The Appellant sued the Respondent in Plaint dated 20th April 2021 seeking special and general damages for injuries suffered on 22nd February 2021 together with costs of the suit and interest on the damages and costs at court rates.
The Appellant was travelling asa fare paying passenger in motor vehicle Reg. No. KCW 602 J on the material dy along Kisii-Keroka road when at Maili Mbili the vehicle she was travelling in was managed and/ or controlled and caused or permitted to lose control and collided with Motor Vehicle Reg. No KAQ 649Q in consequence whereof the Plaintiff/ Appellant sustained severe injuries and suffered loss and damage.
The Trial Magistrate considered the evidence of the Appellant and her 2 witnesses Dr. Morebu and P. C. Kenneth Walumbe and apportioned liability in the ratio of 80:20 in favour of the Appellant as against the Respondent. General Damages were assessed at Kshs. 170,000/= and Special at Kshs. 6700/= together with costs and interest from the date of judgement.
The Appellant was aggrieved by the judgment and he lodged the appeal herein vide Memorandum of Appeal dated 8th September 2022 on the following grounds:-
- That the learned Trial Magistrate erred in apportioning liability of 20% against the Appellant who was a lawful fare paying passenger aboard the Respondent’s motor vehicle at the time of the accident.
- That the learned Trial Magistrate erred failing to find that asa passenger in the Respondent’s vehicle the Appellant was not in control of the manner in which the motor vehicle was being driven and therefore would not have contributed howsoever to the occurrence of the said accident.
- That in apportioning liability of 20% against the Appellant, the Learned Trial Magistrate failed to appreciate that the Appellant had no control of the circumstances under which the accident occurred.
- That the Learned Trial Magistrate failed to consider that the evidence and testimony of the Appellant were never controverted.
REASONS WHEREFORE the Appellant prayed that:
_(a). The appeal be allowed and judgment on liability be set aside.
_ (b). That the court does assess the liability at 100% against Respondent.
_ (c). Costs of the appeal be awarded.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 16th December 2024 is to the effect that there was no apparent evidence on record of the Appellant’s contributory negligence to warrant liability being apportioned to her. The Appellant’s Counsel cited the holding in Micheal Hubert Kloss & Another Vs David Sorency & 5 Others 2009 Eklr where it was held that the question of apportioning liability must be determined by applying common sense to the facts of each particular case and the fact that even where the accident was caused by the fault of many people that does not mean that the accident must be regarded as having been caused by the fault of all of them.
In the Respondent’s submissions dated 4th January 2025 it is argued that the Appellant and her witness gave contradictory evidence as to whether the Respondent’s vehicle was to blame for the accident and the Appellant did not therefore discharge the burden of proof to the standard required that Motor Vehicle Reg. No. KCW 602 J caused the accident. The Respondent cited the authority in Benta Atieno Obonyo Vs Anne Nganga & Another [2021] Eklr where the Court of Appeal decision in Fred Ben Okoth Vs Equaror Bottlers Limited [2015] Eklr was quoted with approval to the effect that ‘’proof of causation is crucial to the success of most of the actions in tort, except in instances where the doctrine of ‘’res ipsa loquitor.’’
The Respondent argued further that the Appellant admitted that she was carrying a baby and ordinarily she could not have belted while carrying the baby as belt is for one person. The Respondent submitted that the appeal should be dismissed with costs to him.
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 Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issue that arises for determination is whether the Learned Trial Magistrate properly apportioned liability.
In Khambi and Another Vs Mahithi and Another (1968) E. A 70 it was held that:
‘’ It is well settled that where a trial judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial judge ( See also Brown & Or. vs. Thompson (1968) 2 All. E.R. 708, British Fame (Owners) v. MacGregor (Owners_) ( 1943) 1 All.E.R. 33. ) and Shariff v_ Sethna [1963] E.A. 239 in which bthe same principle was applied.
The Trial Magistrate in apportioning liability attributed negligence to both the Appellant and the Respondent and particularly for the Appellant for reasons she was carrying a baby and she did not belt up. The Trial Magistrate did not explain how failure to belt up caused the motor vehicle in which the Appellant was travelling to collide with motor vehicle Reg. No. KAQ 649Q. The Appellant in her reply to the statement of defence denied the particulars of negligence attributed to her and in her evidence in chief and in cross examination she said she was wearing her seat belt. The Respondent did not adduce evidence that would support the claim that the Appellant was liable because she did not belt up.
This court finds that although the finding on liability is an exercise of the Trial Court’s discretion the apportionment of blame upon the Appellant was based on the wrong application of the principle of blameworthiness and there was no evidence that the Appellant was culpable in any way.
Based on the above reasons it is my finding that the Appellant’s appeal has merit and the same is allowed in the following terms:
Judgment on liability is entered for the Appellant against the Respondent at 100%
General Damages for pain and suffering Kshs. 170,000/=
Special Damages Kshs. 6,500/=
Costs of the appeal to the Appellant.
General Damages and costs of the suit in the Trial Court and appeal to accrue interest at court rates from date of judgment and special damages to accrue interest at court rates from date of filing of the suit.
DELIVERED, DATED and SIGNED at MIGORI this 3rd Day of April, 2025