Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 153 of 2001

Sebastian Cabot Bwamu v Noah Thuo Gichia & another [2003] KECA 145 (KLR)

Court of Appeal of Kenya
14 February 2003
ASA. B. ShahSBS. E. O. BosireEOE. O. O'Kubasu
1,162 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

In Kenya, a driver who cannot explain how someone ended up under his car is presumed to have run them over.

What this practically means

#

Executive summary

#
This is a first appeal to the Court of Appeal at Nairobi against the judgment of Ang'awa J in H.C.C.C. No. 1177 of 2000, by which the appellant's claim for damages for personal injuries was dismissed with costs. The appellant, who lost his left leg below the knee after it was run over by a motor vehicle on 18th December 1999, alleged that the vehicle, registration number KAH 214W, was owned by the second respondent, Cadbury Kenya Limited, and driven by the first respondent in the course of his employment. The trial Judge disbelieved the appellant and held the evidence insufficient to establish that the second respondent's vehicle collided with him. The Court of Appeal, allowing the appeal on liability, re-evaluated the evidence and held that the admissions of the driver and his two passengers - that on the vehicle stopping they found the appellant beneath it between the front and back wheels - made the conclusion that the second respondent's vehicle was involved inescapable. The driver, who did not see the appellant before the accident and could not explain how the appellant came to be under his vehicle, was under a duty under section 112 of the Evidence Act (Cap 80) to explain that fact; failing any explanation, negligence was imputed to him and the rebuttable presumption of fact was that he ran over the appellant. The trial Judge's finding of no collision was 'clearly unsupportable'. The Court set aside the judgment below and substituted judgment for the appellant with costs, leaving undisturbed the damages assessed by the trial Judge (Kshs.1,372,800) as there was no cross-appeal on quantum.

Questions the Court framed

#

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

  1. 1.Whether it was the second respondent's motor vehicle (registration No. KAH 214W), driven by the first respondent, that ran over and crushed the appellant's left leg on 18th December 1999 - the appeal being 'basically on an issue of fact'.
  2. 2.Whether the trial Judge erred in disbelieving the appellant and in holding that the evidence was insufficient to support a finding that the second respondent's motor vehicle collided with the appellant.
  3. 3.Whether negligence must be imputed to the first respondent, who did not see the appellant before the accident and could not explain how the appellant came to be beneath his vehicle, having regard to section 112 of the Evidence Act (Cap 80).
  4. 4.Whether the Court could interfere with the damages assessed by the trial Judge where there was no cross-appeal on quantum.

Key legal issues

#
01

Whether the second respondent's motor vehicle KAH 214W was the vehicle that ran over and crushed the appellant's leg.

Holding

Yes. On the admitted circumstances it was the second respondent's vehicle, driven by the first respondent, that ran over the appellant; the trial Judge's finding of no collision was 'clearly unsupportable' and she 'clearly erred'.

Reasoning

The driver and his two passengers admitted that the moment the vehicle stopped they alighted and found the appellant underneath it, between the front and back wheels. The driver admitted driving through Lucky Summer Estate at the material time but claimed never to have seen the appellant. The Court found the appellant's account plausible and believable, and held that the driver's suggestion that some other vehicle was responsible could not stand because, on a balance of probabilities, he was under a duty to explain how the appellant landed beneath his vehicle. The trial Judge's contrary finding was therefore clearly unsupportable and erroneous.

p. 2
02

Whether negligence must be imputed to the driver notwithstanding his testimony that he did not see the appellant.

Holding

Yes. Having found the appellant beneath his vehicle and being unable to explain how he came to be there - a fact especially within his own knowledge under section 112 of the Evidence Act - the presumption is that the driver was negligent and ran over the appellant.

Reasoning

Because the driver testified that he did not see the appellant, the Court reasoned that had he been as careful as he claimed he would have seen the appellant and possibly avoided him. Finding the appellant beneath his vehicle was a fact which, in the ordinary course of things, was within the driver's own knowledge, so section 112 of the Evidence Act (Cap 80) placed him under a duty to explain it. Having offered no explanation, the presumption arose that he, as the driver of the vehicle, was negligent in driving it and ran over the appellant.

p. 2
03

Whether the Court could interfere with the damages assessed by the trial Judge.

Holding

No. Although the award appeared to be on the higher side, the Court could not interfere in the absence of a cross-appeal on quantum; the appellant has judgment on damages as assessed by the trial court (total Kshs.1,372,800).

Reasoning

The trial Judge had assessed general damages at Kshs.500,000, Kshs.300,000 for prosthesis, Kshs.172,800 for loss of earnings and Kshs.400,000 for loss of earning capacity, totalling Kshs.1,372,800. Although the Court considered the award to be on the higher side, it held itself unable to interfere because there was no cross-appeal on quantum. It therefore directed that the appellant have judgment on damages as assessed by the trial court.

p. 2

Legal principles established

#
  • Where a driver stops his motor vehicle and the victim is found underneath it, and the driver did not see the victim beforehand and did not see anyone placing the victim under the vehicle, the rebuttable presumption of fact is that the driver ran the victim over.
  • Under section 112 of the Evidence Act (Cap 80), a driver is dutybound to explain how the victim came to be beneath his vehicle, a fact in the ordinary course of things within his own knowledge; failure to offer any explanation raises the presumption that he was negligent and ran the victim over.
  • An appellate court will not interfere with an award of damages on the ground that it is on the higher side where there is no cross-appeal on quantum.

Court orders

#
  1. 1.Appeal allowed on the issue of liability.
  2. 2.Judgment and decree of the High Court (Ang'awa J, H.C.C.C. No. 1177 of 2000) set aside.
  3. 3.Judgment substituted for the appellant against the respondents on liability.
  4. 4.The appellant to have judgment on damages as assessed by the trial court, totalling Kshs.1,372,800 (general damages Kshs.500,000; prosthesis Kshs.300,000 as reconciled by the stated total; loss of earnings Kshs.172,800; loss of earning capacity Kshs.400,000).
  5. 5.Judgment for the appellant with costs.

The bench

#

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

AS
majority
SB
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1177 of 2000
Jurisdiction invoked
Not expressly stated in the judgment; the matter is before the Court of Appeal as a first appeal from the judgment and decree of the High Court of Kenya at Nairobi in H.C.C.C. No. 1177 of 2000.

Relief refused

#

Interference with (reduction of) the quantum of damages assessed by the trial court, the award appearing to the Court to be on the higher side.

There was no cross-appeal on quantum, so the Court could not disturb the award in the respondents' favour.

p. 2

Costs

Judgment substituted for the appellant with costs - the appellant has the costs of the appeal and of the suit below (the trial court's order dismissing the suit with costs having been set aside).

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We allow the appeal on the issue of liability, set aside the judgment of the trial court and substitute a judgment for the appellant with costs.
p. 2Final orders - appeal allowed on liability; trial judgment set aside and judgment substituted for the appellant
It then follows that the appellant shall have judgment on damages as assessed by the trial court.
p. 2Final orders - damages as assessed by the trial court to stand
The driver did not see the appellant before the accident; and if he did not see anyone pushing the appellant under his motor vehicle after it had stopped, the rebuttable presumption of fact to be raised is that he ran over him.
p. 2Rebuttable presumption of fact where the victim is found beneath the defendant's vehicle
That was a fact which in the ordinary course of things would be within his own knowledge and which under section 112 of the Evidence Act, Cap 80 Laws of Kenya, he would be dutybound to explain.
p. 2Section 112 Evidence Act - duty to explain facts specially within knowledge
Consequently the finding by the trial Judge that no collision between the appellant and the second respondent's motor vehicle occurred is clearly unsupportable. She clearly erred.
p. 2Appellate review - trial court's finding of fact overturned as unsupportable on the evidence
In our view there was ample evidence to lead to the conclusion that the second respondent's vehicle ran over the appellant's leg.
p. 2Sufficiency of evidence identifying the vehicle involved in the accident
Although the award appears to us to be on the higher side we cannot interfere as there was no cross-appeal on quantum.
p. 2No appellate interference with quantum absent a cross-appeal

Issues in the judgment

#
minor

The judgment gives conflicting dates for the High Court decision: the title/header states the decree was dated 18th January 2001, while the opening paragraph states the judgment was given on 18th January 2000.

minor

The damages breakdown prints the prosthesis figure as 'Kshs.3000,000/=', which conflicts with the stated total of Kshs.1,372,800; the total reconciles only if the prosthesis award is Kshs.300,000.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Sebastian Cabot Bwamu v Noah Thuo Gichia & another [2003] KECA 145 (KLR)", Case Analysis (2003). Civil Appeal No. 153 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/145/eng@2003-02-14

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