Court upholds Sh2.4m award for Nithi tragedy

The High Court in Chuka has dismissed an appeal by Tharaka Nithi county against a Sh2.4 million award for a fatal 2020 accident.

Justice Roselyne Lagat-Korir upheld a lower court's decision that held the county liable for a road accident that resulted in the death of Mercy Kananu.

Kananu, 22, was struck by a county vehicle near the Nithi Bridge along the Chuka-Meru road.

Oscar Kirunja, representing the deceased, sued the county for general and special damages.

The lower court, presided over by Chief Magistrate Joyce Gandani, found the county liable and awarded Sh1.5 million for loss of dependency, Sh694,650 in special damages, Sh100,000 for loss of expectation of life and Sh30,000 for pain and suffering.

Aggrieved by this decision, the county government lodged an appeal, arguing that the negligence of their driver was never proven.

In their petition, the county denied negligence arguing that the deceased should have used a designated pedestrian crossing at what it described as a known blackspot.

The county further suggested that if liability were to be found, a significant share should be apportioned to the deceased for contributory negligence.

“The appellant submitted that the burden of proof lay with the respondent who did not call an eye witness yet he was not present at the scene of the accident,” court records show.

“That the respondent did not produce the police abstract which would have been a confirmation that the accident occurred nor did he call an investigating officer.”

Kirunja held that despite not producing the abstract, he had presented documents and eyewitness testimony that linked the county’s vehicle to the scene.

“The respondent further submitted that he had produced documents which contained material particulars ordinarily captured in a police abstract which documents when taken together provide cogent and sufficient proof of the occurrence of the accident and the involvement of the appellant’s vehicle.”

Justice Lagat-Korir found that the county had failed to provide any evidence to support its claims of contributory negligence.

The judge noted that while the county pleaded the defence of ‘volenti non fit injuria’, they closed their case without calling a single witness to rebut the respondent's testimony.

The doctrine of volenti non fit injuria holds that if someone voluntarily and knowingly places themselves in a position where harm might result, they cannot sue for the resulting injury.

“The respondent’s evidence, though not supported by a police abstract or investigating officer, was coherent and uncontroverted and it established, on a balance of probabilities, that the accident was caused by the negligence of the appellant’s driver,” Justice Lagat-Korir said.

“In the premises, I find no error in the trial court’s finding on liability. The respondent discharged the burden of proof and in the absence of any rebuttal or evidence of contributory negligence, the apportionment of liability at 100 per cent against the appellant was warranted.”

Regarding the financial awards, the court found the Sh1.5 million for loss of dependency justified, despite the lack of formal payslips.

“The appellant submitted that it was clear that the deceased died at the age of 22 years survived by her parents and that there was no proof of income…It is recognised that parents were entitled to expect support from their children and such expectation forms a proper basis for an award under this head.”

The judge also upheld the trial court’s award for pain and suffering.

“The trial court awarded Sh30,000 for pain and suffering…The appellant proposed a sum of Sh10,000, while the respondent supports the trial court’s award as being reasonable.

“In the premises, given that the deceased died at the scene and there is no evidence of prolonged suffering, the appropriate award under this head ought to be nominal. The award of Sh30,000 was within range and so upheld.”

Justice Lagat-Korir concluded the matter by affirming the lower court's judgment and awards and finding the appeal has no merit, dismissed it with costs to the respondent.