Mohamed v Remji (Civil Appeal E117 of 2021) [2024] KECA 1311 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a sudden tyre burst can excuse a driver from blame in a road accident, so the injured pedestrian's claim failed.
What this practically means
#Executive summary
#Key legal issues
#Scope of second appeals in the Court of Appeal
The Court is confined to questions of law and must resist delving into concurrent findings of fact absent error or perversity.
The Court restated the established principle, drawing on Kenya Breweries Ltd v Godfrey Odoyo and Stephen Muriungi v Republic, that a second appellate court must accept the findings of fact of the lower courts and may only intervene where matters that should not have been considered were considered, matters that should have been considered were omitted, or the entire decision is perverse.
Application and rebuttal of res ipsa loquitur
Although the circumstances of the accident raised a rebuttable presumption of negligence, the respondent rebutted it by demonstrating a sudden tyre burst, a defect-free vehicle, no speeding, and the driver's reasonable efforts to control the vehicle.
The Court accepted that where a vehicle leaves the road and injures a pedestrian off the road, negligence would ordinarily be inferred absent a plausible explanation. However, an inspection report showed no pre-accident defects, there was no evidence of overspeeding, and the driver braked, hooted and swerved in a sudden emergency. The trial magistrate's assessment of the driver's candour was supported by the evidence, and the courts below correctly relied on Bellita Kennedy and Kago v Njenga.
Whether the decision was based on unpleaded matter (tyre burst)
The defence plea of supervening unforeseeable circumstances beyond the driver's control, together with the driver's witness statement filed before trial giving particulars of the tyre burst, gave the appellant ample notice; no prejudice was suffered.
Order 2 of the Civil Procedure Rules requires pleadings to contain only material facts, not evidence. Although particulars of the supervening circumstances would have been useful in the defence, they were supplied long before trial in the driver's witness statement. Pleadings need only give the opposing party fair notice; since no prejudice was shown, the omission to plead tyre burst specifically was not fatal.
Whether the High Court failed to deal with quantum of damages
The complaint was not borne out by the record; the High Court reviewed and concurred with the trial court's assessment of the awards that would have been granted had liability been established.
The trial magistrate had, despite dismissing the claim on liability, considered rival submissions on quantum and rendered an opinion on the awards she would have granted. The High Court reviewed the same and concurred. There was therefore no merit in the appellant's complaint that damages were not addressed.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to questions of law and must accept concurrent findings of fact unless they are not based on the evidence or the decision is perverse.
- Where res ipsa loquitur applies, the defendant can escape liability by showing either absence of negligence, a probable cause not connoting negligence, or circumstances beyond his control.
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs
- On appeal from
- High Court at Mombasa
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal on questions of law only, under the Court's appellate jurisdiction (statute not specified in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed v Remji (Civil Appeal E117 of 2021) [2024] KECA 1311 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1311/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.