Kloss & another v Seroney & 5 others (Civil Appeal 285 of 2005) [2009] KECA 146 (KLR)
The bottom line
#Kenya's Court of Appeal ruled both drivers equally at fault in a fatal road accident and allowed the vehicle owner's Shs.1.2 million repair counterclaim despite insurance having paid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the superior court's findings on liability and apportionment of contributory negligence were supported by the evidence
- 2.Whether the apportionment of liability at 80% against the white Pajero driver and 20% against the blue Pajero driver was appropriate
- 3.Whether special damages awarded without strict proof could stand
- 4.Whether future medical expenses could be awarded without receipts where pleaded and estimated in medical reports
- 5.Whether the appellants' counterclaim for cost of repairs and loss of use was wrongly dismissed
Key legal issues
#Apportionment of contributory negligence between the two drivers
Both drivers were equally to blame for failing to take evasive action; the 80/20 apportionment by the High Court was set aside and replaced with 50/50.
The court found both drivers were on their correct lanes at 80-90 Kmph on a narrow, unmarked road. Kloss braked and was stationary at impact; David admitted no effort to brake. Both had room and opportunity to swerve away or off the road. Since neither took evasive action in the face of danger, blame should be shared equally, and no valid basis existed for placing higher liability on Kloss.
Effect of criminal acquittal on civil negligence proceedings
The acquittal is not binding on the civil court, which applies a lower standard of proof, but the traffic court proceedings and acquittal are relevant and significant, especially where the acquitted driver could not testify in the civil suit.
The court held that a person acquitted of an offence involving negligence may still be sued in civil proceedings, applying the converse of the rule in Robinson v Oluoch. The traffic proceedings were produced as an exhibit with the parties' consent and were properly used by the superior court in analysing evidence of witnesses unavailable to testify.
Failure of the superior court to found its liability findings on the pleadings
The superior court erred in principle by not referring to the pleadings and the joinder of issues when making findings on liability.
Both parties had pleaded specific acts of negligence and the onus was on each to prove them on a balance of probabilities. The High Court judgment contained no reference to those pleadings or the joinder of issues, amounting to an error of principle, though the court nonetheless found sufficient probability that either driver's omissions prevented avoidance of the accident.
Proof of special damages including funeral expenses and medical reports
Awards of Shs.1,500 for medical reports to David and Rose and the reduced funeral expenses award of Shs.64,000 were set aside for want of strict proof; funeral expenses substituted at Shs.30,000.
Special damages must be specifically pleaded and strictly proved. The medical report sums had no payment receipts. The funeral claim of Shs.121,000, reduced by the Judge to Shs.64,000, was not strictly proved; only reasonable and legitimate funeral expenses may be compensated without strict proof, and a court may not pick a large figure unsupported by documents.
Counterclaim for cost of repairs paid by the insurer
The High Court's dismissal of the repair claim of Shs.1,247,308 on the basis that the insurer had not demanded repayment was reversed and the claim allowed.
The reasoning that the claimant had to show the insurer demanded repayment before claiming was erroneous in law. There was no privity of contract between the insurer and the respondents; the insurer can recoup its loss only through subrogation via its insured. The repair documents were produced unchallenged by consent, so the pleading and proof requirements were met.
Deference to the trial judge's assessment of damages
General damages awards were left undisturbed; quantum is discretionary and interference requires a demonstration that the award was inordinately high or an entirely erroneous estimate.
Assessment of quantum is a matter for the discretion of the individual judge exercised judicially with regard to prevailing conditions and comparable decisions. The court found no basis for interfering with any general damages award after examining the record.
Legal principles established
#- An acquittal in a criminal traffic case is not binding on a civil court determining negligence on a balance of probability, but the acquittal and the criminal proceedings record are relevant and significant where the acquitted witnesses are unavailable to testify in the civil suit.
- On a first appeal the Court of Appeal is duty bound to revisit the evidence, evaluate it and reach its own conclusions, though it will not ordinarily interfere with findings of fact unless they were based on no evidence, on a misapprehension of it, or on wrong principles.
- Where credibility of witnesses is crucial and there is a conflict of primary facts, the appellate court will hardly interfere with the trial judge's conclusions.
- Special damages must not only be specifically pleaded but also strictly proved; only reasonable and legitimate funeral expenses may be awarded in the absence of strict proof, and large unproved sums may not simply be selected by the court.
- Costs of future medical treatment, where pleaded and reasonably estimated, are recoverable as special damages even though receipts for future services cannot exist.
- An insurer's payment of repair charges does not bar the insured tortfeasor's counterclaim for those repair charges; the insurer may recoup its loss from the tortfeasor only through its insured under the doctrine of subrogation, and rejecting such a claim risks allowing the tortfeasor to profit from the insurance contract to which the plaintiff is not party.
Court orders
#- 1.Set aside the apportionment of liability of 80% and 20% against Kloss and David respectively and substitute 50% and 50% respectively for both drivers
- 2.Set aside the award of Shs.1,500 for a medical report to David for want of proof
- 3.Set aside the award of Shs.1,500 for a medical report to Rose for want of proof
- 4.Set aside the award of Shs.64,000 funeral expenses to Zipporah and substitute Shs.30,000
- 5.Uphold the general damages awards and the awards of future medical treatment costs to David, Christine and Florence
- 6.Allow the counterclaim for repair charges in the sum of Shs.1,247,308
- 7.Each party to bear its own costs of the appeal and the costs of the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- H.C.C.C. No. R.6 of 2000 consolidated with R.69 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (no specific constitutional/statutory article quoted in the judgment)
- Consolidated with
- HCCC No. R.69 of 2000
Relief refused
#Interference with the general damages awards to the injured respondents
The awards were neither inordinately high nor an entirely erroneous estimate
Interference with the awards for future medical treatment costs
Costs of future treatment, where pleaded and reasonably estimated, are recoverable; the doctors' reports were produced by consent and unchallenged
The claim for loss of use (hiring fees) of Shs.600,000 in the counterclaim
Not supported by documents
Costs
Each party shall bear its own costs of the appeal and the costs of the superior court.
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.
The acquittal of Kloss in the traffic case would, of course not be binding on a civil court subsequently considering the issue of negligence on a standard of proof which is lower than “proof beyond reasonable doubt”.
This is a first appeal and the court is duty bound to revisit the evidence on record, evaluate it and reach its own conclusions in the matter.
We would accordingly interfere with the apportionment of liability and set aside the apportionment of 80% and 20% against Kloss and David respectively and substitute therefor 50% and 50% respectively for both drivers.
In the circumstances it was not open to the learned Judge to pick a large figure from the air, as it were, and award it against the appellants.
We think the cost of future treatment, where pleaded and reasonably estimated, ought to be awarded
As the appellants have succeeded substantially in their counterclaim we order that each party shall bear its own costs of the appeal and the costs of the superior court.
Issues in the judgment
#The record contains a certificate stating the judgment was certified by the Deputy Registrar but the delivery place is inconsistent with the heading: the cause is styled 'At Eldoret' yet the judgment is dated and delivered at Nairobi.
The judgment refers to a ruling of 8th April 2002 that is absent from the record.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndiso v Wahome & 2 others (Civil Appeal E001 of 2023) [2026] KECA 1499 (KLR)[2026] KECA 1499 (KLR)24 Jul 2026
- Apex Steel Limited v Mauti (Employment and Labour Relations Appeal 3 of 2023) [2025] KEELRC 3734 (KLR)[2025] KEELRC 3734 (KLR)17 Dec 2025applied
- Kioko v Katelembo Athiani Muputi Farmimg & Ranching Co-operative Society Ltd (Environment & Land Case E002 of 2020) [2024] KEELC 634 (KLR)[2024] KEELC 634 (KLR)13 Feb 2024followed
- Mario Majane Kimani & 12 others v Nairobi City Council & 2 others [2019] KEELC 321 (KLR)[2019] KEELC 321 (KLR)7 Nov 2019
Cite this brief
#Cite this brief
Caselaw, "Kloss & another v Seroney & 5 others (Civil Appeal 285 of 2005) [2009] KECA 146 (KLR)", Case Analysis (2009). Civil Appeal 285 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/146/eng@2009-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.