Abbay Abubakar Haji & another v Marair Freight Agencies Ltd [1984] KECA 57 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Inference of negligence from circumstantial evidence in traffic accidents
Negligence may be inferred where there is a conflict of evidence or an irresistible inference from the circumstances, but where there is simply a lack of evidence as to how the accident happened, no inference of negligence can be drawn and no equal apportionment can be made.
Applying Lakhamshi, the court distinguished between a conflict of evidence, where a judge must decide and may find one or both drivers negligent, and a mere lack of evidence, where no party can be held liable. The trial evidence here showed only the position and damage of the vehicles and three dead cows, leaving many speculative hypotheses, so neither driver's negligence could be established.
Equal apportionment of blame between drivers
Equal apportionment under Baker v Market Harborough is available only where it is proved that both parties were to blame and blame cannot be distributed; it is not a default rule where negligence is unproven.
Hancox JA explained that in the line of authorities relied on, it was evident that a collision had occurred near the centre of the road, enabling a finding that both drivers were negligent. Here even the fact of collision between the two vehicles was not proved, so the precondition for equal apportionment was absent.
Admissibility of opinion evidence from non-expert investigators
A witness with training, experience and observation of the scene may indicate what those suggest as to how vehicles came to be where they were, and the court will then give the testimony appropriate weight; the trial judge's exclusion of such opinion was over-rigid but not fatal to the outcome.
The court criticised the trial judge for refusing to allow the police officers and the investigator to say what their experience suggested about the accident. Although Hancox JA called the treatment of CIP Waigwa's evidence 'cavalier', all judges agreed the conclusion dismissing the claim was still correct on the evidence.
Legal principles established
#- Where there is a lack of evidence as opposed to a conflict of evidence, a party cannot be found negligent and blame cannot be apportioned equally; equal apportionment applies only where both drivers are proved to have been negligent.
- Where the cause of an accident is so speculative that no reasonable and probable inference can be drawn, negligence cannot be found against either party.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- Civil Case No. 149 of 1982
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory right of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abbay Abubakar Haji & another v Marair Freight Agencies Ltd [1984] KECA 57 (KLR)", Case Analysis (1984). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/57/eng@1984-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.