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Maguna Andu Wholesalers (K) Ltd v Ndaaro (Civil Appeal 47 of 2019) [2022] KEHC 484 (KLR) (11 May 2022) (Judgment)
Neutral citation:
[2022] KEHC 484 (KLR)
Republic of Kenya
Civil Appeal 47 of 2019
J Wakiaga, J
May 11, 2022
Between
Maguna Andu Wholesalers (K) Ltd
Appellant
and
Ruth Nyambura Ndaaro Alias Ruth Nyambura
Respondent
Judgment
1.The Appeal is both on liability and quantum.
2.Being the first Appellant Court I have looked at the proceedings before the trial court and noted that whereas the Appellant did not call any evidence, the evidence of PW2 shows that the lorry was reversing while the deceased was standing on its way.
3.I agree with the submissions by the Respondent that she owed a duty of care to herself and fellow road users while on the said road.
4.I would therefore allow the appeal on liability and set aside the holding of 100% and substitute the same with liability at the ration of 30% : 70% in favour of the deceased.
5.I have noted that the deceased was aged 80 years at the time of her death and whereas the trial court currectly used the global figure, the same fell into error by not giving reason as to why she awarded Kshs.500,000/=
6.Whereas this court on Appeal is not supposed to substitute its Judgment with that of the trial court simply because it does not agree with it, I have looked at the comparable authorities where those who died at the same age have been awarded Kshs.200,000/-.
7.Taking into account the rate of inflation I am of the considered view and find that an award of Kshs.300,000/= would have been reasonable.
8.I therefore allow the Appeal on this head and substitute the trial court’s award of Kshs.500,000/= with an award of Kshs.300,000/=.
9.I find no fault with all the other awards since the law only requires the court to take into account an award both under loss of expectation of life and under fatal Accident Act.
10.In the final analysis I allow the Appeal herein and substitute the lower Court judgment with the following:a.Liability 30% : 70% in favour of the Appellantb.Pain and suffering - Kshs.10,000/=c.Loss of expectation of life - Kshs.100,000/=d.Damages under fatal accident Act – Kshs.300,000/=e.Special damages - Kshs.673,691/=Kshs.1,083,961/=Less 30% - Kshs.325,185/=Total - Ksh.758,773/=
11.The Respondent is entitled to cost of the suit at the Lower Court while the Appellant is entitled to cost of this appeal. The sum awarded shall attract interest at court rates.
DATED, SIGNED AND DELIVERED THIS 11TH DAY OF MAY, 2022J. WAKIAGAJUDGE
