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Court of AppealDismissedCivil Appeal 82 of 2018· [2022] KECA 477 (KLR)

Teresia Wangari Keziah and Mukui Muigai (Personal Representatives of the Late Isaac Macharia Mutunga) v Lochab Transport Limited

Court of Appeal
18 March 2022
3,956 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that accident victims must prove who caused a crash — a collision alone doesn't establish fault.

What this practically means

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Executive summary

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This is a second appeal against the High Court at Naivasha (Meoli J.) which had set aside a trial magistrate's judgment awarding the appellants, personal representatives of a road accident victim, Kshs. 2,080,500 in general damages. The deceased died when the vehicle in which he was travelling (Yuasa) collided with a vehicle owned by the respondent (ZC) on the Naivasha-Maai Mahiu road. The High Court had held that the trial court's finding on liability was based on no evidence and misapplied the principles on joinder of third parties, and substituted dismissal of the suit. The Court of Appeal (Musinga, Okwengu and Asike-Makhandia, JJA) framed a single issue of law: whether the High Court was right in overturning the trial judgment for failure to prove the respondent's culpability. The court reaffirmed that on a second appeal it confines itself to matters of law, and that there is no liability without fault in Kenya. It found that no eyewitness for the appellants testified, police investigations were never concluded, and the only witness to the accident was the respondent's driver, who denied causing it. The mere occurrence of a collision does not establish culpability. The court also held that res ipsa loquitur is not a principle of law raising any presumption, need not be pleaded, and was inapplicable to a two-vehicle collision where negligence was not proved on a balance of probability. The appeal was dismissed with each party bearing its own costs, thereby affirming the High Court's decision.

Key legal issues

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01

Burden of proof of negligence in road traffic accidents

Holding

The appellants, as plaintiffs, bore the burden of proving negligence against the respondent and failed to discharge it; no eyewitness for the appellants testified and the police never concluded investigations or charged the driver.

Reasoning

The court applied the settled rule that he who alleges negligence must prove it, citing East Produce Kenya Ltd v Osiro and Kiema Mutuku. The only witness to the accident was the respondent's driver, who denied causing it. Without evidence proving the particulars of negligence alleged, the averments remained mere allegations with no evidential value, and the High Court was right to overturn the trial magistrate's finding on liability.

p. 5
02

Applicability of res ipsa loquitur to a two-vehicle collision

Holding

The doctrine was inapplicable; it does not raise a presumption of law, need not be pleaded, and cannot be invoked where negligence was not proved on a balance of probability.

Reasoning

Relying on Margaret Waithera Maina v Kimaru, Ratcliffe v Plymouth, and Sally Kibii v Francis Ogaro, the court held that res ipsa loquitur applies where the subject matter is entirely under one party's control and the accident would not ordinarily happen without negligence. A collision between two vehicles on a road with poor weather and no eyewitness does not permit an assumption that negligence lay with the respondent rather than the other vehicle.

p. 7
03

Joinder of the owner and driver of the vehicle in which the deceased was travelling

Holding

The appellants should have joined the owner and driver of Yuasa so that liability, whether whole or contributory, could be effectively determined; failure to do so did not defeat the suit but left the negligence claim unproven.

Reasoning

The deceased was a passenger in Yuasa, not in the respondent's vehicle, so Yuasa owed the deceased the greater duty of care. Order 1 rule 15 places the duty to initiate third party proceedings on the defendant, and Order 1 rule 9 bars defeat of a suit for non-joinder, but the appellants' failure to bring on board the Yuasa parties meant the defence blaming Yuasa could not be tested and the claim against the respondent failed for want of proof.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to matters of law only, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • There is no liability without fault in Kenya; a plaintiff claiming negligence must prove some negligence against the defendant.
  • Res ipsa loquitur is not a principle of law raising a presumption; it need not be pleaded and is merely a guide to identifying a prima facie case.
  • The mere occurrence of a collision between two vehicles does not of itself establish the culpability of one driver; the plaintiff must prove facts giving rise to a res ipsa loquitur situation.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 143
  • Civil Procedure ActSection 72(1)
  • Civil Procedure RulesOrder 1 Rule 15
  • Civil Procedure RulesOrder 1 Rule 9

Cases cited (21)

  • Malawi Railways Limited Vs. Nyasulu
    [1998] MWSC 3

    Parties are bound by their pleadings

  • John Fanuel Awiti Ogol Vs. Murithi
    [1985] eKLR

    Trial court's advantage in seeing and hearing witnesses

  • Embu Public Road Services Limited Vs. Riimi
    [1968] EA 22

    Prima facie inference of negligence from proved facts

  • Turfena Achieng Abuto & Another Vs. William Ambani Mise C/o Ahero Total Service Station & Another
    [1995] eKLR

    Quoting Embu Public Road Services on prima facie negligence

  • David Onchangu Orioki suing as personal representative of Anthony Nyabondo Ochangu (Deceased) Vs. Ismael Nyasimi & Charles Michieki Nyaungo
    [2019] eKLR

    Invocation of res ipsa loquitur (cited by appellants)

  • Fred Ben Okoth Vs. Equator Bottlers Limited
    [2015] eKLR

    Invocation of res ipsa loquitur (cited by appellants)

  • Naomi Kemunto Vs. Total (K) Limited and Kisii Total Service Station
    Kisii Total Service Station (Kisumu Civil Appeal No. 211 of 2008 (UR)

    Second appeal confined to matters of law (cited by respondent)

  • Maina Vs. Mugiria
    [1983] KLR 78

    Second appeal confined to matters of law

  • Stanley N. Muriithi & Another Vs. Bernard Munene Ithiga
    [2016] eKLR

    Second appeal confined to matters of law

  • Stapley Vs. Gypsum Mines Limited (2)
    (1953) A.C 663

    Causation determined by common sense, not scientific theory

  • East Produce Kenya Limited Vs. Christopher Astiado Osiro
    [2006] eKLR

    He who alleges negligence bears the burden of proof

  • Kiema Mutuku Vs. Kenya Cargo Hauling Services Ltd
    [1991] 2 KAR 258

    No liability without fault; plaintiff must prove negligence

  • Hay or Bourhill Vs. James Young
    [1943] AC 92

    Scope of a driver's duty of care

  • Lochgelly Iron Court Co. Ltd Vs. Mcmillan
    [1934] AC

    Legal meaning of negligence involving duty, breach and damage

  • M. Jones Vs. Livior Quarries Ltd
    [1992] 2QB 608

    Definition of contributory negligence

  • Margaret Waithera Maina Vs. Michael K. Kimaru
    [2017] eKLR

    Nature and application of res ipsa loquitur

  • Ratcli e Vs. Plymouth & Tobay HA
    1998 PIQR 170

    Res ipsa loquitur not a principle of law; replaced by prima facie case

  • Nandwa Vs. Kenya Kazi Ltd
    Civil Appeal No. 91 of 1987

    Res ipsa loquitur need not be pleaded; evidence is not to be pleaded

  • Bennet Vs. Chemical Construction (GB) Ltd
    3 All ER 822

    Not necessary to plead the doctrine; enough to prove the facts

  • Sally Kibii & Another Vs. Francis Ogaro
    [2012] eKLR

    Res ipsa loquitur inapplicable to two-car collisions without proof of facts

  • Bikwatirizo V Railway Corporation
    [1971] E.A 82

    Doctrine applies where subject matter entirely under one party's control

On appeal from
High Court of Kenya at Naivasha
Civil Appeal No. 37 of 2015
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable provisions of the Civil Procedure Act (Section 72(1) raised by the respondent as limiting the appeal to matters of law)

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, "Teresia Wangari Keziah and Mukui Muigai (Personal Representatives of the Late Isaac Macharia Mutunga) v Lochab Transport Limited", Case Analysis (2022). Civil Appeal 82 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/477/eng@2022-03-18

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