Alfarus Muli v Lucy M. Lavuta & another [1997] KECA 302 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that negligence findings stand unless there's no evidence at all, but struck out damages for a loss that was never claimed.
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 High Court's findings on negligence and the apportionment of liability (80%/20%) could be disturbed on appeal
- 2.Whether the award of Shs.84,960/- as lost earnings was justified where no such claim was pleaded
Key legal issues
#Standard for disturbing findings of negligence and apportionment on appeal
The appeal and cross-appeal on liability and apportionment were dismissed; the trial judge's discretion on apportionment, based on evidence, could not be disturbed.
Apportionment of liability is an exercise of judicial discretion based on the evidence. The plaintiff proved the collision; from the collision alone negligence could be inferred. Neither counsel asserted there was no evidence supporting the finding, and the 2nd respondent's counsel conceded evidence supported the apportionment. The absence of reasons for the apportionment did not vitiate it, as reasons could be found in the evidence.
Award of lost earnings without a pleaded claim
The award of Shs.84,960/- for lost earnings was set aside as erroneous because no such claim was pleaded and no loss was proved.
The plaintiff did not claim lost earnings in her plaint, and in evidence merely stated her salary and retirement age without saying she had lost anything by retiring at 52 rather than 55. Both the appellant and the 2nd respondent challenged this head of damages, and the court agreed it was an error. The other awards (general damages of Shs.400,000/- and special damages of Shs.40,785/-) were unchallenged and upheld.
Legal principles established
#- An appellate court will not disturb a finding of negligence or apportionment by the superior court unless there was absolutely no evidence, or the evidence could not possibly support such a finding.
- From the mere fact of a collision between properly driven vehicles, a judge is entitled to infer negligence on the part of one or both drivers.
- Damages cannot be awarded for heads of loss not pleaded; a claim for lost earnings must be specifically pleaded and proved.
Court orders
#- 1.Dismissal of the appeal and cross-appeal on liability and apportionment
- 2.Setting aside the award of Shs.84,960/- as lost earnings
- 3.Each party to bear its own costs of the appeal and cross-appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.C. No. 48 of 1993
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)
Relief refused
#Appeal against finding of negligence and apportionment of liability
There was evidence before the trial judge capable of supporting the finding; counsel conceded as much
Cross-appeal against the 20% negligence attributed to the 2nd respondent's driver
Counsel expressly conceded there was evidence supporting the apportionment
Costs
Each party shall bear its own costs of the appeal and the cross-appeal.
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 this Court to disturb a finding of negligence by the superior court, it would have to be shown that there was absolutely no evidence, or that the evidence which was there, could not possibly support such a finding.
The apportionment of liability is an exercise in judicial discretion based on the evidence before a judge.
Accordingly, we allow the appeal and the cross-appeal on quantum of damages to the extent of setting aside the award of Shs.84,960/-. The appeal and the cross-appeal succeed to that limited extent. We order that each party shall bear its own costs of the appeal, and the cross-appeal. Those shall be our orders.
Issues in the judgment
#The judgment refers to the lost earnings award as both Shs.84,960/- and Shs.84,900/- in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwaka v Karua & another (Civil Case E261 of 2022) [2024] KEMC 29 (KLR)[2024] KEMC 29 (KLR)3 Sept 2024
- Muthembwa & another (Suing as the personal representatives of the Estate of Patricia Mumbua Mutuku [Deceased) v Mutunga & another (Civil Case 396 of 2013) [2023] KEMC 112 (KLR)[2023] KEMC 112 (KLR)30 Mar 2023
Cite this brief
#Cite this brief
Caselaw, "Alfarus Muli v Lucy M. Lavuta & another [1997] KECA 302 (KLR)", Case Analysis (1997). Civil Appeal No. 47 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/302/eng@1997-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.