Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtPartially AllowedCivil Case No 1568 of 1982· [1984] KEHC 59 (KLR)

Dr Samuel Mburu v 1st & 2nd Defendants and Attorney-General (3rd defendant) & 4th Defendant

High Court of Kenya
10 February 1984
EOE O'Kubasu
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court held a lorry driver 90% to blame for a fatal crash, but an ambulance driver who could have swerved to safety bore 10% of the liability.

What this practically means

#

Executive summary

#
This first-instance High Court negligence suit arose from a fatal head-on collision of 1 June 1981 between a government ambulance (GK 876X) travelling uphill towards Karatina and a lorry descending from the opposite direction. Quantum was settled by consent before hearing: judgment for the plaintiff against all defendants jointly and severally in the sum of Shs 2,153,500 inclusive of costs and disbursements, with liability as between the defendants to proceed to trial. Only two witnesses testified: the plaintiff, Dr Mburu, a passenger in the ambulance, and Inspector Kavute, who drew the sketch plan and confirmed the ambulance was on its correct side of the road. The lorry driver had been convicted on two counts of causing death by dangerous driving under section 46 of the Traffic Act. Applying Baker v Market Nerberough (per Denning LJ) and Lakhanmashi v Attorney General, the court attributed fault on the basis that failing to take available avoiding action is itself negligence. Noting a good verge on the ambulance's side, E O'Kubasu J held the lorry driver 90% negligent and the ambulance driver only 10% negligent for failing to swerve left. Judgment was entered accordingly: the Attorney-General (3rd defendant) to pay 10% (Shs 215,350) and the 1st and 2nd defendants the balance of Shs 1,938,150. The final order contains an obvious typographical error in the judgment sum, which should read Shs 2,153,500 consistent with the consent judgment and the apportionment arithmetic.

Key legal issues

#
01

Apportionment of negligence between a lorry driver travelling downhill at high speed on the wrong side and an ambulance driver on his correct side

Holding

The lorry driver was 90% negligent; the ambulance driver only 10% negligent for failing to take avoiding action

Reasoning

The court accepted evidence that the ambulance was on its correct side of the road, stationary-slow going uphill, while the lorry approached at high speed on the wrong side. The lorry driver's conviction for causing death by dangerous driving reinforced his dominant fault. However, a good verge existed on the ambulance's side, so its driver's failure to swerve left constituted the sole negligence attributable to him, fixed at 10%.

p. 3
02

Relevance of a criminal conviction for causing death by dangerous driving to civil negligence

Holding

The conviction is a relevant factor but does not automatically mean 100% civil negligence

Reasoning

The court noted the lorry driver's conviction on two counts under section 46 of the Traffic Act and considered the criminal standard discussed in Atito v R, but held it would not necessarily follow that a convicted driver is found 100% negligent in a civil case arising from the same accident; the civil court must weigh all the evidence.

p. 2

Legal principles established

#
  • Where a driver had a good verge available and failed to take avoiding action, only that failure is attributed to him as negligence notwithstanding the other driver's dominant fault
  • Where blame cannot be distinguished between two drivers, blame should be cast equally on each

Court orders

#
  1. 1.Judgment for the plaintiff in the sum of shs 2,153,500 inclusive of costs and court disbursements, to be paid by the defendants
  2. 2.The Attorney-General (3rd defendant) to pay 10% of the amount (shs 215,350) to the plaintiff
  3. 3.The 1st and 2nd defendants to pay the balance of shs 1,938,150

Authorities

#

Legislation

  • Traffic Actsection 46 (Cap 403)

Cases cited (6)

  • Baker v Market Nerberough Industrial Co-operative Society Ltd
    (1953) W L R 1472

    Absence of avoiding action by one vehicle renders it also to blame; equal apportionment where fault indistinguishable

  • Lakhanmashi v Attorney General
    (1971) E A 118

    Followed Baker: parties equally to blame where fault cannot be distinguished

  • Atito v R
    (1975) E A 278

    Test for causing death by dangerous driving: objective danger plus fault on the part of the driver

  • Kitsao v Republic
    Msa H C Cr A 75 of 1975 (unreported)

    Proper test for dangerous driving as adopted in Atito v R

  • R v Gosney
    (1971) 3 All E A 220

    Cited within Atito v R on the dangerous driving test

  • Queens Cleoners and Dyers Ltd v East African Community and others
    (1972) E A 229
Jurisdiction invoked
Original civil jurisdiction of the High Court (fatal accident/negligence claim); no specific constitutional or statutory provision stated

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dr Samuel Mburu v 1st & 2nd Defendants and Attorney-General (3rd defendant) & 4th Defendant", Case Analysis (1984). Civil Case No 1568 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/1984/59/eng@1984-02-10

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