Turfena Achieng' Abuto & another v William Ambani Mise c/o Ahero Total Service Station & another

and caught re. She and her daughter suered several burns as a result of the explosion and re. In the context of the rural life of this country where the appellants live, paran is an article of common household use and known to all rural dwellers as a safe substance, and there is thus, no special duty on the part of the appellants to take any special precautions in handling it. The paran had reached the rst appellant in the same state in which it had left the paran pump and the paran could not, neither was it expected, to be examined by the rst appellant. The fact that the paran exploded and caught re means that it was contaminated and the onus would be on the respondents to show that the contamination was not due to their negligence. It is not therefore, surprising that the appellants in their plaint relied on the doctrine of res ipsa loquitor to establish their claim. In other words, the circumstances of the accident give rise to the prima facie inference of negligence on the part of the rst respondent who sold the paran to the rst appellant, and the second respondent who manufactured and supplied the paran to the rst respondent, and both of whom have in order to escape liability, to displace the prima facie presumption of negligence. 2. At the hearing in the High Court, the evidence given by the rst appellant as to how the accident occurred was really not disputed and the learned judge was also of the view that it could not be said that the rst appellant had not bought paran from the rst respondent on 3rd June, 1988. In the plaint it had been averred that the paran had been purchased on 15th June, 1988, and on which same day, the accident had occurred. At the trial, it became clear that the accident had occurred on 3rd June, 1988, and the trial had proceeded on that basis. The learned judge, however, without any evidence to support the proposition that there had been any novus actus interveniens on the part of the rst appellant, came strangely to the conclusion that the evidence for the appellants was too scanty to support any proper decision and further, that for the appellants to establish their case, they had to adduce scientic evidence to establish that the paran that the rst appellant had bought from the rst respondent was capable of behaving the way it did, and also that the plastic jerrican had not contained any explosive substance. We fear that the learned judge had, in view of the undisputed evidence of the rst appellant surrounding the occurrence of the accident, and the well known qualities of paran as a safe substance, misapprehended the principles of the doctrine of res ipsa loquitor. It would seem that the learned judge, in his determination to discredit the evidence of the rst respondent, went on as far as to say that: " On the other hand there was evidence on the part of the respondent that their paran had been used by members of the public and no explosion occurred. If this was correct and there is no reason why it should be doubted, then the record for chemical tests of the paran used by the plainti is even more apparent.” 3. But there was before the learned judge cogent evidence to cast doubt on this very assertion that he made, and it is a travesty of justice for him to have over looked this. In the evidence of the rst respondent himself, he had said the following: " On 6th June, 1988 the district ocer came to my station. Police also came. They came and said people in the area were complaining of burns of paran bought from various outlets as Ahero.” 4. The Western Kenya Area Manager for the second respondent who gave evidence for the respondents also conrmed like the respondent, that there had been complaints from the general public about exploding paran bought in Ahero where there is only one other service station apart from the one https://new.kenyalaw.org/akn/ke/judgment/keca/1995/171/eng@1995-12-01 2

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operated by the rst respondent, and which had led to the closure of the rst respondent’s paran pump. The relevant evidence of the Area Manager is as follows: " In June, 1988, I received a report on my oce that Ahero Police had stopped sales of Kerosene at Ahero petrol station. I drove there to do investigations. When I got to the station Mr William Ambani had stopped selling Kerosene. I sought explanation for stopping. I was informed that the Kerosene was contaminated and explosive. I took some Kerosene and to carry out physical tests. We put it on 3 bottle tops and struck a match to light it. I saw normal ame, with no explosion.” 5. Need we say any more! 6. The last paragraph of the above excerpt from the evidence of the Area Manager, contains some evidence which may be considered in the context of the defence of the respondents. But before doing this, it would be convenient to consider more fully, the principles involved in the doctrine of res ipsa loquitor and how it applies to the present appeal. 7. Paran as we have already observed, is a non dangerous common household substance which is of daily use in the rural areas of the country. As Lutta, JA observed in the case of Mwananchi Service Station and another v Miagen [1973] EA 305 at 309: " Ordinarily a purchaser or customer of Kerosene does not examine it nor does he have reasonable opportunity to analyse the same in order to discover any defects therein or to observe whether its condition, in all probability, is likely to cause damages to property or injury to person: Kerosene is not dangerous in itself There was thus no special duty on the part of the plainti or the consumer (or rather the purchaser) to take appropriate precautions in handling the mixture.” 8. In the case of Embu Road Services v Rimi [1968] EA 22 at 25, Sir Charles Newbold P in his leading judgment after considering with approval the then two leading East African authorities on the doctrine of res ipsa loquitor namely, Mzuri Muhhidin v Nazzor Bin Seif [1960] EA 201 and Menezes v Stylianides Ltd (Civil Appeal No 46 of 1962 unreported) went on to say: " As I understand the law as set out by these two judgments of this Court, where the circumstances of the accident give rise to the inference of negligence the defendant, in order to escape liability, has to show, in the words of Sir Alistair Forbes, ‘that there was a probable cause of the accident which does not create negligence’ or in the words which I have previously used ‘that the explanation for the accident was consistent only with an absence of negligence.’ The essential point in this case, therefore, is a question of fact, that is, whether the explanation given by the defendant shows that the probable cause of the accident was not due to his negligence or that it was consistent only with the absence of negligence.” 9. In considering the explanation given by the respondents, it must not be forgotten and this is based on what the rst respondent and the Area Manager themselves said, that the paran pump of the rst respondent had been shut down by the police because of exploding paran experienced by members of the public who had about that time, purchased paran in Ahero. It was after then that the experiment conducted by the Area Manager with paran obtained from the paran pump of the rst respondent, showed that the paran which had then been obtained from the pump did not explode; but the Area Manager and the rst respondent failed signicantly to say on which date they had conducted this https://new.kenyalaw.org/akn/ke/judgment/keca/1995/171/eng@1995-12-01 3

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experiment. What is clear, is that this took place several days after the appellants had been injured by the explosion and after the police had on 6th June, 1988, closed down the rst respondent’s paran pump, at least by which time, the state of the rst respondents’ paran then in its tank may well have changed. It may well also be true that the police took a sample of the paran form the rst respondents’ service station but there is no evidence to show that was among the samples examined by the Government Chemist which he found to be innocuous. The same can also be said of the sample that the husband of the rst appellant said he had given to the police which as it happened, he had obtained not from the lantern or the jerrican which was empty, but from another source, a tin lamp. The failure to call the policeman who submitted the samples to the Government Chemist for examination to give evidence renders the evidence of the Government Chemist of no probative value. In any case, the learned judge did not found his conclusion that the appellants’ evidence was too scanty and that it was up to them to adduce scientic evidence as to the ash point of the paran that the rst respondent had purchased and on the pristine condition of her jerrican, on the expert evidence of the Government Chemist. In the result, one is left only with the evidence of the rst appellant as to the cause of the explosion and re and the inference that it must have been caused by some dangerous substance with which the paran which the rst respondent had purchased from the rst respondent’s service station had been contaminated. 10. The respondents who dealt in paran which is an article of common domestic use particularly in the rural parts of Kenya like Ahero, owed a duty of care to the consumer that what was sold as paran, was not contaminated and made dangerous. As already noted, the purchaser of paran has no opportunity of testing the quality of the paran that he purchases neither is he indeed, expected to test it. He rightly presumes that what is pumped into his receptacle is the safe article paran which he purchases. 11. The seller and manufacturer of paran like the rst and second respondents on the other hand, owed the duty of care which have been described. The second respondent supplied the rst respondent with the paran that was transported in sealed tanks and pumped directly into the underground storage tank of the rst respondent. According to the rst respondent, he would check the seals on the tanker and make non scientic test of the paran to ensure its safety. He in turn, would pump the paran into the containers of purchasers. In these circumstances the appellants were entitled to assume that the respondents in their various roles, must, to adopt the words of Lord Atkin in the well known case of Donoghue v Steveson [1932] AC 562 at 580: " take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour.” In answer to the question who then in law is ones neighbour? Lord Atkin went on to say: " The answer seems to be persons who are so closely and directly aected by my act that I ought reasonably to have them in contemplation as being so aected when I am directing my mind to the acts or omissions which are called into question.” 12. Inspite of the proposition that the procedure described for the supply and sale of paran made it unlikely, that the paran would have been contaminated, the fact that it exploded as described by the rst appellant and the fact that there was no novus actus interveniens on her part, give rise to the inference that there must have been some negligence on the part of both the respondents. This was also the view taken by the East African Court of Appeal in the judgment of Mustafa JA in the case of Wananchi Service Station & another (supra) at 306. 13. But were the respondents able to escape liability from the inference of negligence that arises from the evidence of the rst respondent and the other evidence that we have directed attention to? From our https://new.kenyalaw.org/akn/ke/judgment/keca/1995/171/eng@1995-12-01 4

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analysis of this evidence, we can safely conclude that the respondents had not shown that there was a probable cause of the accident which does not connote negligence on their part. 14. All that now remains to be said is that the appeal is allowed with costs. 15. We must now consider what damages should be awarded to the appellants. The learned judge attempted to do this and in doing so, ignored important medical evidence as to the seriousness of the injuries sustained by the appellants. Some of the sites of the burns suered by the rst respondent may not be visible, but their severity and eect are factors that should not have been ignored by the learned judge. Dr Olima, the well known surgeon in Kisumu, in his evidence, said that the rst appellant was admitted to his nursing home on 3rd June, 1988, in severe pain and shock and suering from rst degree burns on the head and neck including the lips. She also sustained severe burns on her left arm and right hand. She was discharged some six weeks later on 18th July,1988. His prognosis was that the hypertrophic scar of the left arm was unstable and would require skin grafting otherwise she stood the risk of developing cancer. She also had constructured left elbow and shoulder joints which would require surgical operation to free them. The second appellant was also admitted to his nursing home on 3rd June, 1983. She was in shock and suering from burns on the lower abdomen, back, the left arm and the left and right lower limbs. She too stayed in the nursing home for about a month, before being discharged on 4th July, 1988. She was left with scars on the lower abdomen and back. These scars are unstable and will require skin grafting if she is to avoid the risk of skin cancer. The cost of skin grafting would according to Dr Olima be between 15,000 - 40,000 shillings. 16. In spite of the medical evidence being uncontradicted, the learned judge who himself, is no expert in these matters, awarded general damages for the rst and second respondent at 80,000/= and 30,000/= respectively, because to quote him, “the injuries healed well.” This completely ignored the important medical evidence that the appellants had each spent not less than a month in hospital indicating the severity of their injuries, and that their scars were unstable and skin grafting would be required if the appellants were to avoid the risk of skin cancer. The general damages which the learned trial judge assessed was in the circumstances, ridiculously and manifestly low. We will assess them as 350,000/= for the rst respondent and 200,000/= for the second respondent which are hereby awarded to the appellants against the respondents jointly and severally. 17. In order to succeed on the special damages claimed, they must be clearly proved. The only receipts produced which can be said to relate to the medical treatment received by the appellants are the one dated 4th July, 1988, for 750/= in respect of the rst appellant, the one dated 18th July, 1988, for 80/ = in respect of the second appellant and the two dated 19th August, 1993, for 2,000/= each being the cost of the medical reports on each of them prepared by Dr Olima and produced in evidence. The total of special damages comes to 2,750/= in respect of the rst appellant and to 2,080/= in respect of the second appellant which are hereby awarded against the respondents jointly and severally. 18. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 1ST DAY OF DECEMBER, 1995. R. O. KWACH ………………… JUDGE OF APPEAL A.M. AKIWUMI ……………………… https://new.kenyalaw.org/akn/ke/judgment/keca/1995/171/eng@1995-12-01 5

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JUDGE OF APPEAL P. K. TUNOI ……………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/1995/171/eng@1995-12-01 6

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