Mureithi v Wambui & 2 Others
The bottom line
#Kenya's Court of Appeal ruled that a driver on a major road isn't negligent unless danger was reasonably apparent, clearing the matatu of all blame.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was evidence establishing negligence on the part of the matatu driver
- 2.Whether the learned judge misapplied the principles in Oluoch v Robinson in apportioning 10% blame to the matatu
Key legal issues
#Negligence of the matatu driver
There was no evidence that the matatu driver was negligent; the accident was entirely due to the negligence of the lorry driver.
The only eyewitness evidence showed the lorry being driven into the path of the matatu on the highway. There was no evidence that the matatu driver was driving at a speed or in a manner that was negligent, nor that danger was reasonably apparent to him. The Oluoch principle was misapplied; the possibility of danger was a mere possibility which would never occur to a reasonable man.
Application of Oluoch v Robinson
The holding that a driver on a major road is not entitled to assume compliance with traffic signs must be read with the requirement that the possibility of danger was reasonably apparent.
The court read Oluoch together with Law, JA's dictum and Lord Dunedin's principle in Lang v London Transport Executive. Negligence requires that danger was reasonably apparent; the trial judge erred in finding the matatu driver negligent merely for not hooting or braking without evidence of apparent danger.
Adverse inference from lorry driver's failure to testify
The court drew the inference that the lorry driver, who did not give evidence despite being represented, was to blame.
The lorry driver was the only other person who could have given evidence on the matatu driver's conduct; his failure to testify, though represented by counsel, supported the inference that he was to blame for the collision.
Legal principles established
#- A driver on a major road is negligent only if the possibility of danger emerging was reasonably apparent to him; a mere possibility which would never occur to a reasonable man does not found negligence.
- The mere fact that a driver was approaching a junction is not enough to establish negligence; each case must be determined on its merits.
Court orders
#- 1.The judgment of the learned judge apportioning 10% of the blame to the appellant is set aside
- 2.The appellant shall not be liable to pay any part of the damages awarded by the learned judge
- 3.The appellant shall have her costs for the appeal against the second respondent
- 4.The cross appeal is dismissed with costs to the appellant therein
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 1079 of 1988
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal against apportionment of liability in negligence)
Relief refused
#Cross appeal
Dismissed with costs to the appellant therein
Costs
The appellant shall have her costs of the appeal against the second respondent; the cross appeal dismissed with costs to the appellant therein.
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.
If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligent; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.
The mere fact that he was approaching a junction is not enough. Each case must be determined on its merits.
the inescapable conclusion to our minds must be that, the accident was entirely due to the negligence of the lorry driver.
the appeal succeeds and the judgment of the learned judge apportioning to the appellant 10% of the blame for the accident is hereby set aside and the appellant shall not be liable to pay any part of the damages awarded by the learned judge.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mureithi v Wambui & 2 Others", Case Analysis (1994). Civil Appeal No. 105 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/116/eng@1994-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.