Judith Medza Dofu (Suing as the wife and Personal Representative of the Estate of Isaac Galowe Kulola (Deceased) v China Road & Bridge Corporation Kenya [2021] KEHC 5556 (KLR)

Facts

On 5.6.2016, the deceased Isaac Gatwe Kuhola was involved in a road traffic accident with motor vehicle KCD 260J registered in the name of the Respondent. The appellant, Judith Medza Dofu, applied for grant of letters of administration intestate.

Issues

1. Whether the learned magistrate erred in law and fact in his failure to appreciate the Plaintiff's evidence and not taking the same into consideration.
2. Whether the learned magistrate erred in law and fact in finding that the Plaintiff failed to discharge the burden of proof because she did not witness the accident.
3. Whether the learned magistrate erred in law and fact in finding the Plaintiff did not prove the motor vehicle KCD 260J was the one which caused the accident.
4. Whether the learned magistrate erred in law and fact in disregarding the evidence of Plaintiff witness number 2 in arriving at the decision.
5. Whether the learned magistrate erred in law and fact in finding the Plaintiff did not prove the motor vehicle KCD 260J was the one which caused the accident.
6. Whether the learned magistrate erred in law and fact in disregarding the Plaintiff's evidence yet the Defendant did not offer any evidence to the contrary.
7. Whether the learned magistrate erred and misdirected herself in awarding low general damage of Kshs.720,000/= for the fatal accident the Plaintiff suffered which amount is excessively low in the circumstances and which amount is an erroneous estimate of the loss/damage suffered by the Respondent.

Reasoning

The court held that the appellant failed to prove the elements of liability on a balance of probabilities. The court also found that the learned magistrate did not err in her decision regarding the award of damages.

Outcome

Appeal dismissed

Authorities cited