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Court of AppealAllowedNot stated in the judgment

John Fanuel Awiti Ogol v Murithi [1985] KECA 75 (KLR)

Court of Appeal of Kenya
25 June 1985
1,543 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a driver who hits a pedestrian on a marked crossing must prove they were not negligent, or automatically lose.

What this practically means

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Executive summary

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The appellant, a clinical officer, sued the respondent for negligence arising from a road traffic accident on December 2, 1977 in which he was struck by vehicle KQD 967 while crossing Haile Selassie Avenue, suffering leg fractures. The trial judge upheld a submission of no case to answer, holding that being on a pedestrian crossing was not in itself evidence of negligence. Nyarangi JA, delivering the judgment of the Court of Appeal with which Hancox JA and Gachuhi Ag JA agreed, allowed the appeal. The Court held that once the trial judge's unchallenged finding that the appellant was on a pedestrian crossing stood, an accident blameable on the respondent was disclosed, invoking res ipsa loquitur. The burden then lay on the respondent to show on a balance of probabilities that the accident was not due to his fault; it sufficed to show he was personally not negligent even if the accident remained inexplicable. Because the respondent remained silent and gave no explanation, failing to discharge that onus fixed him with negligence. The Court distinguished Hunter v Wright, where the driver had given exculpatory evidence. The Court of Appeal set aside the High Court judgment, found the respondent wholly liable, remitted the case to the High Court for assessment of damages on the basis of 100% liability, and awarded costs of the appeal and the trial to the appellant. This judgment binds subordinate courts on the shifting of the burden of proof in pedestrian-crossing accidents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether being struck while on a pedestrian crossing is prima facie evidence of negligence on the part of the driver
  2. 2.Whether the doctrine of res ipsa loquitur applied so as to shift the burden of proof to the respondent
  3. 3.Whether the judge erred in upholding the submission of no case to answer

Key legal issues

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01

Effect of an accident on a pedestrian crossing

Holding

Being on a pedestrian crossing when struck is prima facie evidence of the driver's negligence, shifting the burden to the driver.

Reasoning

The trial judge had found as a fact that the appellant was on a pedestrian crossing. Applying Cole v De Trafford, the Court held that this finding disclosed an accident blameable on the respondent. Since the respondent elected to remain silent and rely on a submission of no case to answer, he never discharged the onus of showing on a balance of probabilities that the accident was not due to his fault, and was therefore liable.

p. 3
02

Application of res ipsa loquitur and pleading

Holding

The plaint's reference to res ipsa loquitur sufficed to put the respondent on notice that the appellant relied on presumed negligence, even though the crossing was not expressly pleaded.

Reasoning

The Court held the appellant had clearly intended to rely on the circumstances of the accident, including his position on the crossing, to shift the burden. The respondent was aware from the outset. Because no evidence was called for the defence, the burden was never discharged, and the correct course was to hold the respondent liable rather than dismiss the case.

p. 2
03

Deference to trial judge's findings of fact

Holding

An appellate court must be mindful of the trial judge's advantage in seeing and hearing witnesses.

Reasoning

The Court accepted the unchallenged finding that the appellant was on the crossing, citing Sotiros Shipping. It emphasised that no misdirection in that finding was suggested, so the respondent could not argue the crossing was not proved. This grounded the shift of burden and the reversal.

p. 2

Legal principles established

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  • Once it is proved that a pedestrian was hit while on a pedestrian crossing, an accident blameable on the defendant is disclosed and the burden shifts to the defendant to show he was not at fault.
  • A defendant who relies on a no-case-to-answer submission cannot escape res ipsa loquitur; failure to give an explanation fixes him with negligence.
  • The defendant need not prove how and why the accident happened; it suffices that he shows he was personally not negligent even if the accident remains inexplicable.

Court orders

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  1. 1.The appeal is allowed and the judgment of the High Court is set aside
  2. 2.The case is remitted to the High Court for the judge to assess damages on the basis of 100% liability on the part of the respondent
  3. 3.Costs both here and below are given to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
First appeal to the Court of Appeal (statutory right of appeal; no specific provision stated in the judgment)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I would allow the appeal and set aside the judgment of the High Court.
p. 3Disposition
the order of this court is that the case be remitted to the High Court for the judge to assess damages on the basis of the respondent being wholly liable for the accident
p. 3Final orders
I also agree with the order of costs proposed by Nyarangi JA.
p. 3Costs
So the fact that the appellant was on a pedestrian crossing at the time of the accident is prima facie evidence of negligence on the part of the respondent.
p. 3Res ipsa loquitur / pedestrian crossings
Failure to explain and discharge the onus thus shifted fixed the respondent with negligence.
p. 3Burden of proof

Issues in the judgment

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minor

Judgment does not state the case number, the trial judge's name, or the date of the High Court decision, so the appealFrom particulars cannot be completed.

minor

The respondent is never named in the judgment, only identified by vehicle registration mark KQD 967.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Fanuel Awiti Ogol v Murithi [1985] KECA 75 (KLR)", Case Analysis (1985). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/75/eng@1985-06-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.