The Appellants’ claim in the trial court arose out of fatal road traffic accident that occurred on 23rd February 2018 along Awendo – Rongo road.
During trial the parties recorded consent on liability in the ratio of 80:20 and the only issue that remained for determination was quantum of damages.
Upon consideration of the evidence on record adduced by PW1 and the submissions by respective parties the Trial Magistrate assessed damages as follows:
- Pain and suffering Kshs. 100,000/=
- Loss of expectation of life Kshs. 150,000/=
- Loss of dependency Kshs. 6, 513,048/= less statutory deductions and loans owed by the deceased.
The Appellant was aggrieved by the judgement and appealed against the said judgement vide Memorandum of Appeal dated 5th November, 2021on the following grounds:
1. THAT the Learned Magistrate erred in law and fact when he considered the Respondents’ submissions as evidence
2. THAT the Learned Magistrates erred in law and fact by making findings on non-issues.
3. THAT the honourable Magistrate erred in law and in fact by disregarding the principle of stare decisis.
4. THAT the honourable Magistrate erred in law and fact by arbitrarily deducting loans advanced to the deceased much against no pleadings and / or evidence
5. THAT the Learned Trial Magistrate ignored and / or failed to take judicial notice that the alleged loans were insured and were already paid by the insurance upon the death of the deceased.
It is proposed to ask the court for orders that:
i) Kshs. 1,001,667.92 deducted on account of loans advanced to the deceased
ii) Kshs 150,000/= deducted on account of loss of expectation of life
iii) Costs of the appeal.
iv) Interest on the above claims from date of filing of the primary suit
The appeal herein was canvassed by way of written submissions.
The Appellants filed their written submissions on 14th March 2025 as directed by the Trial Court.
The Respondents did not file submissions up to the time this appeal was fixed for judgment.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
Having considered the grounds of appeal and the Appellants’ submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh and in the absence of the Respondents’ submissions this court finds that the Learned Trial Magistrate was in error in deducting the loans owed by the deceased from the damages assessed and awarded to the Appellants following the fatal accident that claimed the life of the deceased.
This court therefore finds that the appeal has merit and the same is allowed as prayed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 28TH DAY OF MAY, 2026.
During trial the parties recorded consent on liability in the ratio of 80:20 and the only issue that remained for determination was quantum of damages.
Upon consideration of the evidence on record adduced by PW1 and the submissions by respective parties the Trial Magistrate assessed damages as follows:
- Pain and suffering Kshs. 100,000/=
- Loss of expectation of life Kshs. 150,000/=
- Loss of dependency Kshs. 6, 513,048/= less statutory deductions and loans owed by the deceased.
The Appellant was aggrieved by the judgement and appealed against the said judgement vide Memorandum of Appeal dated 5th November, 2021on the following grounds:
1. THAT the Learned Magistrate erred in law and fact when he considered the Respondents’ submissions as evidence
2. THAT the Learned Magistrates erred in law and fact by making findings on non-issues.
3. THAT the honourable Magistrate erred in law and in fact by disregarding the principle of stare decisis.
4. THAT the honourable Magistrate erred in law and fact by arbitrarily deducting loans advanced to the deceased much against no pleadings and / or evidence
5. THAT the Learned Trial Magistrate ignored and / or failed to take judicial notice that the alleged loans were insured and were already paid by the insurance upon the death of the deceased.
It is proposed to ask the court for orders that:
i) Kshs. 1,001,667.92 deducted on account of loans advanced to the deceased
ii) Kshs 150,000/= deducted on account of loss of expectation of life
iii) Costs of the appeal.
iv) Interest on the above claims from date of filing of the primary suit
The appeal herein was canvassed by way of written submissions.
The Appellants filed their written submissions on 14th March 2025 as directed by the Trial Court.
The Respondents did not file submissions up to the time this appeal was fixed for judgment.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
Having considered the grounds of appeal and the Appellants’ submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh and in the absence of the Respondents’ submissions this court finds that the Learned Trial Magistrate was in error in deducting the loans owed by the deceased from the damages assessed and awarded to the Appellants following the fatal accident that claimed the life of the deceased.
This court therefore finds that the appeal has merit and the same is allowed as prayed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 28TH DAY OF MAY, 2026.