(Being an appeal from the judgment and Decree of Hon. J.P. Omollo SRM & Adjudicator in the SCCC No. E 370 of 2022 delivered on 25th October 2022)
INTRODUCTION
The appellant has moved this court to set aside the judgment delivered on 25th October 2022 in which the learned Honourable Magistrate apportioned liability between the appellant and the Respondent at 50:50. The Appellant prays that this court be minded to find the Respondent 100% liable for the accident.
The Appellant further prays that the court should in any event consider apportioning higher liability upon the Respondent.
On quantum the Appellant seeks that the same be set aside as well.
SUMMARY OF FACTS
The claim arises out of road Traffic Accident which occurred on 24th February 2019 along Githanga Road. The accident involved motor vehicle Registration Numbers KBR 822 D and KCJ 454 N. It was alleged that the driver of KCJ 454N caused the motor vehicle to ram into that of the claimant thus causing the damage. The claimant claimed a sum of Ksh. 386,896/= being the cost of repairs while the Respondent counterclaimed Ksh. 568,019/= as repair costs.
The adjudicator proceeded to find the to parties responsible for the accident and apportioned liability at 50:50. The resultant award to the Respondent in the Lower Court was Ksh. 90,811.50 after contribution of 50:50. It is this finding that has prompted the appeal.
ANALYSIS AND DETERMINATION
The duty of this court as a first Appellate Court is to review the evidence, reevaluate the same and draw its own conclusions taking into account that this court did not have the opportunity to hear the witnesses.
The evidence of the claimant revealed that the accident occurred at a junction. The claimant acknowledged that there were bumps that both vehicles jumped before the accident happened. The witness called by the claimant stated that the vehicle which was to blame was the motor vehicle KCJ 454.
The respondent on his part stated that he had stopped at the junction when the accident happened. The Respondent blamed the claimant for failing to control his own vehicle.
The police officer who testified however blamed the motor vehicle KBR 822 D for the accident initially only to state that there was an anomaly in the Police Abstract and that the motor vehicle KCJ 454 N was to blame.
It is this evidence that the Adjudicator considered in order to arrive at the conclusion he did. It is my finding from the evidence tendered, the drivers were jointly to blame for the accident. The police officers who visited the scene were not of help in this matter. The evidence by the police only served to cause confusion and the court was left to rely on the evidence by the parties. The adjudicator was correct in holding the drivers liable 50:50. None of them accepted liability and considering where the accident occurred the decision was fair in the circumstances.
The quantum was an account of the liquidated claims. I find no reason to disturb the decision of the Adjudicator on both liability and quantum. The appeal has no merit and is therefore dismissed with costs. It is so ordered.