David Karobia Kiiru T/A Kinamba General Supplier's & Transport v Kenya Ferry Services & 1 other
The bottom line
#Kenya's Court of Appeal held Kenya Ferry Services 70% liable for a 2005 Likoni lorry accident, but only claims backed by solid evidence were paid.
What this practically means
#Executive summary
#Key legal issues
#Who is to blame for the accident of 16th March 2005?
Both parties were to blame. The coxswain and ramp controller had a duty to ensure the ferry was properly boarded before sailing and ought to have waited for clearance; the driver also bore some responsibility. Liability apportioned 70:30 in favour of the appellant.
The Court re-evaluated the witness statements and found the ferry officials started the ferry before the lorry fully boarded despite radio communication available to confirm readiness. However, the driver's failure to fully board the lorry after several attempts suggested some shortfall on his side too. The Court departed from the trial Judge's finding that the respondents bore no blame and apportioned liability 70:30.
Whether the lorry was mechanically sound
Failure of some axles to board onto the ferry despite several attempts, even downhill, pointed to a likely mechanical hitch in the lorry, contributing to the accident.
No report suggested the lorry was mechanically unsound, but the repeated failure of axles to board the ramp, taking judicial notice that boarding ordinarily happens downhill, raised an inference of a mechanical problem. This contributed to the apportionment of liability against the appellant.
Whether the driver was skilled enough
The driver was a qualified and licensed driver of heavy commercial lorries with 24 years' experience; the contention that he lacked skill was remote given he had previously embarked the lorry successfully.
The respondents argued the driver lacked skill. The Court noted his qualification, licence, 24 years' experience, and absence of evidence of prior infractions. Although his first ferry boarding was three weeks prior, he had previously embarked successfully, making the inexperience argument remote.
Entitlement to special damages
Only specially pleaded and strictly proved items were awardable: repair and spare parts costs of Kshs. 3,520,782.78 (despite insurance indemnity), compensation to Descent Merchants of Kshs. 525,000, towing fees of Kshs. 100,000, and obstruction fees of Kshs. 9,000.
The Court scrutinised the receipts in the record and found proved items totalling Kshs. 3,520,782.78 for repairs and spare parts. It held the appellant was entitled in full to this sum despite insurance reimbursement, and awarded the proved towing, obstruction, and compensation items. Unproved heads (loss of user, lost profits, loss of goods, hire purchase instalments) failed for want of proof.
General damages
A nominal reasonable compensation of Kshs. 1,000,000 awarded as general damages for the disruption and agony the appellant suffered through to repossession of the lorry.
No evidence was led on general damages, but the Court acknowledged the appellant's pain, inconvenience and difficulties. Relying on authorities on nominal damages and comparable awards, the Court found that since the respondents contributed to the agony, a nominal award of Kshs. 1,000,000 was appropriate.
Whether the trial Judge had jurisdiction to assess costs at Kshs. 600,000
No. Assessment of costs in normal civil proceedings is for the Deputy Registrar under Paragraph 10 of the Advocates Remuneration Order; the trial court's award was set aside.
The Court distinguished election petitions (governed by specific statutes) and exceptional cases where a court may fix costs with reasons. In normal civil proceedings, the trial court makes a general costs order and taxation is left to the Taxing Officer. The Kshs. 600,000 award was therefore ultra vires and was set aside.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the entire evidence and draw its own conclusions, but will only interfere with findings of fact if based on no evidence, misapprehension of the evidence, or wrong principles
- Special damages must be both specifically pleaded and strictly proved
- Damages for loss of user can only be special damages and must be strictly proved, not assessed as general damages
- The burden of proving contributory negligence on the part of the plaintiff is on the defendant
- In normal civil proceedings, assessment of costs is undertaken administratively by the Deputy Registrar; the trial court should only make a general order on costs
Court orders
#- 1.Decision of the learned Judge (Kizito, J.) dated and delivered on 22nd June 2023 set aside and substituted with the orders and awards of this Court
- 2.Liability apportioned at the ratio of 70:30% in favour of the appellant
- 3.General damages of Ksh. 1,000,000.00
- 4.Special damages in the total sum of Ksh. 5,154,782.78 (costs of repair and spare parts Kshs. 3,520,782.78; compensation paid to Descent Merchants Kshs. 525,000.00; towing fees Kshs. 100,000.00; obstruction fees Kshs. 9,000.00)
- 5.The sums aforesaid to be apportioned in the ratio of 30%/70% in favour of the appellant
- 6.30% of the costs to be assessed by the Taxing Officer of the Court
- 7.Award of Kshs. 600,000 as costs by the trial court set aside and substituted with an order that the parties be at liberty to pursue taxation of such costs by the Taxing Officer
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (duty to re-evaluate evidence as a first appellate court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Makomere t/a Wambeyi Makomere & Company Advocates v Boit (Environment and Land Miscellaneous Application E006 of 2025) [2026] KEELC 1502 (KLR)[2026] KEELC 1502 (KLR)10 Mar 2026
- Carlos Muema Francis v Mash East Africa Limited[2026] KECA 45 (KLR)30 Jan 2026followed
Cite this brief
#Cite this brief
Caselaw, "David Karobia Kiiru T/A Kinamba General Supplier's & Transport v Kenya Ferry Services & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/664/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.