Motrex Limited v Akamba Public Road Services Limited & another [2011] KECA 318 (KLR)
The bottom line
#Kenya's Court of Appeal reduced a transport company's road accident liability from 100% to 70% because both drivers' conduct contributed to the crash.
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 erred in finding that the appellant had not proved its case on a balance of probability
- 2.Whether the appellant was 100% to blame for the accident or whether liability should have been apportioned as contributory negligence
- 3.Whether the trial judge imposed a higher duty on the appellant than that required of a reasonable driver to warn other motorists
- 4.Whether the special damages awarded to the respondent were proved
Key legal issues
#Apportionment of liability between the drivers where the direct cause of a collision was road and weather conditions
Liability was apportioned 70% against the lorry driver and 30% contributory negligence against the bus driver, reversing the trial judge's 100% finding against the appellant.
The court found the direct cause of the accident was the wet, muddy and slippery road and poor visibility, which made the bus swerve and skid upon braking. However, the lorry had caused a dangerous obstruction at a blind bend and the owners failed to explain why it was not towed before the accident. The bus was also travelling at an excessive speed of 60-65 KPH in the prevailing conditions, so its driver contributed to the accident.
Proof of special damages for cost of repairs
The court upheld the trial court's finding that the respondent proved the special damages, notwithstanding the challenge to the computer-generated list of repair costs.
The appellant challenged the award on the basis that the respondent merely produced a computer-generated list of costs of repairs without concrete evidence. The court rejected this, expressing satisfaction that the special damages were proved, and reduced the award only to reflect the 30% contributory negligence apportioned to the respondent's driver.
Legal principles established
#- A first appellate court must re-consider and re-evaluate the evidence and draw its own conclusions while appreciating it did not see or hear the witnesses.
- A stationary vehicle stalled by road and weather conditions at a blind bend, though not deliberately parked, remains an obstruction attracting liability where the owners fail to secure its timely removal.
Court orders
#- 1.The finding of the superior court that the appellant is to blame for the accident to the extent of 100% is set aside
- 2.Liability substituted at 70% against the appellant's lorry driver and 30% contributory negligence against the 1st respondent's bus driver
- 3.The special damages of Shs.832,816/55 correspondingly reduced by 30% to Shs.582,972
- 4.Half the costs of the suit and counter-claim awarded against the appellant
- 5.Half of the costs of this appeal given to the appellant
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 Nairobi
- H.C.C.C. No. 1824 of 2000
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over appeals from the High Court (the judgment does not cite a specific constitutional/statutory provision)
Relief refused
#Full exoneration of the appellant from liability (100% finding in its favour)
The court found the lorry caused a dangerous obstruction at a blind bend and its owners did not explain why it was not towed before the accident
Setting aside of the award of special damages for want of proof
The court was satisfied the 1st respondent proved the special damages
Costs
Half the costs of the suit and counter-claim to the respondents; half of the costs of the appeal given to the appellant.
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.
As the first appellate court, we have a duty to re-consider the evidence, evaluate it and draw our own conclusion while appreciating that we do not have the advantage, like the superior court had, of seeing and hearing the witnesses.
It is clear from the above analysis that the direct cause of the accident was the condition of the road and the weather and not the obstruction caused by the lorry/trailer.
We have come to the conclusion that the bus was moving at excessive speed in the prevailing circumstances and that the bus driver contributed to the accident to some degree.
In the result, we allow the appeal to the extent that the finding of the superior court that the appellant is to blame for the accident to the extent of 100% is set aside. We substitute therefor a finding that the appellant is to blame for the accident to the extent of 70% and the 1st respondent to the extent 30%.
The special damages Shs.832,816/55 is correspondingly reduced by 30% to Shs.582,972 with half the costs of the suit and counter-claim.
Issues in the judgment
#The date of delivery of judgment (25th March 2011) is inconsistent with the appeal number, which is Civil Appeal No. 203 of 2003, and the suit from which the appeal arises was filed on 7th November 2000 while the corresponding suit is described as filed on 24th May 1999 but numbered H.C.C.C. No. 1092 of 1999.
Internal inconsistency in the figures for the special damages award: the judgment states Shs.832,816.35 at the outset, Shs.832,816/55 in the liability discussion, and Shs.832,718/55 when finding the damages proved.
Witness naming inconsistencies: the second respondent is named John Ntheu Ndunda in the cause title but the bus driver is John Theri Ndungu; both PW witnesses are labelled PW2.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#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, "Motrex Limited v Akamba Public Road Services Limited & another [2011] KECA 318 (KLR)", Case Analysis (2011). Civil Appeal No. 203 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/318/eng@2011-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.