Tsusho Capital Kenya Ltd, Job Sagana Omoke & Amos Mairura v Nemwel Makana Ogamba & Selfinah Osiri Makana (suing as legal representative of Joan Kerebi Makana-Deceased) [2022] KEHC 27059 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CIVIL APPEAL NO. 79OF 2019

BETWEEN

TSUSHO CAPITAL KENYA LTD.......................................................1ST APPELLANT

JOB SAGANA OMOKE.......................................................................2ND APPELLANT

AMOS MAIRURA.................................................................................3RD APPELLANT

AND

NEMWEL MAKANA OGAMBA......................................................1ST RESPONDENT

SELFINAH OSIRI MAKANA(suing as legal representative of

JOAN KEREBI MAKANA-DECEASED)........................................2ND RESPONDENT

(Being an Appeal from the judgment in Oyugis Principal Magistrate’s

PMCC No. 197 of 2016 byHon. J.P. Nandi –Principal Magistrate).

JUDGMENT

1.   The appellant herein, were the defendants in Oyugis Principal Magistrate’s PMCC No.197 of 2016. This was a claim that arose from a road traffic accident involving motor vehicle registration number KAW 326K owned by the 1st & the 2nd appellants and which was driven by the 3rd appellant. The motor plunged into a river and the deceased was fatally injured. The learned trial magistrate delivered judgment dated 16th August, 2019. He held appellants 100% liable and made an award of Kshs. 3,757, 900 in general damages in favour of the respondent.

2.   The appellants were aggrieved by the said judgment and filed this appeal. They were represented by the firm of Omaya & Company advocates. They raised  the following  grounds of appeal:

a)   The honourable principal magistrate proceeded to award damages on loss of dependency when dependency was not proved.

b)   In the absence of proof of employment the honourable principal magistrate erred in law and in fact when he adopted the multiplier method to calculate loss of dependency instead of adopting a global figure to arrive at what he would have awarded had the plaintiffs proved liability.

c)   On liability the honourable principal magistrate erred in law when he held that failure by the defence to testify was enough proof of liability thereby excusing the plaintiffs from proving their case to the required standard.

d)   The honourable principal magistrate erred in fact when he failed to take in to account the fact that the occurrence of the accident was not settled and was conflicting between 25//12/2014 and 23/12/2014 and since there cannot be two versions of the same truth, he ought to have dismissed the suit for want of proof.

e)   The evidence adduced does not support the findings of the court on liability and the award made on quantum.

3.   The appeal was opposed by the respondents through the firm of Ndemo Mokaya & Company Advocates. They raised the following grounds of opposition:

a)   While preparing for the hearing of this appeal, it became clear that certain documents particularly the certified copy of the decree, were missing from the record of appeal.

b)   Legally, this court cannot allow this appeal to proceed to hearing without seeing a copy of the decree as per order 42 Rule 13(4) of the Civil Procedure Rules 2010.

c)   For justice to be done to the parties, the record must be complete.

d)   The documents sought to be introduced were not included in the bound record due to sheer in advertence and clerical mistake otherwise they were available in the original record of the court being the parent file from Oyugis court where Judgment was entered and the decree passed.

e)   No prejudice or injustice will be occasioned on the respondent if the decree and other documents are exhibited in a supplementary record of appeal since the documents are in any event the respondents’ own documents which are not strange documents to the respondents and it does no harm if the court also looks at them as required by the law.

4.   This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5.   In order to settle this appeal, three issues must be resolved. These are:

a)   When did the deceased die?

b)   When did the complained of accident take place?

c)   Was the deceased a passenger in the said vehicle registration number KAW 326K?

6.   According to the evidence of Edwin Bogonko Makana and Nemwel Makana Ogamba, the deceased who is the subject of this case died on 23rd December, 2014 when motor vehicle registration number KAW 326K she was travelling in plunged into a bridge [sic].  This was supported by the copy of certificate of death. It gave the date of death as 23rd December, 2014. However, the copy of burial permit indicated that the deceased died on 25th December, 2014.

7.   The copy of police abstract that was produced, indicated that the accident involving motor vehicle registration number KAW 326K along Kisii-Oyugis road was on 25th December, 2014 at 2 a.m.

8.   With these conflicting dates, the respondent did not prove when the accident occurred. This further introduced contradiction as to when the deceased died. This ought to have been reconciled for a victim of an accident need not die on the same date of the accident; one may succumb later but not earlier. In this case, there is no way the deceased would have died as a result of an accident of 25th December, 2014 on 23rd December, 2014.  This was two days prior to the accident complained of. It is inconceivable therefore to find that she was a passenger in motor vehicle registration number KAW 326K on the day of the accident.

9.   On 26th April, 2021 both parties consented to the application dated 18th March, 2021. This was an application to file a supplementary record of appeal. This supplementary record included a copy of the decree of the trial court. The argument by the respondents in their submissions that there was no decree is therefore misplaced.

10. The respondents did not prove that the deceased was employed and her earnings.  This is true. However this would not have been fatal to the respondents’ case.  The global award approach would have been appropriate in this case.

11. From the foregoing analysis of the evidence on record, I find that the respondents did not prove their case on a balance of probabilities.  I therefore set aside the judgment and decree of the trial court and allow the appeal with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 8TH DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE