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Court of AppealAllowedCivil Application No. Nai. 231 of 2002· [2007] KECA 302 (KLR)

JACKSON MUTUKU NDETEI v A.O. BAYUSUF & SONS LTD [2007] KECA 302 (KLR)

Court of Appeal of Kenya
25 May 2007
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
5,798 words in judgment
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The bottom line

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Kenya's Court of Appeal overturned a dismissed accident claim, holding a lorry driver 100% liable and awarding the injured man over KSh 5.3 million.

What this practically means

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Executive summary

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This is a first appeal by Jackson Mutuku Ndetei against the dismissal by Mwera, J of the High Court at Machakos of his claim for special and general damages arising from a road traffic accident on 15th June 1997 along the Mombasa-Nairobi Road at Kapiti Plains, in which he sustained grave injuries including an above-knee amputation of the left leg. The Court of Appeal, per a single judgment of the court (Tunoi, Githinji and Onyango Otieno, JJ.A), re-evaluated the evidence on the established principles in Selle v Associated Motorboat Co and Peters v Sunday Post. It found that the trial judge had misapprehended the evidence, wrongly relying on a seemingly altered police abstract and secondary police records while ignoring uncontradicted viva voce evidence of the appellant and his witnesses, including the eyewitness PW5 and the police officer PW6, and placing weight on the discredited, self-interested testimony of the respondent's Road Patrol Manager. The court held the respondent's driver wholly (100%) negligent for overtaking at speed despite oncoming vehicles, a narrow bridge and a trench, and rejected the trial judge's 20% contributory negligence finding, which had been based solely on the appellant's failure to plead his own negligence. On quantum, the court substituted awards totalling Shs.5,327,475, covering general damages of Shs.2,000,000, future treatment Shs.1,000,000, future care Shs.252,000, loss of future earnings Shs.1,350,000 and strictly proved special damages of Shs.725,475, with interest at court rates. The appeal was allowed, the judgment and decree of the superior court were set aside and substituted, and the respondent was ordered to pay costs of the suit and of the appeal.

Key legal issues

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01

Duty of a first appellate court on facts

Holding

The court must re-evaluate the evidence and reach its own conclusions but with caution, giving allowance for the trial court's advantage of seeing and hearing witnesses.

Reasoning

Relying on Selle v Associated Motorboat Co and Peters v Sunday Post, the court held that a first appeal is by way of retrial; it may depart from trial findings where the judge ignored relevant circumstances or where his impressions of demeanour were inconsistent with the evidence generally. Here, the trial judge relied on discredited secondary police records and ignored uncontroverted viva voce evidence, justifying interference.

p. 2
02

Negligence and contributory negligence

Holding

The driver of KAG 004A was wholly (100%) to blame for the accident; the trial judge's 20% contributory negligence apportionment based on the appellant's failure to plead was set aside.

Reasoning

The court held the driver failed to exercise the care and skill expected of a driver of a heavy loaded lorry on a busy highway, attempting to overtake despite three oncoming vehicles, a narrow bridge and a trench, without reducing speed. Applying Baker v Willoughby and Stapley v Gypsum Mines, liability rests on causation and blameworthiness; failure to plead negligence did not contribute to the accident. The broken-down vehicle parked ahead was not actionable negligence per Brockhurst and Grant.

p. 5
03

Weight of police records and secondary evidence

Holding

A defective police abstract could not be used to discredit the appellant's case; the trial judge erred in relying on secondary documentary evidence over uncontradicted viva voce testimony of the appellant and his witnesses.

Reasoning

The court held the trial judge misdirected himself by directing flaws in police records at the appellant who was not their author. The evidence of PW6 on the Occurrence Book, covering report and sketch plan was uncontradicted, and the testimony of PW5 and PW7 was corroborative and clearly the best evidence. The discredited evidence of DW3, an interested witness who arrived an hour after the accident, was rejected.

p. 6
04

Quantum of damages

Holding

The global award of Shs.450,000 less 20% was manifestly low; the court awarded Shs.5,327,475 across heads of general damages, future treatment, future care, loss of future earnings and special damages.

Reasoning

Guided by medical evidence of 82½% to 85% permanent incapacity and comparable awards (Shs.1.3m to Shs.2.89m), adjusted for the decline in the value of money, the court awarded Shs.2,000,000 for pain and suffering, Shs.1,000,000 for future treatment, Shs.252,000 for future care, Shs.1,350,000 for loss of future earnings (multiplicand of 15 years at Shs.7,500 per month) and strictly proved special damages of Shs.725,475.

p. 8

Legal principles established

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  • On a first appeal, the Court of Appeal is entitled to re-evaluate the evidence and reach its own conclusions, subject to the caution that it did not see or hear the witnesses.
  • An appellate court will interfere with a trial judge's findings of fact where the judge failed to take account of particular circumstances or probabilities, or where his impression of demeanour is inconsistent with the evidence generally.
  • Failure to plead one's own negligence does not, without more, establish contributory negligence; liability turns on causation and blameworthiness.
  • A driver must anticipate and guard against the possible negligence of others, including broken-down vehicles parked on or near the road; the parking of a broken-down vehicle is not of itself actionable negligence.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the superior court made on 5th February 2002 set aside and substituted with a judgment holding the respondent 100% liable in negligence
  3. 3.Judgment entered for the appellant against the respondent as follows: general damages for pain, suffering and loss of amenities Shs.2,000,000; cost of future treatment Shs.1,000,000; cost of future care Shs.252,000; loss of future earnings or future earning capacity Shs.1,350,000; special damages Shs.725,475; total Shs.5,327,475
  4. 4.The total award to bear interest at court rates
  5. 5.Respondent to pay the costs of the suit in the superior court and the costs of this appeal

Authorities

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Cases cited (9)

  • Selle & Another v Associated Motorboat Company Ltd & Others
    [1968] EA 123
  • Peters v Sunday Post Ltd
    [1958] EA 424
  • Brockhurst v War Officer
    [1957] CLY 2388
  • Grant v Sun Shipping Company Limited
    [1948] 2 All ER 238
  • Baker v Willoughby
    [1970] EAAC 467
  • Stapley v Gypsum Mines Ltd
    [1953] 2 All E.R. 478
  • James Munyiri v Amos Muriithi Cyrus
    HCCC No. 137 of 1992
  • Mohamed Mwinyi Haji v Coast Bus Mombasa
    HCCC No. 33 of 1993 (unreported)
  • John Okelo Arate v George Ayuka Otieno
    Nairobi HCCC 109 of 1984 (unreported)
On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 417 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court (the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "JACKSON MUTUKU NDETEI v A.O. BAYUSUF & SONS LTD [2007] KECA 302 (KLR)", Case Analysis (2007). Civil Application No. Nai. 231 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/302/eng@2007-05-25

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