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Court of AppealAllowedCivil Appeal No 42 of 2018

Moses Theuri Ndumia v I G Transporters Limited & another [2018] KECA 297 (KLR)

Court of Appeal of Kenya
20 September 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
2,844 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a defendant who accuses you of fault must prove it with evidence, not just say it in court papers.

What this practically means

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Executive summary

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This was a second appeal before the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) against a High Court judgment of Kamau J at Voi which had, on first appeal, set aside a trial magistrate's award of Kshs.2,825,000 and substituted judgment of Kshs.1,412,500 by apportioning liability equally between the appellant, an injured driver, and the respondents. The sole issue was whether the Judge erred in the 50%-50% apportionment. The appellant had sued after a road accident on the Mombasa-Nairobi Highway, alleging the respondents' driver caused the collision while overtaking; the respondents filed a defence but called no evidence at trial. The High Court, adopting Lord Denning's reasoning in Baker v Market Harborough, held that the absence of a sketch plan showing the point of impact justified equal apportionment. The Court of Appeal, confined to matters of law under Section 72(1) of the Civil Procedure Act, allowed the appeal. It held that the appellant's unchallenged evidence, corroborated by police records, established a prima facie case which the respondents, who asserted contributory negligence, were legally obliged to counter under Sections 107-109 and 112 of the Evidence Act. Baker was distinguished because there both drivers had died and no evidence distinguished them, whereas here one driver testified and the sketch plan issue was never raised at trial. The court set aside the High Court judgment, upheld the trial court's decision, and awarded the appellant costs of both the appeal and the High Court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the first appellate Judge erred in apportioning liability equally between the appellant and the respondents
  2. 2.Whether the conclusion that failure by the appellant to produce the sketch plan showing the point of impact was erroneous and not supported by evidence, such that no reasonable tribunal would reach it - i.e. an issue of law fit for a second appeal

Key legal issues

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01

Scope of a second appeal under Section 72(1) of the Civil Procedure Act

Holding

Only matters of law fall for consideration; the question whether the Judge's conclusion was one no reasonable tribunal would reach on the evidence qualifies as an issue of law.

Reasoning

The court began by invoking Section 72(1), which permits an appeal to the Court of Appeal from a decree passed in appeal by the High Court only where the decision is contrary to law, fails to determine a material issue of law, or contains a substantial procedural error. The court framed the liability apportionment question as one of law because the Judge's conclusion rested on an evidential foundation no reasonable tribunal could adopt.

p. 2
02

Burden and evidential burden of proof where the defence adduces no evidence

Holding

The appellant discharged the burden on a balance of probabilities; uncontroverted evidence established a prima facie case that the respondents were required to counter, including under Section 112 of the Evidence Act.

Reasoning

The appellant and the police officer gave unchallenged evidence that the 1st respondent's driver, while overtaking, caused the collision off the road. The respondents filed a defence but called no evidence. Relying on Sections 107-109 and 112 of the Evidence Act and the Kenya Power v Pamela Awino Ogunyo decision, the court held that a party asserting facts must prove them, and that the respondents had a responsibility to adduce evidence of the point of impact if they had it.

p. 3
03

Whether the High Court erred in apportioning liability 50%-50% for want of a sketch plan

Holding

The Judge erred: the sketch plan issue was never raised at trial or put to the appellant in cross-examination, and the Baker v Market Harborough authority was distinguishable because there was live, uncontroverted evidence identifying the driver to blame.

Reasoning

The court noted the appellant was never taken to task on the sketch plan or point of impact in cross-examination, and the issue surfaced only in the High Court. Baker concerned a collision in the centre of the road where both drivers had died and no evidence distinguished them; here the appellant was alive, testified, and police records attributed blame to the respondents' driver. Equal apportionment was therefore unsupported and an error of law.

p. 3

Legal principles established

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  • On a second appeal under Section 72(1) of the Civil Procedure Act, the Court of Appeal confines itself to matters of law.
  • Where a defendant alleges contributory negligence or other facts in its defence but adduces no evidence, the uncontroverted evidence of the plaintiff and his witnesses stands, and the defendant bears the evidential burden of proving its assertions.
  • Where a party has information that would disprove a prima facie case (e.g. as to the point of impact in a road accident), it has a responsibility to adduce that evidence under Section 112 of the Evidence Act.
  • Baker v Market Harborough (apportionment where both drivers died and no evidence distinguishes them) is distinguishable where one driver testifies and there is uncontroverted evidence identifying the driver to blame; equal apportionment of liability in such circumstances is an error of law.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court dated 20th February 2018 set aside
  3. 3.Decision of the trial court upheld
  4. 4.Appellant awarded costs of this appeal and also of the High Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Voi
High Court Civil Appeal No 8A of 2017
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act, Cap 21 (second appeal on matters of law)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Therefore, by dint of the provisions of Section 72(1) of the Civil Procedure Act, Cap 21 Laws of Kenya only matters of law fall for our consideration.
p. 1Scope of second appeal
In the upshot we allow the appeal set aside the judgment dated 20 th February, 2018 and uphold the decision of the trial court. The appellant shall have the costs of this appeal and also the High court.
p. 3Final orders and costs
In the absence of any evidence from the defence, we are persuaded there was preponderance of evidence by the appellant that amounted to a prima facie case and it required to be countered by the respondents.
p. 3Evidential burden on a defendant who calls no evidence
Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence
p. 3Duty to prove pleaded assertions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Moses Theuri Ndumia v I G Transporters Limited & another [2018] KECA 297 (KLR)", Case Analysis (2018). Civil Appeal No 42 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/297/eng@2018-09-20

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