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Court of AppealPartially AllowedCivil Appeal No. 310 of 2005· [2013] KECA 167 (KLR)

Abdi Ali Dere v Firoz Hussein Tundal & 2 others [2013] KECA 167 (KLR)

Court of Appeal of Kenya
20 September 2013
5,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a vehicle owner is presumed liable for their driver's negligence, and a criminal conviction can seal civil liability.

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 Nairobi (Karanja, Kiage and M'inoti, JJ.A.) against the decision of Wendoh, J of the High Court dismissing the appellant's claim for KShs.3,486,850/- arising from a road accident in which the appellant's tanker, driven by his deceased driver, collided with a lorry driven by the 3rd respondent. The High Court had dismissed the suit, holding there was no evidence of vicarious liability, apportioning 30% contributory negligence to the deceased driver, rejecting the payment vouchers as evidence of payment, and excluding the assessor's loss assessment report as irrelevant and as inadmissible under section 23 of the Evidence Act. The Court of Appeal reversed the dismissal in full. It held that on proof of ownership and negligent driving, a presumption arises that the driver was the owner's servant or agent, unrebutted here since the respondents called no evidence. It held that under section 47A of the Evidence Act the 3rd respondent's unappealed traffic conviction was conclusive evidence of guilt and liability, and that contributory negligence could not be found absent evidence of the deceased's culpability. It held that payment vouchers may constitute evidence of payment, that the trial court was obliged to address each item of evidence, and awarded KShs.151,000/- in proved special damages. It held the assessor's report admissible, section 23 concerning only without-prejudice admissions between parties. Applying the replacement-cost measure for destroyed goods, the Court entered judgment for KShs.2,481,000/- with interest from filing and costs in both courts against the 1st and 3rd respondents.

Key legal issues

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01

Vicarious liability and the presumption arising from ownership where the driver's capacity is unexplained

Holding

The trial judge erred in absolving the owner and driver from liability; on proof of ownership and negligent driving, a presumption arises that the driver was the owner's servant or agent, absent contrary evidence, and the respondents having called no evidence, the presumption was unrebutted.

Reasoning

The Court relied on Hewitt v Bonvin, Karisa v Solanki and Vyas Industries: once a plaintiff proves negligent driving and ownership and the court is left without further information, it may presume the driver was the owner's servant or agent. Anyanzwa v Gasperis was distinguished because there the vehicle had been hired out to an independent party; here there was no suggestion of hire-out, and the respondents offered no evidence to rebut the presumption.

p. 4
02

Effect of a criminal conviction for causing death by dangerous driving on civil liability

Holding

Under section 47A of the Evidence Act, the unappealed conviction of the 3rd respondent was conclusive evidence of his guilt and of liability for the accident; the trial judge erred in apportioning 30% contributory negligence to the deceased driver without any evidence of his culpability.

Reasoning

The conviction had not been appealed, set aside or varied, so it was conclusive. Chemwolo v Kubende shows contributory negligence may still arise on facts warranting it, but here there was no evidence of how the deceased contributed; the respondents called no witness and the judge's finding rested on speculation about what the deceased did not do.

p. 5
03

Proof of special damages: payment vouchers and receipts

Holding

The trial court erred in rejecting the whole bundle of documents; a payment voucher in the sense of confirmation of payment is not different from a receipt and may prove payment, and each item of evidence must be individually addressed. Special damages of KShs.151,000/- were proved.

Reasoning

Special damages must be pleaded and strictly proved, but the Court found the receipts for towing and transport of wreckage clear, and payment vouchers countersigned by payees (e.g. casual labourers) are evidence of payment. The invoice for assessment charges was accompanied by a receipt. The trial court's blanket rejection without addressing each document was wrong.

p. 6
04

Admissibility of the assessor's loss assessment report

Holding

The trial judge erred in rejecting the report as irrelevant or as the property of Norbixin (K) Ltd, and in invoking section 23 of the Evidence Act on without-prejudice admissions; the report was produced without objection and was admissible and relevant.

Reasoning

The log book showed the appellant as registered owner and the report's address matched the appellant's; there was ample nexus with the appellant. Section 23 concerns admissions between parties to a civil dispute, not a third-party assessor's report produced with the consent of all parties. The judge's reliance on the same Norbixin-addressed motor vehicle records inconsistently exposed the error.

p. 9
05

Measure of damages for a destroyed vehicle and the civil standard of proof

Holding

The appellant proved his loss on a balance of probability and was entitled to the pre-accident value less salvage proceeds, being KShs.2,330,000/-.

Reasoning

Applying Kenya Industrial Industries Ltd v Lee Enterprises Ltd, where goods are destroyed the measure is replacement cost, i.e. market value at the time and place of destruction. The assessor's valuation of KShs.2,600,000/- less KShs.270,000/- salvage represented the appellant's replacement cost of the written-off lorry.

p. 10

Legal principles established

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  • A final criminal conviction, after expiry of the appeal period, is conclusive evidence of guilt in subsequent civil proceedings arising from the same facts, under section 47A of the Evidence Act
  • Where it is proved that a negligently driven car caused damage, a presumption arises in the absence of contrary evidence that it was driven by a person for whose negligence the owner is responsible
  • Section 23 of the Evidence Act excludes only without-prejudice admissions between parties to a civil dispute made on an express or implied understanding that they will not be relied upon in court; it does not apply to third-party documents such as an assessor's report
  • Where goods are destroyed, the normal measure of damages is the cost of replacement, that is the market value at the time and place of destruction
  • A payment voucher may, depending on its meaning and context, constitute confirmation of payment and be evidence of payment in a claim for special damages

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court dismissing the appellant's suit set aside
  3. 3.Judgment entered for the appellant against the 1st and 3rd respondents for KShs.2,481,000/- (KShs.2,330,000/- pre-accident value of KAH 141H-ZA 5542 plus KShs.151,000/- special damages)
  4. 4.The sum of KShs.2,481,000/- to attract interest from the date of filing suit till payment in full
  5. 5.Appellant to have the costs of the suit in the Court of Appeal and in the High Court

Authorities

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Legislation

  • Traffic Act, Cap 403 Laws of Kenyasection 46
  • Evidence Act, Cap 80 Laws of Kenyasection 47A
  • Evidence Act, Cap 80 Laws of Kenyasection 23
  • Evidence Act, Cap 80 Laws of Kenyasection 134
  • Uganda Evidence Actsection 22

Cases cited (13)

  • Selle v Associated Motor Boat Company Ltd
    (1968) EA 123
  • Kenya Ports Authority v Kuston (Kenya) Ltd
    (2009) 2 EA 212
  • PIL Kenya Ltd v Oppong
    (2009) KLR 442
  • Anyanzwa v Gasperis
    Civil Appeal No. 31 of 1981 (Unreported)
  • Hewitt v Bonvin & Another
    (1940) 1 KB 188
  • Vyas Industries v Diocese of Meru
    (1982) KLR 1
  • Karisa v Solanki
    (1969) EA 318
  • Chemwolo & Another v Kubende
    (1986) KLR 492
  • Queens Cleaners and Dyers Ltd v E A Community & Others
  • Banque Indosuez v D J. Lowe & Company Ltd
    (2006) 2 KLR 208
  • Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority
    (2009) KLR 720
  • Kaggwa v New Vision Printing and Publishing Corporation and Others
    (2012) 2 EA 187
  • Kenya Industrial Industries Ltd v Lee Enterprises Ltd
    (2009) KLR 135
On appeal from
High Court of Kenya at Nairobi
MKS HCCC No. 1406 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court (Constitution and Appellate Jurisdiction Act); judgment styled 'JUDGMENT OF THE COURT' from a first appeal against the decree of 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 (9)

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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, "Abdi Ali Dere v Firoz Hussein Tundal & 2 others [2013] KECA 167 (KLR)", Case Analysis (2013). Civil Appeal No. 310 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/167/eng@2013-09-20

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