Bishar Ali v Dismus Kamau Mwangi & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU (CORAM: CHERERE-J) CIVIL APPEAL NO. 195 OF 2017 BETWEEN BISHAR ALI.................................................................................APPELLANT AND DISMUS KAMAU MWANGI..........................................1ST RESPONDENT VERONICAH KAMINJA...............................................2ND RESPONDENT (Being an Appeal from the Judgment and Decree in Kikuyu CMCC No. 358 of 2015 by Hon. G. Onsarigo(RM) on 16 th November, 2017) JUDGMENT 1. BISHAR ALI (hereinafter referred to as Appellant) sued DISMUS KAMAU MWANGI and VERONICAH KAMINJA (hereinafter referred to as Respondents) in the lower court claiming damages for personal injuries he suffered on14th May, 2015 when he was allegedly knocked down by the 2nd Respondent’s motor cycle number KMCU 908Q which the 2nd Respondent allegedly rode negligently. 2. The Appellants filed a joint statement of Defence denied the claim and/or blamed the Appellant for contributing to the accident. 3. In a judgment delivered on 16th November, 2017, the trial court apportioned liability at 50%:50% as against both Respondents and awarded damages in the sum of Kshs. 700,000/-. The Appeal 4. The Appellants being dissatisfied with the lower court’s decision preferred this appeal and on 15.12.17 filed the Memorandum of Appeal dated 11.12.17 which mainly faults the Learned Magistrate for apportioning liability equally. 5. This appeal was argued by way of written submissions. In further exposition of the appeal, both parties cited various authorities. Analysis and Determination 6. This being the first appellate court, its duty is to re-evaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another –Vs- Associated Motor Boat Co. Ltd. & Others 91968) EA, 123). It then behooves this court to summarize the evidence that was tendered before the trial court. 7. In addition, the Court of Appeal in Ndiritu _ Vs – Ropkoi & Another EALR 334 O’Kubasu, Githinji & Waki JJA, held that the appellate court should be slow to differ with the trial court and should only do so with caution and only in cases where the findings of fact are based on no evidence, or a misapprehension of evidence, or where it is shown that the trial court acted on wrong principles of law in arriving at the findings he did. 8. I have perused the entire record of appeal and considered the submissions of counsels for both parties. I note that the appeal revolves around liability. 9. The Appellant testified that he was walking off the road when the accident occurred. A police officer who testified stated that the 1 st

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