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Court of AppealAllowedCivil Appeal No. 110 of 1986

LIVINGSTONE OTUNDO vs NAIMA MOHAMOUD (A MINOR WHO HAD SUED THROUGH HER NEXT FRIEND MOHAMOUD ALI) [1990] KECA 26 (KLR)

Court of Appeal
13 March 1990
1,972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a driver is only negligent if they failed to act as a reasonable person, not simply because an accident happened.

What this practically means

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Executive summary

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The appellant was driving at 25 km/h along a heavily populated residential road in Eastleigh, Nairobi, when a five-year-old child dashed from among pedestrians and knocked herself against his vehicle's left mudguard. The trial judge (Abdullah, J.) accepted that the appellant was not speeding but nonetheless found him liable in negligence for failing to keep a greater look-out for children in a residential area, awarding general damages of Shs. 35,000/-. The appellant appealed on liability and quantum. The Court of Appeal (Gachuhi, Gicheru and Kwach, JJ.A.) held that although a driver in such an area owes a duty to keep a proper look-out for children who might dash into the road, the extent of that duty is measured by the reasonable man standard: what he ought reasonably to have anticipated and what course of action he could have taken to avoid the accident. A greater obligation would impose an impossible burden, contrary to the authority of Moore (An Infant) v. Payne (1975) RTR 127, which the court followed. The appellant's evidence - that the child appeared suddenly and unseen, and that he braked immediately - was uncontroverted, and the trial judge had not considered what action the appellant could have taken. The court therefore found the appellant not negligent, allowed the appeal, set aside the High Court judgment, and dismissed the respondent's suit with costs in both courts. The quantum issue did not fall for determination.

Questions the Court framed

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

  1. 1.Whether the standard of care applied by the trial judge in holding the appellant liable in negligence was correct in law, or whether it imposed an impossible burden on the motorist
  2. 2.Whether the appellant, driving at a low speed in a heavily populated residential area, could be held liable merely because a child dashed into the road
  3. 3.Whether the appeal on quantum of damages required determination

Key legal issues

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01

Standard of care for a driver in a residential area where children may dash into the road

Holding

The appellant's duty was to be judged by what he ought reasonably to have anticipated and what course of action he could have taken to avoid the accident; the trial judge's holding imposed an impossible burden and could not stand.

Reasoning

The Court of Appeal accepted the trial judge's finding that the appellant was not speeding, and his uncontroverted evidence that the child dashed out suddenly and unseen. Given the low speed, familiarity with the area, and suddenness of the event, there was no indication the appellant failed to measure up to the reasonable man's standard. Liability could not rest on the mere occurrence of the accident.

p. 3
02

Error of the trial judge in imposing a heightened obligation on the motorist

Holding

The trial judge erred by imposing on the appellant an obligation to keep a greater look-out than that of a reasonable man; the appeal was allowed and the judgment set aside.

Reasoning

The court held that while a driver in a densely populated residential area owes a duty to keep a proper look-out for children, the extent of that duty is measured by the reasonable man standard. Requiring the driver to anticipate and avert a sudden, unforeseeable dash by a child imposed an impossible burden, contrary to Moore (An Infant) v. Payne. On that basis the finding of negligence could not be sustained, and quantum did not fall for consideration.

p. 4

Legal principles established

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  • A motorist's duty of care towards pedestrians, including children who may dash into the road, is judged by the standard of the reasonable man; an obligation greater than that would impose an impossible burden.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court set aside
  3. 3.Respondent's suit in the High Court dismissed with costs to the appellant
  4. 4.Costs of the appeal awarded to the appellant

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1367 of 1981
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a decree of the High Court

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.

Accordingly, we allow his appeal, set aside the judgment of the superior court and dismiss the respondent's suit in that court with costs to the appellant. Costs of this appeal are awarded to the appellant.
p. 4Final orders of the Court
The occurrence of this accident without more was no ground for holding the appellant liable in negligence.
p. 3Liability in negligence
the degree of his obligation in connection therewith was that of a reasonable man. That was the standard by which his negligence ought to have been adjudged.
p. 3Standard of care of a motorist

Issues in the judgment

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minor

The judgment reproduces the case name with apparent typographical errors ('Moore (An Infact) v. P ayner'); recorded here as printed.

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, "LIVINGSTONE OTUNDO vs NAIMA MOHAMOUD (A MINOR WHO HAD SUED THROUGH HER NEXT FRIEND MOHAMOUD ALI) [1990] KECA 26 (KLR)", Case Analysis (1990). Civil Appeal No. 110 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/26/eng@1990-03-13

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