Martlin A. Waindi v Pharmaceutical Manufacturing Co. Ltd. & another [1994] KECA 77 (KLR)
The bottom line
#A Kenyan court dismissed an accident victim's compensation claim because she couldn't prove the driver was at fault.
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 judge erred in not finding negligence on the part of the second respondent or that he had substantially contributed to the accident
- 2.Whether the judge should have applied the doctrine of res ipsa loquitur
Key legal issues
#Whether negligence could be inferred against the second respondent driver
No. The appellant gave no evidence of how the accident occurred and led no evidence proving any of the pleaded particulars of negligence; causation could not reasonably be inferred.
The appellant's evidence amounted to a total lack of recollection of the accident, possibly due to post-trauma amnesia. No sketch plan of the point of impact was produced by police. The trial judge could not be criticised for rejecting her case, since the evidence did not permit a reasonable finding that the most likely cause of the accident was the driver's negligence. The burden of proof rested on the plaintiff and was not discharged.
Whether the maxim res ipsa loquitur applied
No. The occurrence was fully explained - the appellant dashed in front of the combi from behind a lorry - and the driver showed he personally was not negligent.
The maxim requires an unexplained occurrence that would not normally happen without negligence by someone other than the plaintiff, pointing to the defendant's negligence. Here there was no mystery about how the accident occurred: the pedestrian stepped into the driver's lane from in front of a lorry, leaving him unable to avoid her. Moreover, the driver rebutted the maxim by demonstrating his own lack of negligence, so the doctrine could not assist the appellant.
Legal principles established
#- In an action for negligence the burden of proof lies on the party alleging it, who must prove facts on which negligence may reasonably be inferred and was in fact inferred
- Allegations of negligence in pleadings must be proved; failure to prove any means the action must fail even where inference of negligence is sought
- Res ipsa loquitur applies only where there is an unexplained occurrence that would not ordinarily happen without negligence by someone other than the plaintiff, and the circumstances point to the defendant's negligence; it is displaced where the defendant shows he was not negligent
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- First appellate jurisdiction under the appellate framework then governing civil appeals from the High Court (not expressly stated in the judgment)
Relief refused
#Damages for injuries sustained in the road accident
The appellant failed to discharge the burden of proving negligence on the part of the second respondent on the balance of probabilities
Application of the doctrine of res ipsa loquitur
The circumstances of the accident were fully explained and did not meet the conditions for the maxim; the second respondent showed he was not negligent
Costs
Appeal 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.
In an action for negligence, as in every other action, the burden of proof falls upon the party alleging it.
The appellant did not discharge the onus which lay upon her to show, on the balance of probabilities, that the accident was occasioned due to any fault on the part of the second respondent.
(1) on proof of the happening of an unexplained occurrence; (2) when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and (3) the circumstances point to the negligence in question being that of the defendant, rather than that of any other person.
We would accordingly dismiss this appeal with costs to the respondents. It is so ordered.
Issues in the judgment
#The judgment does not state the case number, neutral citation or the names of the parties; parties are referred to only as the appellant, first respondent and second respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martlin A. Waindi v Pharmaceutical Manufacturing Co. Ltd. & another [1994] KECA 77 (KLR)", Case Analysis (1994). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/77/eng@1994-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.