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Court of AppealDismissedNot stated in the judgment· [1993] KECA 59 (KLR)

Municipal Council of Nakuru & another v David Mburu Gathiaya [1993] KECA 59 (KLR)

Court of Appeal of Kenya
13 October 1993
JGJ.E. GicheruACA.M. CockarMMM.G. Muli
2,281 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld full liability and a Ksh 1.2 million damages award against a driver who hit a pedestrian, saying conflicting stories sank his defence.

What this practically means

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Executive summary

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This Court of Appeal decision arises from a road traffic accident of 11 September 1975 near Nakuru in which the respondent, then a 19-year-old schoolboy, was struck from behind by vehicle KNR 1 owned by the first appellant and driven by the second appellant in the course of his employment. The trial judge, Msagha J, found the second appellant solely liable and awarded the respondent Ksh 1,200,000 for pain, suffering and loss of amenities, holding the first appellant vicariously liable. On appeal, counsel for the appellants abandoned grounds 7 to 9 and argued liability grounds (that liability should have been apportioned fifty-fifty given inconsistent evidence and poor police investigation) and quantum separately. On liability, the court distinguished Berkley-Steward Ltd v Waiyaki, holding that unlike that head-on collision case with no direct evidence, here the respondent gave credible direct evidence of being struck from behind on a pavement while the second appellant gave contradictory versions. Res ipsa loquitur shifted the onus to the appellants, who failed to discharge it. On quantum, applying the settled standard from Butt v Khan, the court held the award was not inordinately high: the injuries were of maximum severity, leaving the respondent permanently bed-ridden with 100% disability, and comparable awards showed an upward inflationary trend. The court endorsed Chesoni Ag JA's observation in Mariga v Musila that each motor accident damages case must be considered on its own facts. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Liability for the road accident

Holding

The second appellant was solely liable and the first appellant vicariously liable in negligence; the Berkley-Steward fifty-fifty authority was distinguishable on facts because there was direct credible evidence of the respondent being hit from behind on a pavement.

Reasoning

The respondent's account - walking on the left pavement and struck from behind - was credible, while the second appellant gave varied and contradictory versions of how the accident occurred. On a rainy night with pedestrians known to be on the road, the driver failed to exercise due care and look-out. Res ipsa loquitur shifted the onus to the appellants, which they failed to discharge. The trial judge's credibility finding was therefore supportable and grounds 1, 2 and 5 failed.

p. 1
02

Quantum of damages for pain, suffering and loss of amenities

Holding

The award of Ksh 1,200,000 was neither inordinately high nor an entirely erroneous estimate, given injuries of maximum severity leaving the respondent bed-ridden for life with 100% permanent disability, and the upward inflationary trend of comparable awards.

Reasoning

The court compared comparable authorities (Butt v Khan, Mariga v Musila, Kisira v Futi, Kibucha v Kwamboka Mosongo, Shaban) and found the present injuries the most severe. No wrong principle or misapprehension of evidence was identified by the appellant. Comparable awards showed an upward trend explained by inflation and the decline in the value of the Kenya Shilling. Ground 6 accordingly failed.

p. 4

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in some material respect.
  • Past decisions on quantum of general damages in motor accident cases are of little assistance because each case must be considered on its own peculiar facts.
  • Where res ipsa loquitur applies, the onus shifts to the defendant to explain how the accident occurred; a first appellate court may act on the credibility findings of the trial judge who saw and heard the witnesses.

Court orders

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  1. 1.Dismissal of the appeal in its entirety
  2. 2.The appellants to pay the respondent's costs of the appeal
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appellate appeal to the Court of Appeal (specific provision not stated in the judgment)

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, "Municipal Council of Nakuru & another v David Mburu Gathiaya [1993] KECA 59 (KLR)", Case Analysis (1993). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/59/eng@1993-10-13

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