Woman loses Sh11m road accident award

By Everlyne Judith Kwamboka | 3yrs ago | 4 min read

A woman will lose millions of shillings awarded for injuries she suffered in a road accident after a top court threw out her appeal. Appellate Court judges Daniel Musinga, Patrick Kiage and Martha Koome upheld a decision by High Court Judge Francis Tuiyot entered on July 14, 2016 that reduced a payout of Sh11.4 million to Sh2 million.

"At the date of filing the suit, the pecuniary jurisdiction of a chief magistrate was up to Sh7 million. Although the suit was filed in a chief magistrate's court, the appellant’s advocate did not raise any objection when the suit was assigned to a resident magistrate, whose pecuniary jurisdiction was up to Sh2 million,” reads part of the Court of Appeal judgement.

Pelezia Salim was involved in an accident on March 7, 2012 that left her with injuries described by the doctor who attended to her as severe. In 2013, she filed a claim at the chief magistrate’s court against the late politician John Keen’s son, Somoire Keen, J Keen Transporters and Somon Transporters. A judgement on liability against Somoire and the two transport companies was entered by consent.

In the consent, 80 per cent liability was apportioned to the three defendants and the court was asked to assess the quantum of damages payable. Resident Magistrate Christabel Agutu delivered her judgement on December 19, 2013 in which she awarded Pelezia Sh2 million in general damages, Sh9.36 million for loss of future earnings and Sh125,336 in special damages. Pelezia was also granted costs of the case, and would be paid interest at court rates.

Aggrieved by the decision, Somoire and the two companies challenged the award before the High Court, saying the magistrate erred in awarding Sh2 million in damages. They also argued that the magistrate erred in awarding a total amount outside the court's Sh2 million limit. Justice Tuiyott set aside the Sh11.4 million award and instead capped the award of damages at Sh2 million, which was broken down into Sh125,336 in special damages and Sh1,874,664 in general damages.

Pelezia lodged an appeal where she argued that Justice Tuiyott erred by allowing technicalities to win over substantial justice. She said the judge had failed to appreciate that even though the trial court lacked the pecuniary jurisdiction to award the Sh11.4 million, the High Court had powers under the Civil. Procedure Rules to order a retrial.

The Appellate Court was told that the allocation of files to magistrates in a station was an administrative function and Pelezia could not be faulted for the fact that her matter was allocated to a resident magistrate instead of a chief magistrate, whose award limit was capped at Sh7 million at the time. But Justice Musinga dismissed the appeal, saying Justice Tuiyott did not rely on technicalities. The judge, he noted, had simply applied the text of the law in upholding the respondents’ contention that the trial magistrate had no pecuniary jurisdiction to award Sh11.4 million.

The judge said even if the matter was allocated to the resident magistrate administratively, "the act of hearing is a judicial function and every court must first ascertain whether it has jurisdiction before embarking on hearing a suit. No matter how serious the appellant’s injuries were, the trial magistrate ought to have been alive to the basic law that she could not award any shilling beyond her pecuniary jurisdiction as a resident magistrate, even if the suit had been filed in a chief magistrate's court."

Justice Koome said the fact that the suit was filed before the chief magistrate’s court whose jurisdiction was Sh7 million at the time could not help the woman’s case as the judgement and decree issued were beyond the jurisdiction of both the trial court and the chief magistrate.

Justice Kiage, however, said the High Court ought to have left the award of general damages undisturbed or, at the very least, remitted the file to the chief magistrate’s court for re-assessment of general damages.