Abbay Abubakar Haji & another v Marair Freight Agencies Ltd [1984] KECA 57 (KLR)
The bottom line
#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 appellants proved on a balance of probability that a collision occurred between the Datsun and the Daihatsu
- 2.Whether negligence could be inferred from the circumstances of the accident where there is a lack of evidence as opposed to a conflict of evidence
- 3.Whether the trial judge erred in disregarding the evidence of IP Ombalo and refusing to allow CIP Waigwa to give an opinion on the point of impact
- 4.Whether, if both drivers could not be distinguished in blame, liability should be apportioned equally
Key legal issues
#Inference of negligence from circumstantial evidence in traffic accidents
Negligence may be inferred where there is a conflict of evidence or an irresistible inference from the circumstances, but where there is simply a lack of evidence as to how the accident happened, no inference of negligence can be drawn and no equal apportionment can be made.
Applying Lakhamshi, the court distinguished between a conflict of evidence, where a judge must decide and may find one or both drivers negligent, and a mere lack of evidence, where no party can be held liable. The trial evidence here showed only the position and damage of the vehicles and three dead cows, leaving many speculative hypotheses, so neither driver's negligence could be established.
Equal apportionment of blame between drivers
Equal apportionment under Baker v Market Harborough is available only where it is proved that both parties were to blame and blame cannot be distributed; it is not a default rule where negligence is unproven.
Hancox JA explained that in the line of authorities relied on, it was evident that a collision had occurred near the centre of the road, enabling a finding that both drivers were negligent. Here even the fact of collision between the two vehicles was not proved, so the precondition for equal apportionment was absent.
Admissibility of opinion evidence from non-expert investigators
A witness with training, experience and observation of the scene may indicate what those suggest as to how vehicles came to be where they were, and the court will then give the testimony appropriate weight; the trial judge's exclusion of such opinion was over-rigid but not fatal to the outcome.
The court criticised the trial judge for refusing to allow the police officers and the investigator to say what their experience suggested about the accident. Although Hancox JA called the treatment of CIP Waigwa's evidence 'cavalier', all judges agreed the conclusion dismissing the claim was still correct on the evidence.
Legal principles established
#- Where there is a lack of evidence as opposed to a conflict of evidence, a party cannot be found negligent and blame cannot be apportioned equally; equal apportionment applies only where both drivers are proved to have been negligent.
- Where the cause of an accident is so speculative that no reasonable and probable inference can be drawn, negligence cannot be found against either party.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment. Held that the cause of the accident was so speculative that no reasonable inference of negligence could be drawn against either driver; the trial judge rightly applied Lakhamshi and the appeal had to be dismissed.
In these circumstances the cause of the accident is so speculative that no reasonable and probable inference can be drawn, in my view, that either driver was at faultp. 4
Wrote the judgment
Concurring judgment. Analysed the authorities including Baker v Market Harborough and Lakhamshi, observing that Spry VP's remarks on lack of evidence were obiter but apposite here; agreed with Kneller JA that no inference of negligence was possible.
It is apparent, then, that Spry VP’s remarks were obiter, but that passage is in my judgment opposite to the present case.p. 5
Wrote the judgment
Concurring judgment. Noted that the evidence did not constitute a conflict but a lack of evidence, so equal apportionment could not apply; agreed the trial judge was right on the facts and in law.
The position must however be different where there is no evidence to establish that any party was negligent.p. 6
- On appeal from
- High Court of Kenya at Mombasa
- Civil Case No. 149 of 1982
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory right of appeal)
Relief refused
#Judgment on liability for the appellants against the respondent
No evidence of collision or negligence from which negligence could be inferred
Alternative apportionment of blameworthiness equally between the drivers
Equal apportionment applies only where it is proved both parties were to blame; here there was a lack of evidence, not a conflict of evidence
Costs
Appeal dismissed with costs to the respondent
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.
For these reasons, therefore, I would dismiss the appeal with costs, and as Hancox JA and Nyarangi Ag JA agree it is so ordered.
I personally find it difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot be properly inferred from the circumstances of the accident.
In these circumstances the cause of the accident is so speculative that no reasonable and probable inference can be drawn, in my view, that either driver was at fault
Where it is proved by evidence that both parties to a motor accident are to blame and there is no means of making a reasonable distribution, the blame can be apportioned equally on each.
The evidence supports a finding that the Datsun struck one of the three beasts. Nothing else is clear about this tragedy.
Issues in the judgment
#The judgment contains conflicting dates for the High Court judgment: June 13, 1983 in the opening narrative but June 13, 1982 in Nyarangi Ag JA's judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abbay Abubakar Haji & another v Marair Freight Agencies Ltd [1984] KECA 57 (KLR)", Case Analysis (1984). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/57/eng@1984-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.