Tungwa & another v Board of Trustees Pandya Memorial Hospital
The bottom line
#Kenya's Court of Appeal confirmed that accident victims must prove who controlled a wall or structure before negligence can be presumed against a property owner.
What this practically means
#Executive summary
#Key legal issues
#Whether res ipsa loquitur shifted the evidential burden to the respondent
The doctrine was not available because the appellants did not show that the wall was under the respondent's control and management or that the circumstances pointed to the respondent's negligence rather than another person's.
The Court restated the pre-requisites from Martlin A. Waindi and Scott v The London and St Katherine Docks Company: an unexplained occurrence, one not happening in the ordinary course without negligence, and circumstances pointing to the defendant rather than any other person. Evidence showed neither the appellants nor the respondent knew who constructed the wall, so control was never established and the burden never shifted.
Whether failure to institute third party proceedings against Mbaraki Girls Secondary School rendered the respondent liable
No. Third party procedure applies only where the defendant claims indemnity or a substantially connected relief; the respondent merely defended a negligence claim without seeking to shift blame, so non-joinder was not an admission of ownership or liability.
The Court adopted the High Court's reading of Order 1 rule 15 and the authorities of Sango Bay Estates, Baxter v France and Barclays Bank v Tom on the object of third party procedure - to settle all disputes in one action and bind the third party. Nothing on record showed the respondent sought indemnity; the pleadings raised no issue as between the respondent and the school.
Scope of the second appellate court's jurisdiction
The mandate on second appeal is limited to points of law; most of the appellants' grounds raised evidential matters of fact outside that scope, save for the res ipsa loquitur and third party grounds.
Relying on section 72(1) of the Civil Procedure Act and Stanley N. Muriithi and Kenya Breweries Ltd v Godfrey Odoyo, the Court held it must resist delving into matters of fact and accept the findings of the two courts below unless no reasonable tribunal could have reached them.
Legal principles established
#- On second appeal, the Court of Appeal is confined to matters of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- Res ipsa loquitur cannot be invoked unless the circumstances point to the defendant's negligence rather than that of any other person.
- A court will not base its decision on unpleaded issues; issues determined must flow from the pleadings, save where parties lead evidence and address the unpleaded issues at trial.
- Third party proceedings under Order 1 rule 15 lie only where the defendant claims contribution, indemnity, or a relief or question substantially connected with the subject matter; failure to join a third party is not an admission of liability.
Court orders
#- 1.The appeal fails and is dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- HCCA No. 217 of 2019
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act - second appeal limited to points of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tungwa & another v Board of Trustees Pandya Memorial Hospital", Case Analysis (2024). Civil Appeal E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1916/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.