Barasa ((Suing as Legal Representative of the Estate of Simon Wesonga - Deceased)) v Gemini Stores Limited [2023] KEHC 19256 (KLR)

Barasa ((Suing as Legal Representative of the Estate of Simon Wesonga - Deceased)) v Gemini Stores Limited (Civil Appeal E011 of 2022) [2023] KEHC 19256 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19256 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E011 of 2022

WM Musyoka, J

June 30, 2023

Between

Marisalina Adhiambo Barasa

Appellant

(Suing as Legal Representative of the Estate of Simon Wesonga - Deceased)

and

Gemini Stores Limited

Respondent

(Appeal from judgment and decree of Hon. FY Kulecho, Senior Resident Magistrate, SRM, in Busia RMCCC No. 27 of 2020, of 14th March 2022)

Judgment

1. The appellant had sued the respondent, at the primary court, for compensation, on behalf of the estate of the deceased, who died, following a traffic road accident on November 20, 2018, along Mumias-Busia road. The deceased was a rider of an unidentified motorcycle, which was in a collision with vehicle registration mark and number KBW 243W, said to have belonged to the respondent, and liability was attributed to the respondent, on account of negligence. The respondent filed a defence, denying the accident, and everything else pleaded in the plaint. In the alternative, the respondent pleaded that, if any accident occurred, it must have been due to negligence on the part of the deceased, or he contributed to it.

2. A trial was conducted. On liability, the court held the respondent and the deceased equally liable. On quantum, the court assessed damages at Kshs 20, 000. 00 for pain and suffering, Kshs 100, 000. 00 for loss of expectation of life, Kshs 4, 712, 000. 00 for loss of dependency, Kshs 274, 000. 00 special damages, making a grand total of Kshs 5, 106, 000. 00, less 50% contribution, making Kshs 2, 553, 000. 00.

3. The appellant was aggrieved, hence the appeal. Only 2 grounds are listed, around the issue of liability.

4. The appeal was canvassed by way of written submissions, and it turns on only one issue, liability.

5. The appellant was the administratrix of the estate of the deceased, the rider of the accident motorcycle. Liability could be properly apportioned against the estate of the deceased. Liability was not apportioned against the appellant, but rather against the estate that she represents. The accident involved 2 vehicles, the motorcycle ridden by the deceased herein, and the vehicle belonging to the respondent. There was a collision of the 2 vehicles, and liability could be properly apportioned between the persons who had control and management of the 2 vehicles, based on the degree of contribution of each of the drivers . The trial court heard and saw the witnesses, and apportioned liability based on the material that was placed before it. I am not persuaded that I should interfere. The trial court did not apply the wrong principles.

6. I find no merit in the appeal herein, and I hereby dismiss it. Each party shall bear their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 30TH DAY OF JUNE 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMr. Omondi, instructed by Omondi & Company, Advocates for the appellant.Mr. Abande, instructed by Omondi Abande & Company, Advocates for the respondent.