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Court of AppealPartially AllowedCivil Appeal No. 91 of 2018

Onchangu (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Nyasimi & another (Civil Appeal 91 of 2018) [2019] KECA 434 (KLR)

Court of Appeal
31 July 2019
ASAsike-MakhandiaKIKiageOTOtieno-Odek
3,325 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that passengers injured in road accidents don't have to prove how the crash happened — vehicle owners must prove they weren't negligent.

What this practically means

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Executive summary

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The appellant, as personal representative of the estate of Anthony Nyabondo Onchangu, sued the respondents (owner and driver of motor vehicle KAY 718S) after the deceased, a fare-paying passenger, died in a head-on collision. The trial magistrate found the respondents 100% liable under res ipsa loquitor and awarded Ksh. 5,145,000/=. On first appeal, Majanja J. of the High Court at Kisumu set aside that judgment entirely and dismissed the suit, holding that negligence was not proved on a balance of probabilities because there was no evidence of how the accident occurred, while indicating that on quantum he would have awarded Ksh. 12,135,000/=. The Court of Appeal (Asike-Makhandia, Kiage and Otieno-Odek, JJA), in a single judgment of the court, allowed the second appeal. Confined to matters of law by section 72(1) of the Civil Procedure Act, the Court held that where the injured or deceased person was a passenger, res ipsa loquitor applies once the occurrence of the accident and passenger status are proved; the police abstract sufficed, and the respondents led no evidence to displace negligence. The judge erred in distinguishing Hussein Omar Farah and Baker v Market Harborough: as between a passenger and the owners/drivers of the two colliding vehicles, liability is 100% joint and several, with no apportionment unless the passenger's negligence is proved. The Court set aside the dismissal, substituted a finding of liability, adopted the judge's quantum of Ksh. 12,135,000/= jointly and severally, and allowed the appeal with costs.

Questions the Court framed

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

  1. 1.Whether the learned judge erred in holding that the doctrine of res ipsa loquitor did not apply to the facts of this case
  2. 2.Whether the learned judge correctly distinguished the decisions of the Court of Appeal that have held that res ipsa loquitor applies where a claimant has proved that a road traffic accident occurred and a passenger suffered injury or died
  3. 3.Whether the learned judge erred in his re-evaluation of the evidence on record in relation to the probable liability of the respondents

Key legal issues

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01

Applicability of res ipsa loquitor where the deceased was a fare-paying passenger

Holding

The doctrine applies where the injured or deceased person was a passenger; proof of the occurrence of the accident and passenger status suffices, and the trial magistrate correctly applied it.

Reasoning

The Court held that a passenger cannot ordinarily know how the accident occurred; once the accident and passenger status are proved, an inference of negligence arises unless the defendant explains the accident consistently with due care. Here the police abstract proved the accident and the deceased's passenger status, and the respondents led no evidence to displace negligence, so the judge erred in holding the doctrine inapplicable.

p. 4
02

Burden of proof of negligence by a passenger claimant

Holding

A passenger claimant need not prove how the accident occurred; it suffices to prove the accident and passenger status, after which the onus shifts to the defendant to show absence of negligence.

Reasoning

The judge had held that a claimant must prove how the accident occurred, requiring eyewitness testimony or a police report with sketch maps. The Court rejected this, holding that in a negligence claim the elements are causation and blameworthiness; where res ipsa loquitor applies, negligence is inevitable in the absence of any explanation showing the respondent was not negligent. The respondents pleaded the deceased's negligence but led no evidence to prove it.

p. 4
03

Apportionment of liability between defendants where a passenger sues owners of colliding vehicles

Holding

The judge erred in distinguishing authorities on apportionment; as between a passenger and the owners/drivers of the two vehicles, liability is 100% joint and several unless the passenger was negligent.

Reasoning

The judge distinguished Hussein Omar Farah and Baker v Market Harborough on the basis that those cases concerned apportionment between defendants. The Court held this distinction erroneous: apportionment may arise as between the two colliding vehicles, but not as against a passenger unless the passenger's own negligence is proved. Neither driver escaped liability in those authorities.

p. 4
04

Scope of a second appeal

Holding

A second appeal is confined to matters of law only, per section 72(1) of the Civil Procedure Act.

Reasoning

The Court invoked section 72(1) of the Civil Procedure Act and Kenya Breweries Ltd v Godfrey Odoyo, confirming that a second appellate court resists the temptation of delving into matters of fact, confining itself to matters of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse. The errors identified here were errors of law in the application of res ipsa loquitor.

p. 3

Legal principles established

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  • Where the deceased or injured person was a passenger in a motor vehicle involved in an accident, the doctrine of res ipsa loquitor applies and what must be proved is only the occurrence of the accident and that the injured or deceased person was a passenger in the vehicle.
  • As between a passenger and the owners/drivers of two vehicles involved in a collision, liability of the owners is 100% joint and several, and no question of apportionment arises unless the passenger's negligence is proved.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The order of the High Court dismissing the appellant's suit is set aside and substituted with a finding of liability on the part of the respondents
  3. 3.Judgment entered against the respondents jointly and severally in the sum of Ksh. 12,135,000/= (Ksh. 20,000 for pain and suffering; Ksh. 150,000 for loss of expectation of life; Ksh. 11,900,000 for lost years; Ksh. 65,000 for special damages)
  4. 4.The appeal is allowed with costs

The bench

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

AS
majority

Wrote the judgment

KI
majority

Wrote the judgment

OT
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisumu
HCCA No. 98 of 2016
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act, Chapter 21 Laws of Kenya (second appeal on matters of law only)

Relief refused

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Appeal against quantum of damages as would have been awarded by the learned judge

The appellant only appealed against dismissal on liability, not quantum; the Court adopted the judge's own quantum findings

p. 2

Costs

The appeal be and is hereby allowed with costs. The judgment is silent as to costs in the courts below; the appeal was allowed with costs against the respondents.

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.

The doctrine of res ipsa loquitor applies in cases where the deceased or an injured person is a passenger in a motor vehicle involved in an accident. In such cases, what must be proved is the occurrence of the accident and that the person injured or deceased was a passenger in vehicle.
p. 4Res ipsa loquitor - passenger cases
as between a passenger and the owners/drivers of the two vehicles involved in the accident, liability on the part of the owners is 100% joint and several and no question of apportionment arises unless it is proved the passenger was negligent.
p. 4Joint and several liability of vehicle owners to a passenger
The upshot is that this appeal has merit and is hereby allowed. We vary the judgment of the learned judge to the extent that we set aside the order dismissing the appellant's suit and substitute in its place a finding of liability on the part of the respondents in favour of the appellant.
p. 4Disposition - variation of the High Court judgment
We adopt and affirm the quantum of damages proposed by the learned judge and we hereby enter judgment against the respondents jointly and severally in the sum of Ksh. 12, 135,000/=
p. 4Final orders - quantum adopted and judgment entered

Issues in the judgment

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minor

The judgment refers to the doctrine inconsistently as 'res ipsa loquitor' and 'res ipsa loquitur', and at one point prints 'the principle of t res ipsa loquitor'

minor

The cost order states the appeal is allowed 'with costs' but does not expressly address costs of the two courts below

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, "Onchangu (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Nyasimi & another (Civil Appeal 91 of 2018) [2019] KECA 434 (KLR)", Case Analysis (2019). Civil Appeal No. 91 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/434/eng@2019-07-31

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