John Fanuel Awiti Ogol v Murithi [1985] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a driver who hits a pedestrian on a marked crossing must prove they were not negligent, or automatically lose.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether being struck while on a pedestrian crossing is prima facie evidence of negligence on the part of the driver
- 2.Whether the doctrine of res ipsa loquitur applied so as to shift the burden of proof to the respondent
- 3.Whether the judge erred in upholding the submission of no case to answer
Key legal issues
#Effect of an accident on a pedestrian crossing
Being on a pedestrian crossing when struck is prima facie evidence of the driver's negligence, shifting the burden to the driver.
The trial judge had found as a fact that the appellant was on a pedestrian crossing. Applying Cole v De Trafford, the Court held that this finding disclosed an accident blameable on the respondent. Since the respondent elected to remain silent and rely on a submission of no case to answer, he never discharged the onus of showing on a balance of probabilities that the accident was not due to his fault, and was therefore liable.
Application of res ipsa loquitur and pleading
The plaint's reference to res ipsa loquitur sufficed to put the respondent on notice that the appellant relied on presumed negligence, even though the crossing was not expressly pleaded.
The Court held the appellant had clearly intended to rely on the circumstances of the accident, including his position on the crossing, to shift the burden. The respondent was aware from the outset. Because no evidence was called for the defence, the burden was never discharged, and the correct course was to hold the respondent liable rather than dismiss the case.
Deference to trial judge's findings of fact
An appellate court must be mindful of the trial judge's advantage in seeing and hearing witnesses.
The Court accepted the unchallenged finding that the appellant was on the crossing, citing Sotiros Shipping. It emphasised that no misdirection in that finding was suggested, so the respondent could not argue the crossing was not proved. This grounded the shift of burden and the reversal.
Legal principles established
#- Once it is proved that a pedestrian was hit while on a pedestrian crossing, an accident blameable on the defendant is disclosed and the burden shifts to the defendant to show he was not at fault.
- A defendant who relies on a no-case-to-answer submission cannot escape res ipsa loquitur; failure to give an explanation fixes him with negligence.
- The defendant need not prove how and why the accident happened; it suffices that he shows he was personally not negligent even if the accident remains inexplicable.
Court orders
#- 1.The appeal is allowed and the judgment of the High Court is set aside
- 2.The case is remitted to the High Court for the judge to assess damages on the basis of 100% liability on the part of the respondent
- 3.Costs both here and below are given to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal (statutory right of appeal; no specific provision stated in the judgment)
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 allow the appeal and set aside the judgment of the High Court.
the order of this court is that the case be remitted to the High Court for the judge to assess damages on the basis of the respondent being wholly liable for the accident
I also agree with the order of costs proposed by Nyarangi JA.
So the fact that the appellant was on a pedestrian crossing at the time of the accident is prima facie evidence of negligence on the part of the respondent.
Failure to explain and discharge the onus thus shifted fixed the respondent with negligence.
Issues in the judgment
#Judgment does not state the case number, the trial judge's name, or the date of the High Court decision, so the appealFrom particulars cannot be completed.
The respondent is never named in the judgment, only identified by vehicle registration mark KQD 967.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Fanuel Awiti Ogol v Murithi [1985] KECA 75 (KLR)", Case Analysis (1985). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/75/eng@1985-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.