Man loses appeal for damages after changing storyline

The High Court in Migori has dismissed an appeal filed by a man who sought damages following a road traffic accident.

Benard Okomo Awili had approached the court after his claim for general and special damages was dismissed by a Rongo magistrate court. 

Dissatisfied with the outcome, he filed an appeal, arguing that the trial magistrate had erred in her findings on liability and had awarded an inordinately low amount in general damages.

Awili sustained injuries in an accident involving the motor vehicle in which he was a passenger and an unregistered tuk-tuk. 

While he initially blamed the driver of the vehicle he was travelling in for the crash, he changed his testimony during cross-examination.

The twist took blame away from the respondents and toward a third party—the driver of the tuk-tuk. 

This version of events was supported by the testimony of Police Constable Dickson Agumba, who said the accident occurred on the matatu's right lane and blamed the tuk-tuk driver for the collision. 

This aligned with the finding that no evidence had been tendered to demonstrate negligence on the part of the respondents.

The contradiction in testimony proved fatal to Awili's appeal

Justice Kiarie Waweru, in his judgment, upheld the decision of the trial court which had found that Awili had failed to establish fault on the part of the respondents.

The judge noted that Awili's failure to pin the blame on the specific defendants meant that no legal remedy could be granted.

"The plaintiff must prove some negligence against the defendant where the claim is based on negligence," the judge said.

As such, the court concluded the trial magistrate’s finding on liability could not be faulted.

Concerning injuries, the appellant had sustained tenderness on the chest, bruises on lower knee joints and bruises on the left leg. 

The trial magistrate had indicated that had liability been established, she would have awarded Sh30,000 in general damages. 

Justice Kiarie found this figure excessively low.

“If liability had been proven, I would have awarded Sh100,000.” 

However, since the question of liability was resolved against the appellant, this observation did not alter the outcome. 

The judge found that the appellant’s own evidence left the court with no choice but to uphold the dismissal. 

The appeal was dismissed with costs.