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JudgmentZACHARIA MOROKO VS VINCENT MORANGA ASANDE4 min read

ZACHARIA MOROKO VS VINCENT MORANGA ASANDE

High Court at Kisii High Court · · Anne Ong'injo

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT KISII

HIGH COURT CIVIL APPEAL CASE NO E078 OF 2023

ZACHARIA MAROKO ………………………………………………APPELLANT

    VERSUS

VINCENT MORANGA…………..………………………….……….RESPONDENT

(Being an appeal against the judgment of Hon. C. A. Ogweno ( S. R. M) delivered on 11/7/2023 in Kisii CMCC No 881 of 2021)

JUDGEMENT

The Appellant was sued by the Respondent in Plaint dated 28th September 2021seeking special and general damages for injuries suffered on 4th June 2021 when Motor Vehicle Reg. KBC 104D was involved in a RTA with motor cycle Reg, KMEU 804V at Mwembe along Kisii-Kilgoris road. The Respondent was riding the motor-cycle in question when the Appellant’s driver allegedly lost control and collided with him and he sustained whiplash to the neck, chest contusion and laceration; right clavicle fracture and right shoulder joint contusion with resultant dislocation. The Appellant’s witness in his testimony said that the Respondent who was carrying a pillion passenger and a goat was trying to overtake a a 3rd party motor vehicle and he lost control when trying to go back to his lane and rammed on to DW1’s vehicle. DW1 blamed the Respondent for overtaking without ascertaining if it was clear.

Upon consideration of the claim the Trial Magistrate apportioned liability in the ratio of 50:50 between the parties and quantified general damages at Kshs. 700,000/=, Special Damages at Kshs. 6500/= together with costs and interest.

The Appellant was aggrieved by the judgment and he lodged the appeal herein vide Memorandum of Appeal dated 27th July 2023 on the following grounds:-

  1. That the trial magistrate erred in law and fact in failing to take into account relevant evidence/ factors and thereby arriving at a determination on damages which were manifestly excessive
  2. That the learned trial magistrate erred in law and fact in adopting the wrong principles in making a determination on the damages payable to the Respondent.
  3. That the learned trial magistrate erred in law and fact in awarding general damages of Kshs. 700,000/= that were manifestly excessive in the circumstances and in view of the evidence adduced by the parties and the comparable authorities provided by the Appellant.

Directions were taken for hearing of the appeal by way of written submissions. However upon perusal of the CTS it was revealed that the Appellant did not file submissions as directed and this court after waiting for the same has decided to write the judgement based on the Respondents brief submissions dated 9th September 2024.

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 issues that arise for determination are:-

  1. Whether the trial magistrate failed to take into account relevant evidence/ factors and thereby arriving at a determination on damages which were manifestly excessive
  2. Whether the learned trial magistrate adopted the wrong principles in making a determination on the damages payable to the Respondent.
  3. Whether the award of general damages of Kshs. 700,000/= were manifestly excessive in the circumstances and in view of the evidence adduced by the parties and the comparable authorities provided by the Appellant.

The Appellant did not file submissions to point out what relevant evidence the Trial Magistrate failed to take into account and thereby arriving at the quantum of damages of Kshs. 700,000/=. The court is therefore left to speculate even on the principle that is claimed to have been wrongly applied by the Trial Magistrate that led to her arriving at the decision she made apportioning liability and quantifying general damages at Kshs. 700,000/=

Being that the Appellant failed to file submissions pointing to why the Trial Magistrates Judgement should be faulted it would be an exercise in futility and a waste of judicial time  for the court to start searching for the same without direction. This court therefore finds that there is no sufficient ground to warrant unsettling the judgement of the Trial court. The appeal is dismissed with costs to the Respondent. 

DELIVERED, DATED and SIGNED at MIGORI this   30th April 2025 day of March,   2025

    ZACHARIA MOROKO VS VINCENT MORANGA ASANDE ZACHARIA MOROKO VS VINCENT MORANGA ASANDE