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Court of AppealAllowedCivil Appeal (Nairobi)

Shikuku v Musyoki & another (Civil Appeal 317 of 2019) [2024] KECA 1460 (KLR)

Court of Appeal of Kenya
25 October 2024
2,222 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a pedestrian's accident award, confirming that unchallenged evidence of a vehicle veering off the road proves negligence.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi against the judgment of the High Court (Githua, J.) delivered on 29th April 2019, which had set aside the judgment of the Chief Magistrates' Court awarding Martin Shikuku damages for injuries sustained in a road traffic accident on Kiserian road on 27th March 2010. The trial magistrate had found the respondents 100% liable and awarded general damages of Ksh.1,200,000, loss of earning capacity, special damages and loss of earnings. The Judge on first appeal held that the appellant had not proved negligence by cogent and credible evidence. The Court of Appeal, comprising Musinga, ole Kantai and Mativo, JJA, in a single joint judgment, restated that on a second appeal its mandate is confined to questions of law. It held that the standard of proof in civil cases is a balance of probabilities and that the appellant's unchallenged evidence that the motor vehicle veered off the road and struck him on a pedestrian walkway discharged that standard; requiring corroboration set the bar too high. The Court agreed that motor vehicles do not ordinarily veer off the road to injure pedestrians, and that such an occurrence is itself evidence of negligence. It concluded that the Judge considered matters she should not have and ignored matters she should have considered. The appeal was allowed, the High Court judgment was set aside, the trial court's judgment was reinstated, and the appellant was awarded costs of the appeal and of the courts below.

Questions the Court framed

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

  1. 1.Whether the Judge on first appeal erred in holding that the appellant had failed to prove negligence and causation on a balance of probabilities
  2. 2.Whether the doctrine of res ipsa loquitur applied to the unchallenged evidence that the motor vehicle veered off the road and struck the appellant
  3. 3.Whether on a second appeal the Court could interfere where the first appellate court considered matters it should not have or ignored matters it should have considered

Key legal issues

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01

Second appeal mandate - matters of law only

Holding

The Court's jurisdiction on a second appeal is confined to questions of law, and it may interfere where the first appellate court considered matters it should not have or ignored matters it should have considered.

Reasoning

Relying on section 72 of the Civil Procedure Act and a line of the Court's own precedents, the Court restated that findings of fact of lower courts are binding unless no reasonable tribunal could have reached them. It found the Judge had departed from that mandate by disregarding the unchallenged evidence, which constituted an error of law justifying interference.

p. 5
02

Standard of proof and unchallenged evidence on negligence

Holding

Unchallenged evidence by the appellant that the respondents' motor vehicle veered off the road and hit him discharged the balance-of-probabilities standard; requiring corroboration set the bar too high.

Reasoning

The respondents adduced no evidence on how the accident occurred. The Court accepted counsel's submission that motor vehicles do not ordinarily veer off the road to injure pedestrians on a pavement, so such an occurrence is itself evidence of negligence. The Police Abstract Reports and medical reports corroborated the occurrence and injuries.

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 lower courts considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • The standard of proof in civil cases is a balance of probabilities; unchallenged evidence that a motor vehicle veered off the road and injured a pedestrian on a walkway suffices to establish negligence, and corroborative evidence need not be demanded.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court in Civil Appeal No. 144 of 2014 set aside
  3. 3.Judgment of the Chief Magistrates' Court in Civil Case No. 6813 of 2010 (Milimani) reinstated
  4. 4.Appellant awarded costs of the appeal and costs of proceedings in the courts below

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Civil Appeal No. 144 of 2014
Jurisdiction invoked
Section 72 of the Civil Procedure Act (second appeal to the Court of Appeal on questions of law only)

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.

This appeal has merit and we allow it. We hereby set aside the judgment of the High Court in Civil Appeal No. 144 of 2014 and substitute it by reinstating the judgment of the Chief Magistrates’ Court Civil Case No. 6813 of 2010 (Milimani).
p. 5Final orders - reversal of first appellate judgment and reinstatement of trial judgment
The appellant will have costs of this appeal as well as costs of the proceedings in the courts below.
p. 5Costs
Although it is true that he who alleges must prove, that standard in civil cases is on a balance of probabilities.
p. 4Standard of proof in civil claims
Requiring the appellant to adduce further or corroborative evidence was to place the standard too high, higher than he was required to do.
p. 4Unchallenged evidence suffices on a balance of probabilities
on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
p. 2Mandate on second appeal

Issues in the judgment

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minor

The judgment does not state the appeal number of the present second appeal in its own body; the caseNumber field can only be inferred from the cover context, and the respondents' names appear with slight spelling variations of the res ipsa loquitur doctrine in submissions.

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, "Shikuku v Musyoki & another (Civil Appeal 317 of 2019) [2024] KECA 1460 (KLR)", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1460/eng@2024-10-25

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