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Case Brief · caselaw.co.ke
High CourtDismissedCivil Appeal No. 5 of 2020

Yakub Hussein Ganyo v Auto Industries Limited & Jonathan Charo Kalama

High Court of Kenya
23 October 2020
3,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Appellate courts rarely overturn a trial judge's finding of partial fault unless you prove the decision was clearly wrong.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Malindi against the judgment of Hon. D. Wasike (SRM) in CMCC No. 401 of 2018, delivered on 17 December 2019. The appellant, a pillion passenger on motorcycle KMDE 362M, had sued the respondents for general and special damages for injuries sustained in a collision on 30 June 2018 along Tsavo Road at Chakama. The trial Magistrate, having heard only the appellant's evidence (the respondents called no rebuttal), found that both riders of the two motorcycles were equally to blame and apportioned liability at 50% against the appellant. The appellant challenged only liability, contending there was no probative evidence of his contributory negligence and that the trial court made findings against a third party (the rider of motorcycle KMJE 461H) who was not before it. The respondents opposed, arguing the appeal was filed out of time under Section 79G of the Civil Procedure Act and incompetent for want of an attached decree, and that the evidence supported the apportionment. Applying the classic principles in Selle v Associated Motor Boat Co. and Peters v Sunday Post, Nyakundi J held that apportionment of liability is an exercise of discretion which an appellate court should not disturb unless shown to be clearly wrong or unsupported by evidence; the appellant failed to discharge that burden. The court also held that, applying Order 50 Rule 4 (which excludes the period between 21 December and 13 January from computation of time), the appeal filed on 11 January 2020 was within the 30 days allowed by Section 79G, rejecting the respondent's objection. On the missing decree, the court relied on Section 2 of the Civil Procedure Act, under which a judgment is appealable even before a formal decree is drawn up, and declined to strike out the appeal. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Apportionment of liability for a road accident

Holding

The trial Magistrate's 50/50 apportionment was a discretionary finding supported by the evidence and was not disturbed on appeal

Reasoning

The court applied the principles in Selle v Associated Motor Boat Co. and Peters v Sunday Post that an appellate court should be slow to differ from findings of fact of a judge who saw and heard the witnesses. The evidence admitted by the trial Magistrate supported a finding that both riders were equally to blame, and the appellant did not discharge the burden of showing the apportionment was clearly wrong.

p. 3
02

Burden of proving contributory negligence

Holding

The burden of proving contributory negligence rests squarely on the defendant

Reasoning

Relying on Kamaru v Mwanembe and Charlesworth & Percy on negligence, the court held that in an action for negligence the plaintiff must establish each element of the tort on a balance of probabilities, and the defendant bears the burden of proving contributory negligence before liability can be apportioned.

p. 2
03

Timeliness of the appeal under Section 79G

Holding

The appeal was filed within time because the computation of the 30-day period excluded the period between 21st December and 13th January under Order 50 Rule 4

Reasoning

The judgment was delivered on 17.12.2019. Applying Order 50 Rule 4 of the Civil Procedure Rules, which omits the period between 21st December and 13th January from computation of time, the filing on 11.1.2020 fell within the 30 days allowed by Section 79G. The respondent's objection was rejected.

p. 3
04

Failure to attach the decree to the record of appeal

Holding

The court declined to strike out the appeal for want of an attached decree, holding that a judgment is appealable even before a formal decree is drawn up

Reasoning

Section 2 of the Civil Procedure Act defines a decree to include a judgment, and provides that a judgment is appealable notwithstanding that a formal decree may not have been drawn up. The court exercised its inherent discretion under Sections 1A and 3A, considering whether the parties were prejudiced, and declined to strike out the appeal.

p. 4

Legal principles established

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  • The burden of proving contributory negligence on the part of the plaintiff rests squarely on the defendant
  • An appellate court should not lightly disturb a trial court's apportionment of liability, which is an exercise of discretion
  • A judgment is appealable notwithstanding that a formal decree in pursuance of it has not been drawn up

Court orders

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  1. 1.The appellant's appeal is dismissed with costs to the respondent
On appeal from
Chief Magistrates Court at Malindi
Civil Suit No. 401 of 2018
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act (Section 79G cited on filing of appeals from subordinate courts)

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, "Yakub Hussein Ganyo v Auto Industries Limited & Jonathan Charo Kalama", Case Analysis (2020). Civil Appeal No. 5 of 2020. Source: 

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