John Njoroge Nyangunu v Robert Gachuru Kahara & 1 other

3. The Appellant entered appearance and filed a statement of defence dated 5th June 2023. The Appellant denied the averments in the Plaint. The Appellant denied the occurrence of the accident and particularized negligence on the part of the driver of motor vehicle registration no. KCC 191A and urged the court to dismiss the suit. Evidence Respondent’s case 4. On 8th August 2023, the 1st Respondent (PW1) testified and adopted his witness statement dated 21st October 2022. He also produced as exhibits documents listed on the Respondents list of documents dated 21st October 2022 as PExbts 1-9 respectively. He stated that the deceased was his son whom he depended on and at the time of death the deceased was in good health. He was a student at Moi Technical School undergoing Locomotive engineering course at Diploma level. 5. PW2 was PC Too from Athi River Police Station. He testified and stated that the accident was reported at the station and documented. He stated that the deceased was a passenger aboard motor vehicle registration no. KCC 191A which collided with motor vehicle registration no. KBS 925V as a result of which the deceased died. He referred to the police abstract (PExbt.3). 6. The Respondents’ case was then closed. Appellant’s case 7. DW1 was Peter Mwaniki Kahoro, the Appellant's driver who adopted his witness statement dated 10th July 2023. He stated that he was driving motor vehicle registration no. KBS 925V when the accident occurred. He stated that the driver of motor vehicle registration No. KCC 191A died as result of the accident. That he did not blame the deceased and that he didn’t do anything to avoid the accident. He didn’t sue the owner of motor vehicle KCC 191A. 8. DW2 was John Njoroge who adopted his witness statement dated 10th July 2023. He testified and stated that he is the owner of motor vehicle registration No. KBS 925V and he was called and notified of the accident. His driver had testified. He wasn’t there when the accident occurred. He had not instituted Third Party Proceedings against the owner of motor vehicle KCC 191A. He didn’t blame the deceased. 9. DW3 was David Mwaura, the investigator with the Appellant’s Insurance Company. He stated that he was instructed on 17th May 2023 and he had filed a report. His findings were that motor vehicle registration No. KBS 925V 2C 8317 was being driven along Mombasa Road at while at Top Tank Area, motor vehicle registration No. KCC 191A caused the accident as a result of which there were fatalities. He didn’t visit the scene but relied on information from parties and the driver. The Appellant’s case was closed. 10. Parties thereafter filed written submissions in support of their respective cases which the trial court considered and, in a judgment, delivered on 14th November 2023, the court found in favour of the Respondents in the following terms: a. Liability 100% b. Pain and suffering Kshs.50,000/= c. Loss of expectation of life Kshs.100,000/= d. Loss of dependency Kshs.1,252,270/= https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14416/eng@2025-01-30 2

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e. 11. Special damages Kshs.140,050/= Being aggrieved by the said judgment, the Appellant lodged the appeal herein basically challenging both liability and quantum. Analysis and determination 12. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to reevaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424. 13. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 14. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion 15. I have perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited and attached, I will proceed to consider whether the trial court’s findings on liability and quantum should be disturbed on this appeal. Liability 16. I notice that the Appellant at grounds b), c) and d) of the Memorandum of appeal seems to be stating that the Trial Magistrate erred in fact and in law by apportioning 100% liability to the Respondents. I will assume the Appellant meant the reversal. The Appellant argues that there being a Third Party motor vehicle that was blamed for the fatal accident, the Trial Magistrate should be faulted for apportioning 100% liability against the Appellant. The record shows that the Appellant did not institute Third Party proceedings against the owner of motor vehicle KCC 191A despite the fact that his Insurance Company had instructed an investigator who had prepared a report in which he found the said motor vehicle to blame. The said owner of motor vehicle KCC 191A was not a party to the suit before the trial court and neither is he a party in this appeal thus no orders can issue against him in the circumstances and in his absence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14416/eng@2025-01-30 3

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17. Order 1 Rule15(1) of the Civil Proceedings Rules states as follows: “ 15. (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party) — a. that he is entitled to contribution or indemnity; or b. that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or c. that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit” 18. Pursuant to aforesaid, a defendant can only enjoin another person to a suit as a third party where that person is not already a party to that suit. This is because third party proceedings are where a defendant in an action has a claim for indemnity or contribution from a third party. The claim is separate from the main claim but has links and/or is connected to the plaintiff's claim against the defendant. 19. In that respect the High Court the case of; Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR, stated that; “ In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules. 20. Guided by the above, it is my finding that the Appellant ought to have enjoined as a third party the said owner of motor vehicle KCC 191A to the suit and thus the trial Magistrate cannot be faulted on his finding on liability as he did. The appeal on liability must therefore fail. Quantum 21. The Appellant at ground (g) of the Memorandum of Appeal states that the Learned Magistrate erred in law and in fact in awarding excessive and exorbitant damages to the Respondents and invites this court to disturb the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14416/eng@2025-01-30 4

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22. This court is alive to the fact that in an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”. 23. I have considered the awards of damages made under the various heads by the trial court and the authorities that were relied upon. It is not disputed that the Deceased was aged 25 years at the time of his death. The trial court observed that the deceased was a blacksmith within Mavoko area which again was not disputed by the Appellant. Applying Legal Notice 2 of 2019 which provided for a minimum wage bill at Mavoko area as Kshs.12,522.70 and adopting a multiplier of 25 years and a dependency ratio of 1/3, the trial court awarded Kshs.1,252,270.00 under loss of dependency. 24. The adoption of the of the multiplier approach fell within the discretion of the Learned Magistrate. Accordingly, he cannot therefore be faulted for exercising his discretion in the manner that he did. 25. Again, I don’t see any reason to disturb the quantum of damages as was awarded by the trial magistrate as the same were correctly and justly awarded. 26. Accordingly, I find that the appeal herein lacks in merit and is hereby dismissed with costs. 27. It is hereby so ordered. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 30TH JANUARY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH JANUARY 2025 In the presence of : ................ for Appellant .............. for Respondent Milly Grace............ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14416/eng@2025-01-30 5

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