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Court of AppealDismissedCivil Appeal 210 of 2006· [2008] KECA 54 (KLR)

Lake Flowers v Cila Francklyn Onyango Ngonga & another [2008] KECA 54 (KLR)

Court of Appeal of Kenya
14 November 2008
Philip Kiptoo TunoiP. K. TunoiSBS. E. O. BosireDAD. K. S. Aganyanya
2,346 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that vehicle owners can be held liable for accidents even when the driver is never sued and vicarious liability is not expressly pleaded.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nakuru against the judgment of Ondeyo, J (High Court, H.C.C.C. No. 181 of 2001, delivered 20 September 2002), which awarded the 1st respondent, suing as administrator of the estate of Florence Agwingi Ogam who died with her child in a road accident at Kinale on 28 August 2000, Kshs.10,000 for pain and suffering, Kshs.80,000 for loss of expectation of life and Kshs.784,662 for loss of dependency, with costs and interest. The trial Judge wholly blamed the driver of the Mitsubishi Canter, said to be owned by the appellant Lake Flowers, and exonerated the 2nd respondent, owner of the Nissan matatu. The appellant's seven grounds attacked the judgment for failing to plead vicarious liability, non-joinder of the Canter's driver, non-proof of ownership, and the finding on negligence. The Court of Appeal restated the settled principles governing a first appeal, citing Selle v Associated Motor Boat Company. It observed that the appellant's adjournment application to avail its witnesses had been refused and its defence closed, leaving the 1st respondent's evidence unchallenged; the appellant could not deny ownership against the police abstract. Although the Court agreed vicarious liability was not pleaded and the driver was not joined, it held, following Dritoo v West Nile District Administration and Ndungu v Coast Bus Company, that pleading of the primary facts and evidence of ownership sufficed, vicarious liability being inferred as a matter of law and not pegged to the employee's joinder. There being no complaint on quantum, the Court dismissed the appeal with costs to the 1st respondent, affirming the judgment below.

Key legal issues

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01

Proof of ownership of the accident motor vehicle

Holding

The appellant could not deny ownership of the Mitsubishi Canter absent evidence to counter the police abstract produced by the 1st respondent.

Reasoning

The 1st respondent testified that the Mitsubishi Canter was driven out of its correct side of the road, and this evidence was unchallenged because the appellant's application for an adjournment to avail its witnesses was refused and its defence was closed. A police abstract showed the appellant to be the registered owner. Without countervailing evidence, the appellant could not contest liability or shift blame to the 2nd respondent on appeal.

p. 4
02

Whether failure to plead vicarious liability or to join the driver was fatal

Holding

No. It is sufficient that the relevant primary facts were pleaded and evidence led from which vicarious liability can be inferred as a matter of law.

Reasoning

The Court agreed that vicarious liability was not expressly pleaded and the driver was not joined, but held these omissions not necessarily fatal. Relying on Dritoo v West Nile District Administration and Ndungu v Coast Bus Company, the Court held that where a car negligently causes damage, a presumption arises that it was driven by a person for whose negligence the owner is responsible, and employer liability depends on pleadings and evidence.

p. 4
03

Attribution of blame for the accident

Holding

The trial Judge's finding that the Canter driver left his side of the road in foggy weather and caused the collision was supported by unchallenged evidence and was affirmed.

Reasoning

The 1st respondent's evidence that the Canter pulled onto the Nissan's side was not denied by any defence evidence, the defence having been closed after adjournment was refused. Driving on the wrong side in fog is careless driving. On a first appeal the Court was not persuaded the trial Judge misdirected herself in wholly blaming the appellant while exonerating the 2nd respondent.

p. 3

Legal principles established

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  • On a first appeal, the Court reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
  • Where a car is proved to have caused damage by negligence, in the absence of evidence to the contrary a presumption arises that it was driven by a person for whose negligence the owner is responsible.
  • Non-joinder of the driver of an accident motor vehicle is not fatal to a claim against the owner/employer; it suffices that the primary facts are pleaded and evidence led from which vicarious liability can be inferred as a matter of law.
  • Vicarious liability of an employer is not pegged to the employee's liability but to his negligence, and depends on the pleadings and the evidence in support of the claim.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st respondent

Authorities

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Legislation

  • Fatal Accidents Act
  • Law Reform Act

Cases cited (4)

  • Selle v. Associated Motor Boat Company
    [1968] EA 123
  • Dritoo v. West Nile District Administration
    [1968] E.A. 428
  • Ndungu v. Coast Bus Company Limited
    [2000] 2 E.A. 462
  • Mwonia V Kakuzi
    [1982] 46 (CAK)
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 181 of 2001
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 (18)

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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, "Lake Flowers v Cila Francklyn Onyango Ngonga & another [2008] KECA 54 (KLR)", Case Analysis (2008). Civil Appeal 210 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/54/eng@2008-11-14

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