Kago v Njenga [1979] KECA 21 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a bus company escaped liability after a crash by proving a burst tyre caused the accident without any negligence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial Judge erred in not holding that the second respondent was negligent in overtaking a Volkswagen vehicle in the face of an oncoming vehicle
- 2.Whether the learned Judge erred in finding that the bus tyre burst before the collision
- 3.Whether the doctrine of res ipsa loquitur was displaced by the respondents' evidence
- 4.Whether the trial Judge's findings of fact and inferences on negligence should be disturbed on a first appeal
Key legal issues
#Alleged negligence in dangerous overtaking
The ground failed; the overtaking allegation was not pleaded, was never put to the driver in cross-examination, and the evidence of David Kimani was rejected as an afterthought.
The Court evaluated the facts afresh as a first appeal but found two independent reasons to reject the overtaking evidence: it was not pleaded as a particular of negligence, and it was never put to the driver in cross-examination. The Court inferred that the passenger's account of dangerous overtaking was an afterthought and rejected it, dismissing this ground of appeal.
Whether the tyre burst before the collision
The trial Judge's finding that the tyre burst before the collision, and that the accident was inevitable, was neither wrong nor unreasonable.
The only direct evidence of the burst tyre was the driver's, which the trial Judge believed. The Government Vehicle Examiner confirmed the tyre had burst but could not say whether before or after the impact. The Court found the trial Judge's conclusion of fact sound and distinguished Embu Public Road Services v Riimi, where post-burst negligence by the driver was established; here no such negligence was proved.
Res ipsa loquitur
The presumption of negligence arising from the accident was displaced because the respondents showed the accident happened without negligence and that they made a reasonably careful daily visual inspection of the bus and its tyres.
Res ipsa loquitur raised a prima facie presumption requiring the defence to begin. The respondents discharged that burden by showing a probable cause (a sudden burst tyre) that did not connote negligence, and by daily visual inspections of the bus and tyres. The prima facie presumption was accordingly displaced and the appeal on this ground also failed.
Legal principles established
#- On a first appeal, the appeal is by way of retrial and the appellate court is in as good a position as the trial judge to make findings of fact, but must make due allowance for not having seen or heard the witnesses.
- To rebut the presumption of negligence arising from res ipsa loquitur, a defendant must show either no negligence on its part, or a probable cause not connoting negligence, or that the accident was due to circumstances beyond its control.
- A driver faced with a sudden emergency is not negligent if he takes the corrective action to be expected of a reasonably competent driver, even if the vehicle cannot be controlled.
Court orders
#- 1.The appeal is dismissed with costs
- 2.Certification for two advocates is refused
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal (no specific constitutional or statutory provision stated in the judgment)
Relief refused
#Certification for two advocates
Only one advocate's certificate was granted
Damages for the appellant's injuries
No negligence was proved against the bus driver; the presumption from res ipsa loquitur was displaced
Costs
The appeal is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would accordingly dismiss this appeal with costs. I would not certify for two advocates.
This being a first appeal, it is by way of re-trial and this Court is in as good a position as the learned judge to make findings of fact and to draw inferences from those facts
it was for the defendants to avoid liability by showing either that there was no negligence on their part which contributed to the accident, or that there was a probable cause of the accident which did not connote negligence on their part, or that the accident was due to circumstances not within their control
Faced with a sudden emergency, he did all that could be expected of a reasonably competent driver, but could not prevent the bus from moving over the crown of the road.
The result of this case might have been very different if the appellant had joined as a defendant the legal representative of the deceased driver of the car in which the appellant was a passenger.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kago v Njenga [1979] KECA 21 (KLR)", Case Analysis (1979). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/21/eng@1979-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.