Richard Kieti Kathuu v Jane Musee

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CIVIL APPEAL NO. 25 OF 2016 RICHARD KIETI KATHUU..............................................APPELLANT VERSUS JANE MUSEE..................................................................RESPONDENT (Being an Appeal from the Judgment in Mwingi Senior Resident Magistrate’s Court Civil Suit No. 52 of 2012 by G. W. Kirugumi R M on 04/07/16) JUDGMENT 1. Jane Musee, the Respondent herein sued Richard Kieti Kathuu, the Appellant and another. He was sued in his capacity as the user, beneficial and/or insured owner of the motor-vehicle registration number KAJ 968C, Nissan Datsun Minibus Matatu (subject motorvehicle) that the Respondent was travelling in. The claim was for special damages in the sum of Kshs. 2,500/=, general damages, costs and interest at Court rates. 2. It was pleaded that on or about the 2nd day of May, 2012 at about 3,00 p.m., the Respondent was travelling aboard the subject motorvehicle when it was involved in a road traffic accident. She blamed the driver of the motor-vehicle for negligence. 3. In his statement of defence, the Appellant denied the occurrence of the accident in the manner described in the Plaint, he denied the alleged negligence on his part and averred that if the Respondent suffered injuries she was to blame for failing and/or neglecting to fasten the safety belt, hanging on the door and pulling the hand of her husband and jumping off a moving motor-vehicle. 4. The learned trial Magistrate considered evidence adduced and used Civil Suit No. 52 of 2012 (Now HCC.A No. 26 of 2016) as a test suit where liability was apportioned at 50:50%. It was opined that the Respondent contributed to the accident by jumping out of the motorvehicle. 5. On quantum of damages the Court awarded damages of Kshs. 100,000/= in general damages which was apportioned at Kshs. 50,000/= and Kshs. 7,500/= in special damages. Plus costs and interest. 6. Aggrieved by the Judgment, the Appellant appealed on the following grounds: The case was not proved to the required standard, apportioning liability at 50:50% after observing that the Respondent had contributed to her own injuries was erroneous; That the learned Magistrate erred in disregarding the P3 and relying on a Medical Report that was prepared by an unqualified Medical Officer; The case was fabricated and full of contradiction; The doctrine of “res ipsa loquider’ was not applicable; damages awarded were excessive; and the learned Magistrate was biased by disregarding the Appellant’s evidence. 7. The Appeal was canvassed by way of written submissions that I have duly considered. 8. As stated in the test suit (HCC.A 26 of 2016) I reiterate my duty to re-evaluate the evidence, assess and make my own conclusions as stated in the case of Selle vs. Associated Motor Boat Company Ltd (1968) EA 123 at 126. 9. On liability, I set aside the decision of the learned trial Magistrate apportioning liability and substitute it with an order holding the Appellant and his Co-Defendant in the Lower Court, jointly and severally 100% liable for the accident. 10. On quantum, at the outset, the Respondent was seen at Mwingi District Hospital. She adduced in evidence treatment notes issued. Subsequently a P3 form was filled at Matuu District Hospital based on the treatment notes. The only injury sustained by the Respondent was a swollen left lower limb. This was in contrast with what the findings of the questionable “Daktari Gitau” who opined that she

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