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Court of AppealPartially AllowedCivil Appeal (Mombasa)· [1989] KECA 42 (KLR)

Salim & another v Kikava (Civil Appeal 15 of 1989) [1989] KECA 42 (KLR)

Court of Appeal of Kenya
13 October 1989
3,263 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a cyclist's injury claim because his own testimony contradicted facts he had earlier admitted, confirming interest runs from judgment.

What this practically means

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Executive summary

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The first appellant, an employee of the second appellant, was driving along Nyali Road in March 1983 when his vehicle collided with the respondent, a cyclist, who suffered personal injuries and damage to his bicycle. Before the High Court the respondent obtained damages with contributory negligence apportioned 25% against him and 75% against the first appellant, plus interest from the date of suit. The appellants appealed on four condensed grounds. First, the court held, applying Robinson v Oluoch and section 4(1) of the Law Reform Act (cap 26), that a plaintiff convicted of careless riding may still sue where another party's negligence contributed to the accident; contributory negligence is a shield, not a sword. That ground failed. Second, the court re-evaluated the conflicting accounts of the accident: the respondent had admitted the prosecutor's facts before the District Magistrate, which matched the first appellant's evidence but contradicted his own trial testimony. The trial judge made no finding on which version to accept, and the court concluded the accident was wholly caused by the respondent's negligence; the contributory negligence finding against the first appellant lacked credible evidence and succeeded. Third, the award of Kshs 80,000 general damages was not found excessive. Fourth, following Prem Lata v Peter Musa Mbiyu and Mukisa Biscuit, interest on general damages should run from the date of judgment, and the judge's unreasoned order for interest from the date of filing suit was a wrong exercise of discretion under section 26(1) of the Civil Procedure Act. The appeal was allowed, the High Court judgment set aside, and the respondent's suit dismissed with costs to the appellants, who also received the costs of the appeal.

Key legal issues

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01

Whether a partly negligent plaintiff has a cause of action

Holding

Yes. Section 4(1) of the Law Reform Act (cap 26) permits a plaintiff who partly caused his own damage to recover, reduced by his share of responsibility; his conviction for careless riding does not defeat the claim.

Reasoning

The court agreed with counsel that contributory negligence is a defence and cannot be used as a sword, but rejected the submission that a partly negligent claimant cannot sue. It relied on Robinson v Oluoch, which held it proper for a person convicted of a negligence offence to allege another's negligence in civil proceedings, and on section 4(1) of the Law Reform Act, identical to the English Law Reform (Contributory Negligence) Act 1945, as explained in The Miraflores and the Abedesa.

02

Whether the finding of contributory negligence against the first appellant was sustainable

Holding

No. The respondent's trial account contradicted the facts he admitted before the magistrate; the first appellant's account matched those admitted facts, showing the respondent wholly to blame.

Reasoning

There were three conflicting accounts of the accident. The trial judge made no finding on which version he accepted. The Court of Appeal, re-evaluating the evidence, found the first appellant's version, which mirrored the prosecutor's summary admitted by the respondent before the District Magistrate, more consistent with the truth, and that summary disclosed no negligence by the first appellant. The contributory negligence finding was therefore without factual basis and erroneous.

p. 4
03

Whether the award of Kshs 80,000 general damages was excessive

Holding

No. The court found no error in the quantum awarded for the injuries sustained.

Reasoning

Comparing the injuries and comparable awards, the court was unable to say the judge fell into error in awarding Kshs 80,000. However, this ground became academic since the appeal succeeded on liability and the suit was dismissed in its entirety.

p. 4
04

Whether interest on general damages could run from the date of filing suit

Holding

No. Interest on general damages runs from the date of judgment/assessment; the judge gave no reasons for departing from this and wrongly exercised his discretion under section 26(1) of the Civil Procedure Act.

Reasoning

Under section 26(1) of the Civil Procedure Act the award of interest from date of suit to date of decree is discretionary but must be exercised judicially. Following Prem Lata v Peter Musa Mbiyu and Mukisa Biscuit, interest on general damages should be from judgment, and on special damages only where actually expended before suit. The judge gave no reasons, and the special damages items had not been paid by the date of filing suit, making the order unsupportable.

p. 6

Legal principles established

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  • A person convicted of an offence involving negligence may still sue for damages caused partly by another's negligence, subject to apportionment under section 4(1) of the Law Reform Act; contributory negligence is a shield, not a sword.
  • Interest on general damages should be awarded from the date of judgment/assessment, not from the date of filing suit; the discretion under section 26(1) of the Civil Procedure Act must be exercised judicially and with reasons.
  • A first appellate court, and a trial judge faced with conflicting accounts of an accident, must make a finding as to which version it accepts before adjudicating on negligence.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the High Court set aside
  3. 3.Respondent's suit dismissed with costs
  4. 4.Appellants awarded the costs of the appeal
On appeal from
High Court
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the High Court (statutory appeal; no specific provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Salim & another v Kikava (Civil Appeal 15 of 1989) [1989] KECA 42 (KLR)", Case Analysis (1989). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/42/eng@1989-10-13

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