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Court of AppealPartially AllowedCivil Appeal (Kisumu) against Bungoma High Court Civil Case No 76 of 1995

Jiang & another v Kawir (Civil Appeal 122 of 1996) [1996] KECA 188 (KLR)

Court of Appeal of Kenya
22 November 1996
689 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a traffic conviction still under appeal cannot automatically prove negligence in a civil damages claim, and ordered a retrial.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Kisumu on 22 November 1996 by Kwach, Tunoi and Pall JJA, allowed the defendants' appeal against a High Court (Bungoma, BK Tanui J) judgment awarding the respondent damages for damage to his vehicle and goods in a road accident on the Webuye–Malaba road. The trial judge had based liability entirely on certified copies of proceedings and a conviction for careless driving in a traffic case, invoking section 47A of the Evidence Act as making the criminal finding conclusive as to negligence. The Court of Appeal held that this was erroneous because an appeal against the conviction (Bungoma High Court Criminal Appeal No 318 of 1995) was still pending; section 47A renders a conviction conclusive only after the appeal period expires or any appeal is finally decided, and only if the conviction is upheld. With the conviction unavailable as conclusive proof, and neither party having adduced evidence on negligence in the civil suit, the trial judge had no evidence of the cause of the accident and could not hold the first appellant liable. The Court allowed the appeal, set aside the judgment and decree of 28 November 1995 together with all consequential orders, ordered a retrial of Bungoma High Court Civil Case No 76 of 1995, and awarded the costs of the appeal to the appellants. The decision binds lower courts on the temporal operation of section 47A of the Evidence Act.

Questions the Court framed

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

  1. 1.Whether the trial judge erred in awarding enormous sums of money for loss of business without sufficient proof
  2. 2.Whether the trial judge erred in basing his finding of negligence wholly upon the judgment in Bungoma Chief Magistrates Traffic Case No 1918 of 1995 (Traffic Case No 1966 of 1995) as conclusive evidence, when an appeal against that conviction was pending

Key legal issues

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01

Effect of a pending appeal on the conclusiveness of a criminal conviction under section 47A of the Evidence Act

Holding

A conviction is not conclusive evidence of negligence while an appeal against it is pending; section 47A operates only after the appeal is decided or the appeal period expires.

Reasoning

The trial judge relied on certified copies of proceedings and judgment in the traffic case under section 47A of the Evidence Act as conclusive of the driver's negligence. However, an appeal against that conviction (High Court Bungoma Criminal Appeal No 318 of 1995) had been filed and was pending. Section 47A by its own terms applies only after expiry of the appeal period or final decision of any appeal. The conviction therefore could not found a finding of negligence.

p. 2
02

Whether liability in damages could be established without evidence of the cause of the accident

Holding

No; with the conviction unavailable as conclusive proof, there was no evidence of negligence and liability could not be sustained.

Reasoning

Neither party adduced evidence on negligence in the superior court. The respondent's owner (PW1) did not witness the accident, and the driver's account was not before the court as proof of the cause. Once the traffic-case judgment was removed as conclusive evidence, the trial judge had no evidentiary basis to hold the first appellant liable, and the award of damages for loss of business rested on no proof.

p. 2

Legal principles established

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  • A criminal conviction under section 47A of the Evidence Act becomes conclusive evidence of guilt only after the time for appeal has expired or any appeal against the conviction has been finally decided; a pending appeal means the conviction cannot be treated as conclusive of negligence in a civil suit.
  • Where no evidence is adduced on the issue of negligence, a trial court cannot hold a defendant liable in damages for the accident.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the superior court dated 28th November, 1995 set aside
  3. 3.Retrial ordered of High Court Civil Case No 76 of 1995
  4. 4.All consequential orders set aside
  5. 5.Costs of the appeal awarded to the appellants

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, Bungoma
Bungoma High Court Civil Case No 76 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment and decree of the High Court (statutory appellate jurisdiction; no specific constitutional provision stated in the judgment)

Relief refused

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Final determination of liability in the civil suit (in place of retrial)

The trial judge had no evidence on the cause of the accident once the traffic-case conviction was held not yet conclusive, so liability could not be decided on appeal; a retrial was ordered instead

p. 2

Costs

Costs of the appeal awarded to the appellants

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.

Section 47A of the Evidence Act will apply only after the said appeal has been finally decided, and; if as a result of that conviction of the appellants’ driver is upheld.
p. 2Conclusiveness of criminal convictions in civil proceedings under section 47A Evidence Act
Consequently, in the circumstances the trial judge did not have any evidence about the cause of the accident. He could not have therefore held that the 1st appellant was liable to the respondent in damages.
p. 2Liability requires evidence of negligence
We accordingly allow the appeal and set aside the judgment and decree of the superior court dated 28th November, 1995. We order a retrial of the High Court Civil Case No 76 of 1995 and we also set aside all consequential orders. We award costs of the appeal to the appellants.
p. 2Final orders and disposition

Issues in the judgment

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minor

The judgment refers inconsistently to the traffic case number: the grounds of appeal cite 'Bungoma Chief Magistrates Trafic Case No 1918 of 1995' while the body refers to 'Trafic Case No 1966 of 1995'.

minor

The names of the parties are not fully stated in the judgment; the appellants are identified only as 'the defendants in the suit' and the respondent through his driver and vehicle registration.

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, "Jiang & another v Kawir (Civil Appeal 122 of 1996) [1996] KECA 188 (KLR)", Case Analysis (1996). Civil Appeal (Kisumu) against Bungoma High Court Civil Case No 76 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/188/eng@1996-11-22

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