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Court of AppealPartially AllowedCivil Appeal 34 of 2005· [2006] KECA 388 (KLR)

Hussein Omar Farah v Lento Agencies

Court of Appeal
28 April 2006
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiEGE.M. Githinji
2,715 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that when two drivers blame each other and no evidence settles who caused a crash, both share liability equally.

What this practically means

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Executive summary

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This was a first appeal against the High Court's dismissal of the appellant's suit arising from a road traffic collision between two lorries near Kambu Bridge on the Mombasa-Nairobi Road, and its entry of judgment on the respondent's counterclaim for Shs.12,051,120. The trial Judge had held that the appellant, by failing to traverse the defence and amended counterclaim, was deemed to have admitted the allegation that his driver caused the accident, and found the appellant's driver solely negligent. The Court of Appeal held this was erroneous: the appellant had filed a reply to defence and defence to counterclaim, and the respondent's subsequent amendment left the relevant paragraph unaltered, so no fresh traverse was required and the parties remained bound by the original pleadings. Re-evaluating the evidence as required on a first appeal, the court found two irreconcilable versions of the collision with no concrete evidence distinguishing fault, and applied the established rule that where fault between two drivers cannot be determined, both are held equally to blame, fixing liability at 50:50. The court upheld the appellant's special damages, holding there was one collision only, not two accidents, and that the fuel-loss and repair claims were strictly proved. The appeal was allowed in part: judgment was substituted for the appellant in the sum of Shs.2,006,943.40 with costs and interest on a 50% liability basis, while the counterclaim award was reduced by 50% for contributory negligence. The appellant received half the costs of the appeal. The decision binds subordinate courts on the equal-blame rule and on the effect of pleadings and amendments.

Key legal issues

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01

Effect of failure to traverse a pleading

Holding

The trial Judge erred in deeming the counterclaim admitted, because the appellant had filed a reply to defence and defence to counterclaim and the respondent's amendment did not alter paragraph 3(f).

Reasoning

A reply to defence and defence to counterclaim was filed on 12th November 1997 joining issue. The respondent's later amendment of 23rd April 2002 left paragraph 3(f) unamended, so no fresh traverse was needed. The amendment once allowed took effect as if inserted from the beginning, binding parties to the original pleadings. Ignoring the reply occasioned the appellant grave injustice.

02

Liability where evidence cannot distinguish fault between two drivers

Holding

Both drivers were held equally to blame, applying Barclay-Steward v Waiyaki and Baker v Market Harborough.

Reasoning

The court had two conflicting versions of the collision, each side insisting fault lay with the other. Since neither side could establish the fault of the opposite party, and there was no concrete evidence distinguishing between the drivers, the court applied the established rule that both drivers be held equally to blame, fixing liability at 50:50.

p. 4
03

Special damages for spilled fuel and repair costs

Holding

The appellant proved the claimed Shs.33,603.40 for spilled fuel and Shs.850,000 for repairs; there was one collision, not two accidents.

Reasoning

The respondent argued the fuel was spilled in a separate self-involving second accident 200 metres away. The court rejected this, holding the series of events originated in one collision. The repair claim, specifically pleaded and supported by a reputable motor assessor, was strictly proved; the trial Judge's contrary finding was an error.

p. 5
04

The respondent's counterclaim

Holding

The counterclaim of Shs.12,051,120 was proved but reduced by 50% for the appellant's contributory negligence.

Reasoning

The appellant sought dismissal of the counterclaim as unproved. The court, having re-evaluated the evidence, found sufficient oral and documentary evidence supporting the trial Judge's award. However, since both drivers were equally to blame, the award was reduced by 50% on the ground of proved contributory negligence.

p. 5

Legal principles established

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  • Where there is no concrete evidence to determine which of two drivers is to blame for a collision, both drivers should be held equally to blame.
  • On a first appeal, the appellate court must reconsider and evaluate the evidence and draw its own conclusions, while allowing for the fact that it neither saw nor heard the witnesses.
  • Where an amendment to pleadings does not alter the matter already traversed, the original pleadings bind the parties and no fresh traverse is required.

Court orders

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  1. 1.Appeal against liability allowed; each driver held equally to blame (50:50)
  2. 2.Orders dismissing the appellant's claim set aside and judgment substituted in his favour for Shs.2,006,943.40 with costs and interest on a 50% liability basis
  3. 3.Appeal against the counterclaim dismissed to the limited extent that the respondent's award of Shs.12,051,120 stands but is reduced by 50% for contributory negligence
  4. 4.Appellant awarded half the costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder VIA rule 6
  • Civil Procedure RulesOrder VI rule 9 (referred to as '6 or 9 CPR' in trial judgment)

Cases cited (7)

  • Selle v Associated Motor Board Co. Ltd
    [1968] E.A. 123

    Duty of a first appellate court to reconsider and evaluate the evidence

  • Peter v Sunday Post
    [1959] E.A. 424

    First appellate court not bound by trial Judge's findings of fact where a relevant circumstance was overlooked

  • Barclay-Steward Limited & Another v Waiyaki
    [1982-88] 1 KAR 1118

    Where no concrete evidence distinguishes fault between two drivers, both held equally to blame

  • Baker v Market Harborough Industrial Co-operative Society Ltd
    [1953] 1 WLR 1472

    Proof of collision calls for an answer; both drivers may be held to blame where no distinction can be drawn

  • Welch v Standard Bank Limited
    [1970] EA 115

    Both drivers to blame where no concrete evidence distinguishes them

  • Simon v Carlo
    [1970] EA 285

    Both drivers to blame where no concrete evidence distinguishes them

  • The Supreme Court Practice 1999 Vol. 1
    p 382, paragraph 20/8/11

    Effect of amendments: action continues as though amendment inserted from the beginning

On appeal from
High Court of Kenya at Nairobi (judgment header says Machakos in body)
H.C.C.C. No. 104 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Hussein Omar Farah v Lento Agencies", Case Analysis (2006). Civil Appeal 34 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/388/eng@2006-04-28

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