The Appellants case:
1. The cause of action forming the subject of the appeal herein arose on or about the 13th day of June 2019, as a result of a road traffic accident that occurred along Migori - Kisii road, involving motor vehicle Reg. No. KCJ416Y which was at the material time being driven by the Appellant's driver, agent, servant and/or employee and the Respondent who was a lawful pillion passenger.
2. In the primary suit the Respondent pleaded that he sustained Chest contusion, Chest tenderness, Bruises of the posterior right elbow, Compound fracture of the mid left ulna, Blunt trauma to the right ankle and a Deep cut wound on the right ankle.
3. Upon hearing the suit, the court issued a judgment in favour of the Respondent. Dissatisfied with the judgment the Appellant lodged the appeal that is before this court for hearing and determination.
4. In the Memorandum of Appeal dated 20th February, 2022, the Appellant raised the following grounds: -
1) The Learned Magistrate erred in law and in fact in finding that the Appellants were 100% liable for causing the accident the subject of this suit while there was a third party motor vehicle involved.
2) The Learned Magistrate erred in law and in fact in was entitled to Kshs1,000,000/= (One million shillings) being general damages.
3) The Learned Magistrate erred in law and in fact in disregarding judicial precedents quoted by the Appellants counsel in his submissions.
4) The Learned Magistrate erred in fact and in Law in failing to consider conventional awards both on liability and quantum in cases of similar nature.
6. The Appellant seeks the following orders, that:
a) This Appeal be allowed with costs.
b) The Judgement delivered in 15th June 2021 by Honourable E.O OBINA Principal Magistrate be set aside and the court assess damages afresh.
The Respondents' Case;
5. It is the Respondent’s case that, the Appellant filed a Statement of Defence wherein he merely denied all the averments contained in the Plaint and put the Respondent to strict proof. He neither testified nor called any witness(s) in rebuttal.
6. The Respondent's witnesses included that of the Respondent, the Medical Doctor and the Investigating police officer. The Respondent tendered as exhibits, the documents as set out in the List of Documents.
7. According to the Respondent, the learned trial magistrate properly appreciated the material before court, analyzed, weighed and applied the evidence within the law and properly isolated the real issues for determination, answered each of them and reached the just decision appealed against. The Respondent’s evidence was reasonable, tenable, acceptable and unshaken.
8. Reliance is placed in the case of Jackson Kaio Kivuva v Penina Wanjiru Muchene [2019] eKLR, where Mwita, J said this regarding the role and duty of a first appellate court:
“This being a first appeal, parties are entitled to and expect a rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.”
9. The Respondent submits that the Appellant has not demonstrated that the trial magistrate applied or acted on the wrong principles, or awarded so excessively as no reasonable court would, or took into consideration matters which he ought not to have considered or never took in consideration matters he ought to have considered or never took in consideration matters which he ought to have taken into consideration, and in the result, arrived at a wrong decision.
Analysis and determination;
10. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA. The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
11. 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...”
12. In the cases of Butler vs Butler Nairobi Civil Appeal No.49 of 1983 [1984] KLRas well as Mariga vs Musila Nairobi Civil Appeal No.66 of 1982 & 88 of 1983(consolidated) [1984] KLR, it was concluded that assessment of damages is more like an exercise of discretion by the trial Judge and an appellate court should be slow to reverse the trial Judge unless he has either acted on: -
i. wrong principles; or
ii. awarded so excessive or so little damages that no reasonable court would or;
iii. he has taken into consideration matters he ought not to have considered; or not taken into consideration matters he ought to have considered, and
iv. in the result, arrival at a wrong decision.
13. From the record placed before me, I am satisfied that on 27th January 2021 when the matter came up for defence hearing, Ms Nyanaro learned counsel for the defendant sought an adjournment and leave to file the drivers' statement. On 21st April 2021 when again the matter came up for hearing of the defence case, - Miss Nyanaro learned counsel opted to close the defence case. Parties were invited to file, written submissions. Only the Respondent’s counsel filed submissions.
14. A copy of records was produced showing that the motor vehicle belonged to the Francis Omari Ogaro.
15. From the police abstract it is not in doubt that an accident occurred on 13th June 2019 at 1330hours near Daraja Mbili market involving motor vehicle registration number KCJ 416Y Toyota Probox and KBZ 05D.Peter Onkoba Nyakweba a pillion passenger suffered grievous harm injuries.
16. The Appellant did not challenge the Respondent’s evidence. In the circumstances the court hereby draws an adverse inference from the absence of a witness who might have been called, and who might be expected to have material evidence to give.
17. On a balance of probabilities, it is my finding and I so hold that the Respondent proved that the Appellant is 100% liable for the accident.
18. On the issue of damages, I am guided by the Court of Appeal in Butt vs. Khan 1977 11 KLR where in the court observed as follows:
“An appellate court will not disturb an award for damages unless it is 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.”
19. As at the time of the hearing, he was experiencing chest pain on exertion and pain on the left hand. The Respondent pleaded special damages of Kshs, 16,750 spent on medical examination, and report and on the treatment expenses. He sought for future medical expenses.
20. It is this court’s finding and I so hold that the amount awarded by the trial court is not inordinately high. The trial court awarded compensation in a sum that is not only commensurate with the nature of injuries suffered by the Respondent but also consistent with other awards made in similar cases.
Disposition;
21. The appeal lacks merit.
Order:
The appeal is dismissed with costs.