ABBAY ABUBAKAR HAJI PATUMA ALI ABDULLA vs FREIGHT AGENCIES LTD [1984] KECA 14 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if evidence can't show a driver was negligent, courts cannot split blame equally just to help an accident claim succeed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants proved on a balance of probabilities that the Datsun and the Daihatsu collided and that the respondent's driver was negligent
- 2.Whether, where the evidence relating to a traffic accident is insufficient to establish negligence, the court must find the drivers equally to blame
- 3.Whether the trial judge erred in law in dismissing the claim, in disregarding the evidence of IP Ombalo, and in refusing to allow CIP Waigwa to give opinion evidence on the point of impact
Key legal issues
#Whether equal apportionment of blame is mandatory where evidence of negligence is insufficient
It is not; equal apportionment applies only where both drivers are proved to have been negligent. Where there is a lack of evidence of negligence, no finding against either party can be made.
The court applied Spry V-P's dictum in Lakhamshi: in most traffic cases an inference of negligence can be drawn on a balance of probabilities, and where both are negligent but blame cannot be distinguished, it may be divided equally. But where there is no evidence that a party was negligent and none from which negligence can be inferred, no such finding is possible. The trial judge rightly declined to treat the equal-apportionment line of authority as mandatory.
Whether the respondent's driver's negligence was proved on the evidence
It was not. The cause of the accident was so speculative that no reasonable and probable inference of negligence by either driver could be drawn; the evidence supported only that the Datsun struck one of the three cows.
There was no direct evidence of a collision between the two vehicles and none from which negligence could be inferred. Multiple hypotheses were consistent with the physical evidence, including the Daihatsu striking a cow already on the road. Romer LJ's approach in Baker v Market Harborough was applied: where the evidence is so meager that any explanation would be purely speculative, the plaintiff's case is not proved.
Whether the trial judge erred in his treatment of the police witnesses' evidence
Although the trial judge's treatment of CIP Waigwa's evidence was 'rather cavalier' and opinion evidence of how the accident happened would have been admissible, the outcome was correct because the evidence remained incapable of supporting an inference of negligence.
It would have been in order for the witnesses to say what their training, experience and observation of the scene suggested about how the vehicles came to be where they were, and the judge would then give appropriate weight to such testimony. However, even Hancox JA, while criticising the exclusion of Waigwa's opinion evidence, agreed with the conclusion that the appeal must be dismissed.
Legal principles established
#- It is not settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame; equal apportionment applies only where both are proved negligent but the degree of blame cannot be distinguished.
- Where there is a lack of evidence, as opposed to conflicting evidence, a party cannot be found negligent because there is no evidence that he was in fact negligent and negligence cannot properly be inferred from the circumstances of the accident.
- A court has a clear duty to arrive at a finding on the facts, however difficult the circumstances, if that is at all possible, and cannot shrink from a conclusion simply because the evidence is deficient in some respects.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment reviewing the evidence of the scene, the application of Lakhamshi v Attorney-General, and concluding that no reasonable and probable inference of negligence by either driver could be drawn; would dismiss the appeal with costs.
In these circumstances the cause of the accident is so speculative that no reasonable and probably inference can be drawn, in my view, that either driver was at faultp. 4
Wrote the judgment
Wrote a separate concurring judgment. Reviewed the authorities including Baker v Market Harborough and Lakhamshi, holding Spry V-P's remarks on lack of evidence were obiter but apposite; agreed with Kneller JA that the appeal be dismissed with costs.
In those circumstances I find myself in complete agreement with Kneller J A whose judgment I have had the advantage of reading in draft.p. 5
Wrote the judgment
Wrote a separate concurring judgment setting out the grounds of appeal and the evidence, holding that where there is no evidence establishing negligence by any party, blame cannot be apportioned equally; would dismiss the appeal.
The trial judge recognized that and so held. He was right on the facts and in law. I would dismiss the appeal.p. 7
- On appeal from
- High Court of Kenya at Mombasa
- Civil Case No. 149 of 1982
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (not expressly stated in the judgment)
Relief refused
#Judgment for the appellants on liability against the respondent, or alternatively apportionment of blame equally between the drivers
The cause of the accident was so speculative that no reasonable and probable inference of negligence by either driver could be drawn from the evidence
Remittal to the High Court
Both advocates asked the court not to remit the matter to the High Court for any purpose
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons, therefore, I would dismiss the appeal with costs, and as Hancox, J A and Nyarangi, Ag J A agree it is so ordered.
It is not settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame.
In these circumstances the cause of the accident is so speculative that no reasonable and probably inference can be drawn, in my view, that either driver was at fault
There can be no doubt that it is the clear duty of a court to arrive at a finding on the facts, however difficult the circumstances may be, if that is at all possible.
Issues in the judgment
#Hancox JA's separate judgment is dated 'the 31st day of January, 1983' while the other two judgments are dated 31 January 1984; the 1983 date appears to be a typographical error in the judgment.
The judgment contains a garbled/self-correcting passage in Kneller JA's judgment repeating the same clause twice within one sentence.
The registration number of the Daihatsu saloon is given inconsistently as KVY 672 in the main judgments and KBY 672 in Nyarangi, Ag. JA's judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mukhwana v Ali (Civil Case E406 of 2025) [2026] KEMC 707 (KLR)[2026] KEMC 707 (KLR)4 Aug 2026applied
- Masoso v Ena Investments Ltd (Civil Case E180 of 2025) [2026] KEMC 757 (KLR)[2026] KEMC 757 (KLR)28 Jul 2026applied
- Waweru v Kyoga Hauliers (K) Ltd & another (Civil Case E144 of 2025) [2026] KEMC 750 (KLR)[2026] KEMC 750 (KLR)21 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "ABBAY ABUBAKAR HAJI PATUMA ALI ABDULLA vs FREIGHT AGENCIES LTD [1984] KECA 14 (KLR)", Case Analysis (1984). Not stated in judgment (appeal from Mombasa High Court Civil Case No. 149 of 1982). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/14/eng@1984-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.