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Court of AppealPartially AllowedCivil Appeal No. 89 of 2010· [2013] KECA 194 (KLR)

Akamba Public Road Services Limited v Tabitha Kerubo Omambia

Court of Appeal of Kenya
11 October 2013
OOOnyango OtienoAZAzangalalaOKole Kantai
3,944 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed an employer must pay for its driver's accident after an unappealed traffic conviction, and interest now runs from the date of filing suit.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the High Court at Kakamega (G. B. M. Kariuki, J) of 15 February 2007, awarding the respondent damages for the total loss of her matatu KAG 857J in an accident with the appellant's vehicle on 11 September 1999, together with loss of business, interest from judgment and costs. A three-judge bench of the Court of Appeal at Kisumu (Onyango Otieno, Azangalala and ole Kantai, JJ.A) delivered a single joint judgment. The court reiterated the duty of a first appellate court to reconsider the evidence and reach its own conclusions while deferring to the trial judge's advantage of observing witnesses. It held, first, that the appellant was vicariously liable: its driver had been convicted in a traffic court of an offence arising from the accident, the conviction was unappealed, and under section 47A of the Evidence Act it was conclusive evidence of guilt; the appellant had called no evidence to rebut negligence or contributory negligence. Second, the respondent had locus standi: under section 20(a) of the Sale of Goods Act, property in the vehicle passed on execution of the sale agreement despite retention of the log book as security for the unpaid balance. Third, the special damages (Kshs. 680,000 for the vehicle and Kshs. 2,500 per day for 21 days' loss of business) were strictly pleaded and proved. All grounds of appeal failed. On the cross-appeal, the court allowed it in part, holding that in a liquidated claim interest should run from the date of filing suit unless the judge gives reasons to depart from that practice. The appeal was dismissed with costs; the respondent also received costs of the cross-appeal. The decision below was affirmed except for the interest order, which was varied.

Key legal issues

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01

Vicarious liability based on criminal conviction of the driver

Holding

The appellant was vicariously liable; the driver's conviction, unappealed, was conclusive proof of guilt and the appellant led no evidence to rebut negligence or contributory negligence.

Reasoning

Section 47A of the Evidence Act makes a final criminal judgment conclusive evidence of guilt after the appeal period. The police traffic file showed the appellant's driver was tried, convicted and fined for causing death by dangerous driving. No appeal was preferred and the appellant called no evidence to rebut the respondent's case or prove particulars of negligence in its defence.

p. 4
02

Locus standi / passage of property in the motor vehicle

Holding

Property in the motor vehicle passed to the respondent on execution of the sale agreement; she had ownership and standing to sue despite retention of the log book by the seller as security.

Reasoning

Applying section 20(a) of the Sale of Goods Act, the contract was unconditional for specific goods in a deliverable state, so property passed when the contract was made. The respondent paid a substantial part of the price, took immediate possession and deployed the vehicle on the road; retention of the log book and transfer form was merely security for the unpaid balance.

p. 6
03

Strict proof of special damages

Holding

The claim for loss of the vehicle (valued at Kshs. 680,000 with depreciation) and loss of business (Kshs. 2,500 per day for 21 days) was specifically proved; the trial judge correctly exercised his discretion on valuation.

Reasoning

The respondent tendered the sale agreement, assessors report, police abstract and records of daily earnings. The trial judge discounted the valuation report for lack of expertise but reasonably took the purchase price as reflecting value, less one month's depreciation. The parties' counsel had concurred on 21 days' loss of earnings. The Court found the awards proved and reasonable.

p. 5
04

Burden of proof / contributory negligence

Holding

The trial judge did not shift the burden of proof, and the contributory negligence claim failed because the appellant never called evidence.

Reasoning

The appellant alleged the judge required it to disprove the respondent's case. The court found the judge merely analyzed the material before him. On contributory negligence, the appellant neither rebutted the plaintiff's case nor proved its particulars of negligence by evidence, so the ground could not stand.

p. 5
05

Cross-appeal on interest

Holding

Interest on a liquidated sum should run from the date of filing suit; the trial judge's departure from that practice without reasons was a misdirection justifying appellate interference.

Reasoning

Section 26(1) of the Civil Procedure Act empowers the court to award interest on the principal sum from the date of the suit to the date of the decree. In a liquidated claim, the usual practice is to award interest from the date of the suit; the judge gave no reason for departing from it, so the Court set aside the interest order and substituted interest from the date of filing suit.

p. 7

Legal principles established

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  • A final judgment of a competent court in criminal proceedings, after expiry of the appeal period, is conclusive evidence of guilt, and where a defendant's driver is convicted for the accident and no appeal is preferred, the trial judge is entitled to find the employer vicariously liable.
  • Special damages must be both pleaded and strictly proved.
  • Where there is an unconditional contract for the sale of specific goods in a deliverable state, property passes to the buyer when the contract is made, even where payment or delivery is postponed; retention of the log book as security does not defeat ownership for purposes of standing to sue.
  • On a first appeal the Court of Appeal must reconsider the whole evidence and reach its own conclusions while deferring to the trial judge's advantage of seeing and hearing witnesses, and may interfere with findings of fact only where based on no evidence, a misapprehension of the evidence, or wrong principles.
  • In a suit for a liquidated sum, interest should ordinarily be awarded from the date of filing suit, and a trial judge departing from that practice must assign reasons.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Cross-appeal allowed to the extent that the order for interest from the date of judgment is set aside and substituted with interest from the date of filing suit until payment in full
  3. 3.Respondent awarded costs of the cross-appeal
On appeal from
High Court of Kenya at Kakamega
Kakamega HCCC No. 32 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution and Appellate Jurisdiction Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Akamba Public Road Services Limited v Tabitha Kerubo Omambia", Case Analysis (2013). Civil Appeal No. 89 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/194/eng@2013-10-11

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