Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedSecond Appeal from Civil Appeal No. 50 of 2012 (High Court, Meru); originating suit Chuka SRMCC No. 28 of 2010· [2022] KECA 76 (KLR)

Pgm (suing As A Legal Representative of The Estate of Kmg Deceased) v Lazarus Mumo Kimathi (on Behalf of The Estate of Erastus Muthamia Kiara (deceased) & 3 others

Court of Appeal of Kenya
4 February 2022
4,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed a fatal accident claim because the family could not prove how the death happened, showing courts need actual evidence of negligence, not assumptions.

What this practically means

#

Executive summary

#
This was a second appeal before the Court of Appeal (Nambuye, Karanja and Laibuta, JJA) against the dismissal by the High Court at Meru (A. Ong'injo, J, 4th May 2017) of the appellant's first appeal, itself arising from the dismissal at trial (Chuka SRMCC No. 28 of 2010) of a fatal road-accident negligence claim brought on behalf of the estate of a seven-year-old boy who died after coming into contact with the respondent's canter lorry at dusk. The appellant raised six grounds, chiefly that the first appellate Judge abdicated her duty to reevaluate the evidence afresh, misapprehended the evidence, failed to address the doctrine of res ipsa loquitur, and failed to address contradictions in the respondent's evidence. The Court confined itself to matters of law on second appeal, applying Maina vs. Mugiria, Kenya Breweries Ltd vs. Godfrey Odongo and Stanley N. Muriithi. It held that the Judge had discharged her first appellate mandate; that the appellant bore the burden of proving the pleaded ingredients of negligence on a balance of probabilities under sections 107-112 of the Evidence Act; that there was no eyewitness who could state how the deceased met his death; that res ipsa loquitur could not apply absent facts from which negligence could be inferred; and that alleged contradictions must be specifically identified before a court can be faulted for not reconciling them. The appeal was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the first appellate court abdicated its duty to reevaluate the evidence and reach an independent conclusion

Holding

The Judge summarised the evidence, considered the trial court's conclusions and expressed herself on them; there was no abdication of the first appellate mandate.

Reasoning

The Court applied the settled standard from Selle vs. Associated Motor Boat Co. and Jabane vs. Olenja, that a first appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses. On revisiting the impugned judgment, the Court found the Judge had summarised the witnesses' evidence, made observations on the trial court's conclusions, and expressed herself thereon. The appellant did not specifically spell out instances of abdication, so the complaint failed.

p. 5
02

Whether the first appellate court misapprehended the evidence on negligence

Holding

The evidence disclosed no eyewitness to the accident; the appellant failed to prove the pleaded ingredients of negligence on a balance of probabilities.

Reasoning

The claim was anchored on negligence, requiring proof that the vehicle was driven carelessly, without proper look-out, without brakes, or at excessive speed, under sections 107-112 of the Evidence Act on a balance of probabilities. PW2 was categorical that the deceased never boarded the vehicle and neither he nor PW3 witnessed the impact; the investigating officer absolved the driver. Both courts below were right that there was no eyewitness who could state categorically how the deceased met his death.

p. 6
03

Whether the doctrine of res ipsa loquitur applied

Holding

The doctrine did not apply because there were no facts from which negligence could be inferred; there was no evidence of how the deceased came into contact with the vehicle.

Reasoning

The Court reviewed the doctrine through Black's Law Dictionary, Nandwa vs. Kenya Kazi Limited, Embu Public Road Services Ltd v Riimi, Margaret Waithera Maina vs. Michael K. Kimaru and other authorities, establishing that the doctrine shifts the evidential onus only where the accident is of a kind that does not ordinarily occur without negligence and the thing was under the defendant's control. Here there was no evidence demonstrating how the deceased came into contact with the vehicle, if at all, so no inference of negligence could be drawn.

p. 8
04

Whether the courts below failed to address contradictions and inconsistencies in the respondent's evidence

Holding

The complaint fails because no contradictions were specifically identified before the courts below or before this Court; a general complaint is insufficient.

Reasoning

The Court stated the applicable principle: where contradictions or inconsistencies are alleged, they must first be pointed out; only then does the court have a duty to reconcile them and determine their impact on the issues in controversy. Neither in the courts below nor before this Court were any contradictions singled out. All that was on record was a general complaint, which the Court held was not sufficient to sustain the ground of appeal.

p. 8

Legal principles established

#
  • On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is demonstrated that the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • The doctrine of res ipsa loquitur applies only where there are facts from which an inference of negligence can be drawn in the absence of explanation; it does not apply where the causation of the accident is unknown.
  • Alleged contradictions in evidence must be specifically pointed out to the court, which then has a duty to reconcile them; a general complaint is insufficient.

Court orders

#
  1. 1.The appeal is dismissed.
  2. 2.Each party to bear own costs.
On appeal from
High Court of Kenya at Meru
Civil Appeal No. 50 of 2012
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework, confined to matters of law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Pgm (suing As A Legal Representative of The Estate of Kmg Deceased) v Lazarus Mumo Kimathi (on Behalf of The Estate of Erastus Muthamia Kiara (deceased) & 3 others", Case Analysis (2022). Second Appeal from Civil Appeal No. 50 of 2012 (High Court, Meru); originating suit Chuka SRMCC No. 28 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/76/eng@2022-02-04

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