Kenya Red Cross v IDS (Suing as the Legal Representative of the Estate of MDR (Deceased))
The bottom line
#In accident claims, if you don't present evidence to counter the other side's claims, the court will likely rule in their favor.
What this practically means
#Executive summary
#Key legal issues
#Limitation and extension of time
The ex parte leave granted on 9 February 2016 on the ground of settlement negotiations was validly granted; the appellant did not seriously challenge the negotiations ground at trial.
Under section 28(2) of the Limitation of Actions Act, the court grants leave if the evidence would establish the cause of action and fulfil section 27(2). The respondent deposed that negotiations for settlement caused the delay; the appellant never denied negotiations occurred. Following Rosemary Wanjiru Kungu and Lucia Wambui Ngugi, the defendant had to challenge the grounds at the hearing and failed to do so.
Liability for the fatal accident
The appellant's driver was 100% liable; the 13-year-old deceased bore no contributory negligence.
The respondent's testimony that the vehicle was speeding and struck the child off the road was unchallenged, as the appellant called no evidence. The driver had clear vision of the child and a stalled lorry on the road but took no precaution. Following Butt v Khan and Gough v Thorne, a child of tender years cannot be blamed for contributory negligence.
Quantum of damages
The awards of Kshs.100,000 for pain and suffering, Kshs.100,000 for loss of expectation of life and Kshs.1,300,000 for loss of dependency were not excessive and were left undisturbed.
The court compared the awards with comparable authorities (Ali Sheikh Ahmed; Chabhadiya Enterprises; Abdi Kadir Mohammed) and found no wrong principle or misapprehension of facts. The global award for dependency for a 13-year-old schoolgirl was within the range of comparable decisions.
Effect of failure to adduce evidence
The appellant's defence, unsupported by any evidence, could not controvert the respondent's case.
Applying sections 107, 109 and 112 of the Evidence Act and authorities including Linus Nganga Kiongo, Trust Bank v Paramount Universal Bank and Karuru Munyororo, pleadings unsupported by evidence remain unsubstantiated averments; the respondent's unchallenged evidence was credible and actionable.
Legal principles established
#- Where a defendant fails to adduce evidence, its pleadings remain mere averments of no probative value and the plaintiff's uncontroverted evidence should be believed
- A child of tender years cannot be found contributorily negligent unless it is proved the child knew or ought to have known it should not do the act or omission
- Where a defendant or its representative leads a claimant to believe a claim is capable of settlement and the claimant refrains from filing suit until limitation has run, that may constitute a good ground for extending time
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Senior Resident Magistrate's Court, Garissa
- Garissa CMCC No. 3 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (appeal from Garissa CMCC No. 3 of 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Red Cross v IDS (Suing as the Legal Representative of the Estate of MDR (Deceased))", Case Analysis (2020). Civil Appeal No. 13 of 2019. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.