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Court of AppealDismissedCivil Appeal No. 279 of 2016· [2020] KECA 155 (KLR)

Joyce Gathoni Wathena & another (Suing as Personal Representatives of Estate of Simon Kiarie Mburu v Mbugua David & another [2020] KECA 155 (KLR)

Court of Appeal
20 November 2020
2,003 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 whoever claims negligence must prove it, and second appeals only examine questions of law, not facts.

What this practically means

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Executive summary

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This second appeal before the Court of Appeal at Nairobi (Ouko P, Warsame and Gatembu Kairu JJA) arose from a fatal road traffic accident of 15th May 2012 on the Oloitoktok-Emali Road, in which the deceased, Simon Kiarie Mburu, riding a motorcycle, collided with a trailer. His mother and wife, as personal representatives, sued for damages under the Law Reform Act and the Fatal Accidents Act. The Resident Magistrate apportioned liability 65% against the deceased and 35% against the trailer driver and awarded damages subject to apportionment. On first appeal, Nyakundi J of the High Court at Kajiado set aside that apportionment, finding the evidence proved no negligence by the driver and that the deceased, who contravened the Highway Code, was wholly responsible. The appellants appealed to the Court of Appeal, arguing the Judge applied wrong principles on burden of proof and the standard of care, and urging equal apportionment of blame relying on Lakhamishi v Attorney General. The Court, applying Section 72(1) of the Civil Procedure Act, confined itself to matters of law. It held the burden of proving negligence lies on the party alleging it, found the concurrent factual findings that the deceased crossed the road unsafely before a vehicle with right of way could not be disturbed, and agreed the trial court's apportionment rested on no evidence. The appeal was dismissed. The judgment binds lower courts on the restricted scope of second appeals and the burden of proof in negligence actions.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to matters of law; the Court will not interfere with concurrent findings of fact unless shown to be perverse or based on wrong principles

Reasoning

Section 72(1) of the Civil Procedure Act restricts second appeals to questions of law. The court may intervene only where the lower courts considered matters they should not have, failed to consider matters they should have, or where the decision is perverse. Both lower courts had made concurrent findings that the deceased crossed into the path of a vehicle with right of way, and these findings of fact were not open to interference.

p. 2
02

Burden of proof in negligence

Holding

The party alleging negligence bears the burden of proving it; no inference of negligence arises merely because the defendant did not prove the speed driven

Reasoning

The appellants argued the respondent failed to show satisfactory efforts to avoid the accident or prove his speed, so negligence should be inferred. The court rejected this, holding that in a negligence action the burden lies on the party alleging it. The evidence, including that of the investigating officer, showed the point of impact at the frontal centre of the trailer, no skid marks, and the motorcycle crossing from left to right, establishing the deceased as the responsible party.

p. 3
03

Duty of the first appellate court and departure from trial court findings

Holding

The High Court properly discharged its first appellate duty in faulting the trial court's apportionment of liability as based on no evidence

Reasoning

The High Court, upon re-evaluation, found no evidential basis for the trial magistrate's 65:35 apportionment, since no witness had seen how the accident occurred and the trial court had misapprehended the evidence. The Court of Appeal found the Judge considered no irrelevant matters and omitted no relevant material, and declined to depart from that conclusion. Equal apportionment under Lakhamishi was inapplicable because there was no conflicting evidence.

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 is restricted to matters of law and will not disturb findings of fact of the lower courts unless they are based on no evidence, a misapprehension of the evidence, or wrong principles
  • The first appellate court must reconsider and evaluate the evidence and draw its own conclusions, and an appellate court will interfere only where the finding is based on no evidence, a misapprehension of the evidence or wrong principles
  • In an action for negligence, the burden of proof lies upon the party alleging it

Court orders

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  1. 1.The appeal is dismissed

Authorities

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Legislation

  • Law Reform Actnull
  • Fatal Accidents Actnull
  • Civil Procedure ActSection 72(1)

Cases cited (4)

  • Kenya Breweries Ltd. vs. Odongo
    Civil Appeal No. 127 of 2007
  • Ephantus Mwangi & Another vs. Wambugu
    (1983) 2 KCA 100
  • John Onyango & another vs. Samson Luwayi
    [1986] eKLR
  • Abdul v Rubia
    1917/1918 7 EALR 73
On appeal from
High Court of Kenya at Kajiado
HC Civil Appeal No. 42 of 2015
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joyce Gathoni Wathena & another (Suing as Personal Representatives of Estate of Simon Kiarie Mburu v Mbugua David & another [2020] KECA 155 (KLR)", Case Analysis (2020). Civil Appeal No. 279 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/155/eng@2020-11-20

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