Gideon Gitau Ndatha v Rosaline Mary Osborn [1988] KECA 6 (KLR)
The bottom line
#A Kenyan court dismissed an injured pedestrian's claim because he couldn't prove the driver's negligence caused his injuries.
What this practically means
#Executive summary
#Key legal issues
#Weight to be given to a plaintiff's inconsistent versions of how an accident occurred
The appellant's three differing accounts, and the respondent's account being consistent with his original police statement and medically corroborated, justified the trial judge in preferring the respondent's version
The appellant gave at least three versions: evidence at trial that he was knocked from behind while walking; a police statement that a vehicle coming from the opposite direction hit him while he stood aside; and a statement to Dr Shah that a passing car knocked him while standing. The respondent's account matched the appellant's original police statement and medical evidence of injuries on the left lower limb was unchallenged. The judge was entitled to prefer the respondent's version.
Causation - whether negligence by the defendant was established
Despite severe injuries, the appellant failed to prove the injuries were caused by any negligence of the respondent
The evidence showed the appellant suddenly moved towards the respondent's car with his hands in the air; she braked but could not avoid him. No evidence supported the suggested negligence of driving a considerable distance or at excessive speed. The claim failed on causation notwithstanding the admitted severe injuries.
Effect of failure to reply to allegations of negligence in a defence
Where no reply is filed, allegations of fact in the defence are deemed admitted under Order 6 rule 9(1)
The appellant filed no reply to the defence alleging his own negligence. Under Order 6 rule 9(1), untraversed allegations of fact are deemed admitted. The court noted the appellant was counsel-represented, so ignorance of the rules did not arise.
Legal principles established
#- Allegations of fact made in a party's pleading which are not traversed by the opposite party are deemed admitted under Order 6 rule 9(1) of the Civil Procedure Rules
- On a first appeal the court reviews the evidence as a whole, and where the trial judge's preference for one account of events is plainly supportable on the evidence, the appeal court will not interfere
- Proof of injury alone is insufficient; the plaintiff must show on evidence that the injuries were caused by the defendant's negligence
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the High Court dismissing the appellant's claim in damages for personal injuries
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gideon Gitau Ndatha v Rosaline Mary Osborn [1988] KECA 6 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/6/eng@1988-12-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.