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Case Brief · caselaw.co.ke
High CourtDismissedCivil Appeal No. 13 of 2019

Kenya Red Cross v IDS (Suing as the Legal Representative of the Estate of MDR (Deceased))

High Court of Kenya
28 October 2020
6,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal from the judgment of Senior Resident Magistrate J.J. Masiga delivered on 14 May 2019 in Garissa CMCC No. 3 of 2016, in which the respondent, as legal representative of the estate of a 13-year-old girl fatally struck by motor vehicle KAQ 138J along the Mwingi–Garissa road near Bunta Bunta Shopping Centre on 19 September 2011, obtained 100% liability against Kenya Red Cross and damages of Kshs.1,500,000 (Kshs.100,000 pain and suffering, Kshs.100,000 loss of expectation of life, Kshs.200,000 under the Law Reform Act and Kshs.1,300,000 loss of dependency under the Fatal Accidents Act). The appellant challenged the extension of time to file suit out of time, the finding of 100% liability, and the quantum. C. Kariuki J dismissed the appeal. On limitation, the court held that leave had been properly granted on 9 February 2016 on the ground of settlement negotiations, which the appellant never denied, and following Rosemary Wanjiru Kungu and Lucia Wambui Ngugi found the extension valid. On liability, the respondent's unchallenged evidence, the driver's conviction in a traffic case, and the principle that a child of tender years cannot be contributorily negligent (Butt v Khan; Gough v Thorne) supported the trial court's finding. On quantum, the court found no wrong principle or misapprehension of facts and declined to interfere. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Limitation and extension of time

Holding

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.

Reasoning

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.

p. 5
02

Liability for the fatal accident

Holding

The appellant's driver was 100% liable; the 13-year-old deceased bore no contributory negligence.

Reasoning

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.

p. 3
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Quantum of damages

Holding

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.

Reasoning

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.

p. 4
04

Effect of failure to adduce evidence

Holding

The appellant's defence, unsupported by any evidence, could not controvert the respondent's case.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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

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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, "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.