Asal v Muge & another (Civil Appeal 49 of 2000) [2001] KECA 363 (KLR)
The bottom line
#The Court of Appeal cut the Muge family's compensation by KShs 525,600 to prevent double payment, but confirmed the lorry driver was fully to 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 the Diocese of Eldoret's claim for the value of the deceased's vehicle was time-barred under the Limitation of Actions Act by reason of the 1995 amendment substituting the Diocese as the claiming party.
- 2.Whether Omukoba's conviction for causing death by dangerous driving barred the appellant from pleading contributory negligence against the late Bishop Muge.
- 3.Whether the learned judge erred in finding Omukoba wholly to blame for the accident and in rejecting the allegation that Bishop Muge was contributorily negligent.
- 4.Whether the learned judge applied a wrong principle in assessing damages by awarding lost years damages under the Law Reform Act without taking into account the loss of dependency award under the Fatal Accidents Act.
Key legal issues
#Whether the Diocese of Eldoret's claim over the vehicle was time-barred following the 1995 amendment
The claim was not time-barred. It had featured in the plaint from the first filing in 1991; the 1995 amendment changed only the party making the claim, substituting the Diocese for Mrs Muge, and caused the appellant no injustice. The limitation objection had also been argued as a preliminary objection and decided in a considered ruling against which no appeal was brought.
The claim over the vehicle featured in the plaint from the first filing in 1991; the 1995 amendment changed only the party asserting it, substituting the Diocese of Eldoret for Mrs Muge, and could not cause the appellant injustice since only the destination of the payment changed. The limitation objection had been raised before Tanui J, argued at length, and decided in a considered ruling against which no appeal was brought, so the point could not be reopened before the Court of Appeal.
Whether Omukoba's conviction for causing death by dangerous driving barred a plea of contributory negligence
It did not. Following Robson v Oluoch, a conviction for an offence involving negligence is not conclusive evidence that the convicted driver was the sole cause of the accident, and a defendant may still plead the plaintiff's or another person's contributory negligence in subsequent civil proceedings arising from the same accident.
Relying on Robson v Oluoch, the court treated the point as settled since 1971: a conviction for an offence involving negligence is not conclusive evidence that the convicted driver was the sole cause of the accident. Section 47A of the Evidence Act does not preclude a defendant in later civil proceedings arising from the same accident from pleading that the plaintiff or another person was also negligent. The court therefore agreed with counsel that the appellant could raise contributory negligence notwithstanding the conviction.
Whether Bishop Muge contributed to the accident by overtaking
No. The concurrent findings of the magistrate and Tanui J that Omukoba's lorry, speeding with flashing lights, ploughed into the Bishop's car as it followed another lorry, and that the Bishop did not attempt to overtake, stood, and the Court found no basis to disturb the finding that Omukoba was wholly to blame.
The plea of contributory negligence rested wholly on the assertion that Bishop Muge was overtaking in the face of oncoming traffic; if true, he would have been the sole cause, not merely a contributor. The trial magistrate expressly found he did not attempt to overtake, and Tanui J accepted the evidence of John Onyango Owino that the speeding lorry with flashing lights hit the Bishop's car as it followed another lorry. With the conviction unset aside and these findings intact, the Court found no basis to disturb them.
Whether the lost years award under the Law Reform Act involved double compensation
Yes. The award of KShs 525,600 for lost years would devolve on the same dependants who had already been awarded KShs 2,592,000 for loss of dependency under the Fatal Accidents Act. The award was set aside in its entirety and the total award reduced accordingly.
Although section 2(5) of the Law Reform Act makes estate damages additional to Fatal Accidents Act damages, this Court's decision in Maina Kaniaru requires damages recovered under the Law Reform Act which devolve on the dependants to be taken into account in reduction of the Fatal Accidents Act damages, to avoid double recovery. The lost years award of KShs 525,600 would go to the same dependants who had received KShs 2,592,000 for loss of dependency. The judge stated the principle but failed to apply it, entitling the Court to interfere.
Legal principles established
#- A conviction of a driver for an offence involving negligent driving does not bar the defendant in subsequent civil proceedings arising from the same accident from pleading that the plaintiff or another person was also negligent.
- Damages recovered under the Law Reform Act which devolve on the dependants of the deceased must be taken into account in reduction of the damages recoverable under the Fatal Accidents Act; there is no double recovery.
- A trial judge's failure to apply the correct principle in assessing damages, including failure to avoid duplication between Fatal Accidents Act and Law Reform Act awards, entitles the appellate court to interfere with the award.
- An amendment that merely substitutes the party making an existing claim causes no injustice and does not convert a claim into a time-barred one.
- A party who did not appeal an interlocutory ruling of the trial court cannot challenge that ruling on appeal from the final judgment.
Court orders
#- 1.The award of KShs 525,600/= made by the trial judge as damages for lost years is set aside in its entirety.
- 2.The total award of KShs 3,217,750/= given by the learned judge is reduced by KShs 525,600 to KShs 2,592,150/= (figure as printed in the judgment).
- 3.The appeal is allowed only to that extent.
- 4.The appellant is awarded one third of the costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal from the High Court to the Court of Appeal; no enabling constitutional or statutory provision is cited in the judgment.
Relief refused
#Setting aside the finding that Omukoba was wholly to blame and the rejection of contributory negligence against the late Bishop Muge
The conviction stood, the alleged overtaking was disbelieved by both the magistrate and the judge, and the accepted eyewitness evidence left no basis for finding any contribution by the Bishop to the accident.
Declaration that the Diocese of Eldoret's claim over the vehicle was statute-barred
The claim over the vehicle existed from the outset and the 1995 amendment only changed the claimant; the point had also been decided in an interlocutory ruling against which no appeal was brought.
Interference with the loss of dependency award of KShs 2,592,000 under the Fatal Accidents Act
The court found the judge had the correct principles in mind and disturbed only the lost years award under the Law Reform Act, leaving the dependency award intact.
Costs
The appellant is awarded one third of the costs of the 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.
We accordingly interfere and set aside in its entirety the award of Kshs 525,600/= given by the trial judge as damages for lost years, with the result that the total award of KShs 3,217,750/= given by the learned judge is reduced by KShs 525,600 to Kshs 2,592,150/=. To that extent, the appeal is allowed and we award to the appellant one third of the costs of the appeal. Those shall be the orders of this Court.
We are satisfied that it is quite proper for a person who has been convicted of an ofience involving negligence, in relation to a particular accident, to plead in subsequent civil proceedings arising out of the same accident, that the plaintifi, or any other person, was also guilty of negligence which caused or contributed to the accident.
This does not mean that damages can be recovered twice over but that if damages recovered under the Law Reform Act devolve on the dependants the same must be taken into account in reduction of the damages recoverable under the Fatal Accidents Act.
the assessment of damages is essentially an exercise of discretion and the grounds on which this Court will interfere with the exercise of a discretion by a trial judge are now well known
We accordingly reject the appellant's grounds of appeal which challenge the learned judge's findings that Omukoba was wholly to blame for the accident.
No appeal was brought against that ruling and it is now too late in the day for the appellant to complain about it.
Issues in the judgment
#Arithmetic inconsistency in the final orders: the stated reduced total does not equal the stated total minus the set-aside amount (KShs 3,217,750 minus KShs 525,600 is KShs 2,692,150, not the KShs 2,592,150 printed in the judgment).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asal v Muge & another (Civil Appeal 49 of 2000) [2001] KECA 363 (KLR)", Case Analysis (2001). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/363/eng@2001-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.