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|Case Number:||Civil Appeal 31 of 2009|
|Parties:||MATHEW O. NYAKOLITA & EDWARD ADERO KOBE v SIPRA AKOTH ABOKA|
|Date Delivered:||26 Nov 2010|
|Court:||High Court at Kisumu|
|Citation:||MATHEW O. NYAKOLITA & another v SIPRA AKOTH ABOKA  eKLR|
|Case History:||[Appeal from the judgment in WINAM SRMCC No.302 of 2007 delivered by: P.C. BIWOTT]|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO.31 OF 2009
EDWARD ADERO KOBE.....................................................2ND APPELLANT/DEFENDANT
[Appeal from the judgment in WINAM SRMCC No.302 of 2007 delivered by: P.C. BIWOTT]
J U D G E M E N T
The Appellants (defendants) being aggrieved by the judgment of the Senior Resident Magistrate on both liability and quantum preferred this appeal. In a memorandum of appeal lodged in court on the 3rd of March 2009 the appellants cited the following grounds:
2. That the learned trial magistrate erred in law and fact in falling to dismiss the suit against the appellants.
4. That the learned trial magistrate erred in law and fact in making award on general damages of kshs.400,000/= that was so excessive as to amount to an erroneous estimate of loss or damages suffered by the Respondent.
6. That the learned trial magistrate erred in law and fact in making an award on special damages of Kshs.2000/= which was not proven.
8. That the learned trial magistrate’s decision albeit a discretionary one was plainly wrong.
Grounds 2, 3, of the grounds of appeal was also abandoned.
In opposing the appeal learned counsel for the Respondent submitted that there was no evidence adduced by the appellants to rebut that of the Respondent. Further that the evidence of PW2 and PW3 was in support of the issue of liability. Further that the issue of ownership was proved. It was his submission that the award was not excessive and was justifiable.
In determining the issue of liability and quantum this being the first appellate court the court will consider, evaluate and analyse the evidence on record in order to arrive at an independent decision.
In paragraph 6 of the plaint the Respondent gave particulars of injuries as:
(b) injury to the left arm;
She gave particulars of special damages as:
(b) filing P3 forms Kshs. 500/=
Total Kshs. 2,500/=
The first plaintiff’s witness (PW1) was Dr. Olima who examined the Respondent and prepared a medical report which he produced in evidence.
The defence did not adduce any evidence.
Having summarized the case as above and having considered the evidence before court and authorities cited both at the trial level and at the hearing of the appeal the question for consideration is whether this court has good grounds to interfere with the findings of the trial court and the award of general damages.
The defendants indeed filed a statement of defence on the 30th of October, 2007 but that in the absence of evidence in support remains mere allegation and of no evidential value to the court. See case of……………………..
There was no evidence to rebut the allegations of negligence attributed to the driver by the plaintiff and her evidence therefore remains. This court is in total agreement with the trial court that the issue of liability was proved on a balance of probability that the 1st appellant (1st defendant) was negligent and therefore both the 1st and 2nd appellant are liable. This court therefore has no basis to interfere with the trial court’s finding to the contrary the same is affirmed.
It has been held severally that an appellate court should not interfere with an award of damages unless the same is so inordinately high or inordinately low and that the Judge proceeded on wrong principles. See the case of Baston Ahmed Butt versus Umais Ahmed Khan [1982-88] 1KAR.
From the foregoing therefore the appeal is hereby dismissed with costs to the respondent.
…………………………..Counsel for appellants