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Court of AppealDismissedCivil Appeal 100 of 2004· [2013] KECA 346 (KLR)

Kenya Bus Services Limited & Another v Githae Gatururi [2013] KECA 346 (KLR)

Court of Appeal of Kenya
12 April 2013
Martha Karambu KoomeM. K. KoomeDMD. K. MusingaWilliam OukoW. Ouko
1,842 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that bus companies must fully compensate injured or killed fare-paying passengers and cannot shift blame by dropping third-party claims.

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 against the judgment of Ang'awa J (High Court, HCC No. 2330 of 1998, dated 18th December 2002), which held Kenya Bus Services Limited and its driver 100% jointly and severally liable for a 1996 road accident in which the respondent's son, a fare-paying passenger on the bus, died, and awarded Kshs. 870,000/= in general damages under the Law Reform Act, including lost-years damages. The appellants contended that liability was wrongly based on their failure to pursue the third party (owner of the lorry involved), that negligence was not proved, and that the multiplicand of Kshs. 20,000/= lacked evidential foundation. The Court, in a single joint judgment, found that the respondent proved the pleaded particulars of negligence, preferring the eyewitness account of the deceased's brother over that of the bus conductor in the absence of testimony from the bus driver. It held that the carrier's duty to carry the deceased safely persisted notwithstanding the abandonment of third-party proceedings. On quantum, it reaffirmed the settled standard for appellate interference with damages and held that proof on a balance of probability of the deceased's admission to the Kenya Polytechnic and likely future earnings discharged the respondent's burden, adopting the Gammell v Wilson principles on lost-years assessment. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Liability for the road accident despite withdrawal of third-party proceedings

Holding

The respondent proved the pleaded particulars of negligence; the bus driver did not testify and the conductor's account was found less credible than the deceased's brother's evidence. Abandonment of the third-party notice meant the appellants had to bear full liability.

Reasoning

The Court assessed the conflicting eyewitness accounts, preferring the evidence of the deceased's brother, who was travelling with him, because the bus driver did not testify and the conductor's ability to witness the accident was doubtful. As the deceased was a fare-paying passenger not blamed for the accident, the carrier owed him a duty of safe carriage. The appellants' withdrawal of the third-party proceedings meant they could not shift blame to the lorry's owner.

p. 3
02

Standard for appellate interference with quantum

Holding

The award could not be disturbed absent demonstration of error in principle or misapprehension of evidence; the multiplicand of Kshs. 20,000/= was justified on the evidence of the deceased's admission to the Kenya Polytechnic.

Reasoning

Applying the established principles, the Court held the burden was only to show on a balance of probability that the deceased was a student likely to earn Kshs. 20,000/= monthly upon graduation. Evidence showed he had been admitted to the Polytechnic three days before his death, so the burden was discharged, applying the Gammell v Wilson principles on lost-years assessment.

p. 4

Legal principles established

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  • An appellate court will only disturb an award of damages if the award is inordinately too low or too high such that it represents an entirely erroneous estimate, or the trial court proceeded on a wrong principle or misapprehended the evidence in some material respect
  • A carrier of fare-paying passengers owes a duty to carry them safely as far as reasonable care and forethought can attain; abandoning third-party proceedings does not relieve the carrier of full liability
  • The burden of proof on lost-years claims is discharged by demonstrating, on a balance of probability, the deceased's course of study and likely future earnings

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Law Reform Actnot specified (general damages; lost years)

Cases cited (3)

  • Sheikh Mushtaq Hassan v. Nathan Mwangi Kamau Transporters & 5 others
    (1982 – 88) 1 KAR 946
  • Roger Dainty v. Mwinyi Omar Haji and another
    Civil Appeal No. 59 of 2004
  • Gammell v. Wilson
    [1981] 1 ALL ER 578
On appeal from
High Court of Kenya at Nairobi
HCC No. 2330 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (implied appellate jurisdiction under the Constitution/Judicature Act; no provision expressly cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kenya Bus Services Limited & Another v Githae Gatururi [2013] KECA 346 (KLR)", Case Analysis (2013). Civil Appeal 100 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/346/eng@2013-04-12

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