to this court is on quantum awarded in the judgement of Honourable E.N Wanjala (MS) Principal Magistrate delivered on 26th June, 2021 in Milimani CMCC NO.7648 of 2018 on the following grounds that :-
i. The trial magistrate's magistrate èrred in law and in fact in law and misdirected himself when he failed to consider the Appellants submissions on quantum on both point of law and facts.
ii. The learned trial Magistrate's judgement was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
iii. The learned trial magistrate misdirected himself and applied the wrong principle of law when he awarded damages under both Fatal Accidents Act and Law Reform and in fact failed to consider that the dependants under the Fatal Accidents Act as pleaded were the same beneficiaries under Law Reform Act.
iv. The learned magistrate erred in law and in fact in awarding an award of Kshs. 2,058,759/-for loss of dependency and without consideration of submissions made by the appellant counsel on dependency and evidence adduced before the trial court.
v. The learned trial magistrate erred in law and in fact in failing to consider the authorities cited by the appellants in their submissions.
vi. The Learned Magistrate erred in awarding costs of the suit and interest to the Respondent.
APPELLANTS CASE
2. The appellant did not file submissions in support of his appeal thus the court was solely left to consider the evidence and submissions filed by the respondent.
RESPONDENTS CASE
3. The respondent posed several key questions for this court to consider; - What amount of monetary compensation is too much for a man whose life has been brutally taken through the negligence of a Matatu driver? Is Kshs 2,000, 000 as was awarded in this case, inordinately high? What is the value of human life? Can money replace a lost life?
4. The respondent submitted that they posed those questions because according to them this appeal is not only misguided but also a waste of the court's precious judicial time and an attempt to trivialize human life.
5. The trial court awarded the respondents Kshs 1,774,284 for loss of dependency, Kshs 50,000 under Law reform Act and Kshs 134,475 as special damages bringing a total of Kshs 2,058,759.
6. The respondent urged this court to address its mind to the questions posed and dismiss the appeal.
7. The respondent placed reliance on the decision of the court in H. West And Son Ltd vs. Shephard [1964] AC 326 AT 345 ; where the court stated thus:-
"Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation."
8. The appellant moved the court to vary the finding of the lower court on damages. The respondent urged this court to resist and turn down the request by the appellant considering that the deceased lost his life through the negligent act of the appellant.
9. The respondent submitted that this court should find that the sum of Kshs 2,058,759 granted by the lower court was reasonable taking into account the totality of the facts in this case.
10. The respondent urged this court to be guided by the decision of the East African Court of Appeal in the case of Butt v Khan (Civil Appeal 40 of 1977) [1978] KECA 24 (KLR) (Civ) (1 February 1978) (Judgment) where the court set the guiding principles that the appellate courts ought to consider when faced with similar appeals. The court stated thus :-
‘ ’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’’ .
11. The deceased herein was 43 years old at the time of his death occasioned by the appellant through a road accident. He was self-employed as an electrical engineer. He was a single parent to two minor children and was also survived by his 72 years old mother who also depended on him.
12. In the instant case, it has not been shown that an award of Kshs 2,058,759 in compensation following a fatal accident was inordinately high. Further, it has not been shown that the judge proceeded on wrong principles or misapprehended some material aspect of the law or facts so as to reach a sum that is inordinately high that does not represent the true state of things. We place further reliance on the Court of Appeal decision in Kemfro Africa Limited t/a"Meru Express Services (1976)" & another v Lubia & another (No 2) (Civil Appeal 21 of 1984) [1985] KECA 137 (KLR) (Civ) (27 February 1985) (Judgment) where the court stated:-
‘’The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.’’
13. The respondent went further to submit that the appellants filed Civil Appeal No. E554 of 2021. The same was dismissed vide an Order of the Hon. Justice A. N. Ongeri issued on 27th October, 2023. Following the said dismissal order, the sum of Kshs 1,000,000 which had been despoited into an escrow account as a condition for stay of execution was already released to them. The respondent told this court that they are in the process of executing for the balance of the decretal award. As such, the respondent argued that this appeal is res-judicata and should be dismissed with costs.
14. Further, the respondent submitted that other than the appeal being res judicata, the same was filed more than two years after delivery of the impugned judgment without the leave of the court. It would seem that once their initial Civil Appeal No. E554 of 2021 was dismissed, the appellant decided to file another application thereby abusing the process of the court.
15. Furthermore, under section 79F of the Civil Procedure Act, appeals from subordinate courts to the High Court should be filed within 30 days of the date of the impugned judgment. In the instant case, the impugned judgment was delivered on 25th June, 2021. This means that the appellant had up-to 24th July, 2021 to file an appeal. This appeal, having been filed more than two years after the impugned judgment is therefore an abuse of process and should be dismissed.
16. In conclusion the respondent submitted that the appellant did not file any documentary exhibits in the lower court nor written submissions. The appeal according to the respondent is bare and should simply be dismissed.
ANALYSIS AND DETREMINATION.
17. The respondent in this matter called two (2) witnesses one of whom was the mother to the deceased who testified that the deceased was an electrical engineer who was self -employed at the time of his death.
18. She had obtained the necessary letters of administration thus she had the necessary legal capacity to institute the suit for and on behalf of of the deceased’s estate.
19. The deceased left behind two children and at the time of his death he was aged 43 years.
20. The respondent produced documents in support of her case as per the list of documents filed on 28 th August 2018. She also filed a witness statement which she adopted at the time of giving evidence. The appellant filed not a single document in support of its case.
21. Further, the respondent called PW1 a police officer from Makongeni police Station who testified that on 5 th March 2017 at around 10:30pm the driver of motor vehicle KCA 733B is Isuzu bus reported that the said motor vehicle had been involved in an accident and that the victim had been rushed to Jamaa Hospital. The witness testified that police officers went to Jamaa Hospital to see the victim and ascertain the nature of injuries only for them to return later and report that the victim of the accident had passed on.
22. Notably, the appellant did not call any evidence to challenge the evidence adduced by the respondent. The duty of this court as a first appellate court is to analyze the evidence adduced by the parties and to draw therefrom its own independent conclusions. The court should however bear in mind that it did not have the opportunity to hear or see the witnesses. See Selle & Another Vs Associated Motor Boat Company Ltd & Others 1968 EA 123.
23. In this appeal the only evidence on record that this court is called upon to examine is the evidence tendered by the respondent. It is the view of this court that the evidence adduced by the respondent in support of her case was sufficient to establish a case of negligence against the appellant.
24. Notably, the appellant did not challenge the evidence thus leaving the court with no other evidence to act on other than that of the respondent and her witness.
25. The appellant has also not demonstrated to the court in what respect the award by the lower court is exceptionally or unreasonably high. The appellant has also not demonstrated in what sense the lower court could be said to have applied the wrong principles of law or misapplied correct principles of law leading to an erroneous decision.
26. The appellant chose not to file submissions in this appeal as well as in the lower court. It is not the business of the court to try and figure out what a party had in mind when they filed the appeal. The duty to prosecute the appeal remains solely upon the appellant. The appellant abdicated that sacred duty and should therefore not expect this court to come to his aid.
27. I find that the evidence tendered by the respondent on a balance of probabilities established that the appellant was 100% liable for the accident and he cannot therefore be heard on appeal to urge this court to review the decision of the learned Honorable magistrate whether on liability or quantum. The award granted by the trial court was in my view extraordinarily reasonable and in my view the appellant should have simply settled the same without any qualms.
28. This court has noted that there was an appeal previously filed by the appellant being Appeal No. E554 of 2021 which appeal was dismissed on 27 th October 2023 and following the dismissal a sum of Kshs. 1,000,000 was paid to the respondent.
29. The appellant has not controverted that limb of submission by the respondent thus the present appeal is Res judicata and a classic case of abuse of court process. The delay in the filing of the appeal is also unexplained and renders the same incompetent since there was no leave sought and granted before filing.
30. As a result, this court finds that the appeal is a non -starter and is hereby dismissed with costs to the respondent.
31. The manner in which the appellant handled the prosecution of this appeal and the proceedings in the Lower court, leaves no doubt in the mind of this court that from the very beginning the appellant did not believe in his own case and approached the matter with such a degree of casualness that betrays the character of a litigant who is so burdened by guilt as to render it impossible for them to attempt to mount a defense.
32. It is no doubt a confirmation as argued by counsel for the respondent, that the appeal was initiated for purposes of delaying the appellants date with fate. The appellant must make good the claim with costs and interests at court rates from the date of judgment in the lower court.
33. The appeal is therefore dismissed with costs.
34. It is so ordered.
1. The appellant’s appeal to this court is on quantum awarded in the judgement of Honourable E.N Wanjala (MS) Principal Magistrate delivered on 26th June, 2021 in Milimani CMCC NO.7648 of 2018 on the following grounds that :-
i. The trial magistrate's magistrate èrred in law and in fact in law and misdirected himself when he failed to consider the Appellants submissions on quantum on both point of law and facts.
ii. The learned trial Magistrate's judgement was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
iii. The learned trial magistrate misdirected himself and applied the wrong principle of law when he awarded damages under both Fatal Accidents Act and Law Reform and in fact failed to consider that the dependants under the Fatal Accidents Act as pleaded were the same beneficiaries under Law Reform Act.
iv. The learned magistrate erred in law and in fact in awarding an award of Kshs. 2,058,759/-for loss of dependency and without consideration of submissions made by the appellant counsel on dependency and evidence adduced before the trial court.
v. The learned trial magistrate erred in law and in fact in failing to consider the authorities cited by the appellants in their submissions.
vi. The Learned Magistrate erred in awarding costs of the suit and interest to the Respondent.
APPELLANTS CASE
2. The appellant did not file submissions in support of his appeal thus the court was solely left to consider the evidence and submissions filed by the respondent.
RESPONDENTS CASE
3. The respondent posed several key questions for this court to consider; - What amount of monetary compensation is too much for a man whose life has been brutally taken through the negligence of a Matatu driver? Is Kshs 2,000, 000 as was awarded in this case, inordinately high? What is the value of human life? Can money replace a lost life?
4. The respondent submitted that they posed those questions because according to them this appeal is not only misguided but also a waste of the court's precious judicial time and an attempt to trivialize human life.
5. The trial court awarded the respondents Kshs 1,774,284 for loss of dependency, Kshs 50,000 under Law reform Act and Kshs 134,475 as special damages bringing a total of Kshs 2,058,759.
6. The respondent urged this court to address its mind to the questions posed and dismiss the appeal.
7. The respondent placed reliance on the decision of the court in H. West And Son Ltd vs. Shephard [1964] AC 326 AT 345 ; where the court stated thus:-
"Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation."
8. The appellant moved the court to vary the finding of the lower court on damages. The respondent urged this court to resist and turn down the request by the appellant considering that the deceased lost his life through the negligent act of the appellant.
9. The respondent submitted that this court should find that the sum of Kshs 2,058,759 granted by the lower court was reasonable taking into account the totality of the facts in this case.
10. The respondent urged this court to be guided by the decision of the East African Court of Appeal in the case of Butt v Khan (Civil Appeal 40 of 1977) [1978] KECA 24 (KLR) (Civ) (1 February 1978) (Judgment) where the court set the guiding principles that the appellate courts ought to consider when faced with similar appeals. The court stated thus :-
‘ ’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’’ .
11. The deceased herein was 43 years old at the time of his death occasioned by the appellant through a road accident. He was self-employed as an electrical engineer. He was a single parent to two minor children and was also survived by his 72 years old mother who also depended on him.
12. In the instant case, it has not been shown that an award of Kshs 2,058,759 in compensation following a fatal accident was inordinately high. Further, it has not been shown that the judge proceeded on wrong principles or misapprehended some material aspect of the law or facts so as to reach a sum that is inordinately high that does not represent the true state of things. We place further reliance on the Court of Appeal decision in Kemfro Africa Limited t/a"Meru Express Services (1976)" & another v Lubia & another (No 2) (Civil Appeal 21 of 1984) [1985] KECA 137 (KLR) (Civ) (27 February 1985) (Judgment) where the court stated:-
‘’The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.’’
13. The respondent went further to submit that the appellants filed Civil Appeal No. E554 of 2021. The same was dismissed vide an Order of the Hon. Justice A. N. Ongeri issued on 27th October, 2023. Following the said dismissal order, the sum of Kshs 1,000,000 which had been despoited into an escrow account as a condition for stay of execution was already released to them. The respondent told this court that they are in the process of executing for the balance of the decretal award. As such, the respondent argued that this appeal is res-judicata and should be dismissed with costs.
14. Further, the respondent submitted that other than the appeal being res judicata, the same was filed more than two years after delivery of the impugned judgment without the leave of the court. It would seem that once their initial Civil Appeal No. E554 of 2021 was dismissed, the appellant decided to file another application thereby abusing the process of the court.
15. Furthermore, under section 79F of the Civil Procedure Act, appeals from subordinate courts to the High Court should be filed within 30 days of the date of the impugned judgment. In the instant case, the impugned judgment was delivered on 25th June, 2021. This means that the appellant had up-to 24th July, 2021 to file an appeal. This appeal, having been filed more than two years after the impugned judgment is therefore an abuse of process and should be dismissed.
16. In conclusion the respondent submitted that the appellant did not file any documentary exhibits in the lower court nor written submissions. The appeal according to the respondent is bare and should simply be dismissed.
ANALYSIS AND DETREMINATION.
17. The respondent in this matter called two (2) witnesses one of whom was the mother to the deceased who testified that the deceased was an electrical engineer who was self -employed at the time of his death.
18. She had obtained the necessary letters of administration thus she had the necessary legal capacity to institute the suit for and on behalf of of the deceased’s estate.
19. The deceased left behind two children and at the time of his death he was aged 43 years.
20. The respondent produced documents in support of her case as per the list of documents filed on 28 th August 2018. She also filed a witness statement which she adopted at the time of giving evidence. The appellant filed not a single document in support of its case.
21. Further, the respondent called PW1 a police officer from Makongeni police Station who testified that on 5 th March 2017 at around 10:30pm the driver of motor vehicle KCA 733B is Isuzu bus reported that the said motor vehicle had been involved in an accident and that the victim had been rushed to Jamaa Hospital. The witness testified that police officers went to Jamaa Hospital to see the victim and ascertain the nature of injuries only for them to return later and report that the victim of the accident had passed on.
22. Notably, the appellant did not call any evidence to challenge the evidence adduced by the respondent. The duty of this court as a first appellate court is to analyze the evidence adduced by the parties and to draw therefrom its own independent conclusions. The court should however bear in mind that it did not have the opportunity to hear or see the witnesses. See Selle & Another Vs Associated Motor Boat Company Ltd & Others 1968 EA 123.
23. In this appeal the only evidence on record that this court is called upon to examine is the evidence tendered by the respondent. It is the view of this court that the evidence adduced by the respondent in support of her case was sufficient to establish a case of negligence against the appellant.
24. Notably, the appellant did not challenge the evidence thus leaving the court with no other evidence to act on other than that of the respondent and her witness.
25. The appellant has also not demonstrated to the court in what respect the award by the lower court is exceptionally or unreasonably high. The appellant has also not demonstrated in what sense the lower court could be said to have applied the wrong principles of law or misapplied correct principles of law leading to an erroneous decision.
26. The appellant chose not to file submissions in this appeal as well as in the lower court. It is not the business of the court to try and figure out what a party had in mind when they filed the appeal. The duty to prosecute the appeal remains solely upon the appellant. The appellant abdicated that sacred duty and should therefore not expect this court to come to his aid.
27. I find that the evidence tendered by the respondent on a balance of probabilities established that the appellant was 100% liable for the accident and he cannot therefore be heard on appeal to urge this court to review the decision of the learned Honorable magistrate whether on liability or quantum. The award granted by the trial court was in my view extraordinarily reasonable and in my view the appellant should have simply settled the same without any qualms.
28. This court has noted that there was an appeal previously filed by the appellant being Appeal No. E554 of 2021 which appeal was dismissed on 27 th October 2023 and following the dismissal a sum of Kshs. 1,000,000 was paid to the respondent.
29. The appellant has not controverted that limb of submission by the respondent thus the present appeal is Res judicata and a classic case of abuse of court process. The delay in the filing of the appeal is also unexplained and renders the same incompetent since there was no leave sought and granted before filing.
30. As a result, this court finds that the appeal is a non -starter and is hereby dismissed with costs to the respondent.
31. The manner in which the appellant handled the prosecution of this appeal and the proceedings in the Lower court, leaves no doubt in the mind of this court that from the very beginning the appellant did not believe in his own case and approached the matter with such a degree of casualness that betrays the character of a litigant who is so burdened by guilt as to render it impossible for them to attempt to mount a defense.
32. It is no doubt a confirmation as argued by counsel for the respondent, that the appeal was initiated for purposes of delaying the appellants date with fate. The appellant must make good the claim with costs and interests at court rates from the date of judgment in the lower court.
33. The appeal is therefore dismissed with costs.
34. It is so ordered.