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|Case Number:||Civil Appeal 122 of 2011|
|Parties:||Ismail Mohamed Ahmed v Edwin Odhiambo|
|Date Delivered:||17 Oct 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Ismail Mohamed Ahmed v Edwin Odhiambo  eKLR|
|History Advocates:||Neither party represented|
|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|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL 122 OF 2011
ISMAIL MOHAMED AHMED …………………………………. APPELLANT
V E R S U S
EDWIN ODHIAMBO ………………………………………… RESPONDENT
“(a) The Honourable Magistrate erred in law and fact by
holding the Appellant liable against the weight of the
evidence in SRMCC No. 2410 of 2009.
“An appeal from the High Court is by way of a retrial and the Court of Appeal is not bound to follow the trial Judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally……..”
I will however consider the caution stated in the case PETER -VS- SUNDAY POST LTD  E.A. 424 where the Court had this to say-
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide…”
a pedestrian and he was hit by the Appellant's vehicle which veered off the road and hit him when he was off the road. The trial Magistrate's finding that the Appellant was 80% liable for the accident cannot be in the light of that evidence be faulted. I could not find any mention by the Respondent that the Appellant stopped 2 metres ahead of the scene of the accident. That statement is not supported by the evidence before the trial Court. Even if the Respondent had made that statement it would not make any difference because as I understand the evidence of the Respondent is that the Appellant was not necessarily driving at a high speed but rather that he veered off the road and therefore caused the accident. The appellant's ground in respect of liability is therefore rejected.
1992. The Court in that case awarded the Plaintiff Kshs. 650,000/- for a fracture of the skull. This case was determined in 1999. The second case is MAHINDER SEMBI -VS- A.G. NBI HCCC NO. 817 OF 1993. This was determined in the year 2000. The Court in that case awarded Kshs. 500,000/- for a fracture of the fauma.
Dated and delivered at Mombasa this 17th day of October, 2013.