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Court of AppealPartially AllowedCivil Appeal No. 328 of 2005· [2011] KECA 78 (KLR)

W.K (Minor Suing Through Next Friend and Mother L. K v Ghalib Khan & another [2011] KECA 78 (KLR)

Court of Appeal
2 December 2011
EOE. O. O'KubasuEGE. M. GithinjiJOJ. W. Onyango Otieno
2,205 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled an 11-year-old injured by a car was at most half to blame and awarded her Sh600,000 in damages.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri against the dismissal by the High Court at Meru of a suit by an 11-year-old housemaid who was knocked down by the first respondent's vehicle while crossing Ring Road, Nairobi in January 1993. The trial Judge found that the appellant had proved no negligence against the driver, dismissed her claim with costs, and in the alternative held that had her claim succeeded she would have borne 90% contributory negligence, with hypothetical general damages of Kshs.60,000. The Court of Appeal, comprising O'Kubasu, Githinji and Onyango Otieno, JJ.A in a single joint judgment, held that the trial Judge misdirected himself in finding the appellant solely to blame. The driver's evidence contradicted his own pleadings, and there was no independent evidence such as traffic police investigations on which to found a finding of sole negligence. Guided by Haji v Marair Freight Agencies Ltd, and the principles on children's contributory negligence drawn from Butt v Khan and Gough v Thorne, the court found that either no contributory negligence should be attributed to the child or, in the absence of clear evidence of each party's contribution, blame should be apportioned equally. The court also held the trial Judge misdirected himself on the seriousness of the pelvic fracture with attendant osteoarthritis, and that Kshs.60,000 would be manifestly low, awarding Kshs.600,000 general damages subject to 50% reduction, plus Kshs.800 net special damages, with full costs of the appeal and the suit to the appellant.

Key legal issues

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01

Contributory negligence of a child of 11 years in a road traffic accident

Holding

On the facts, either no contributory negligence should be attributed to the 11-year-old uneducated village girl, or her blameworthiness would be to a lesser degree than that of the driver; in the absence of clear evidence of each party's contribution, equal apportionment was the just outcome

Reasoning

Relying on Butt v Khan and Gough v Thorne, the court noted contributory negligence by a young person can only arise upon proof that at the time of the act he had capacity to know he ought not do it. The driver's evidence was inconsistent with his pleadings and there was no independent evidence such as traffic police investigations on which sole negligence of the child could be founded.

p. 3
02

Interference with findings of fact by an appellate court on a first appeal

Holding

While the trial Judge had the advantage of seeing and assessing witnesses, the finding that the appellant was solely to blame was a misdirection arising from indecision in the face of conflicting evidence, and the Court of Appeal was entitled to interfere

Reasoning

The court acknowledged the limited circumstances in which an appellate court may disturb findings of fact. However, the defence pleaded one version of how the accident occurred while the driver's cross-examination contradicted it, there was no independent evidence such as traffic police investigations, and the trial Judge's simultaneous finding of non-proof and hypothetical 90% apportionment showed indecision, warranting interference.

p. 3
03

Quantum of damages for pelvic fracture in a young girl

Holding

A proposed award of Kshs.60,000 was manifestly low as to indicate an error of principle; Kshs.600,000 was a reasonable award for the fracture of the pelvis with attendant pain in the hip joint and osteoarthritis

Reasoning

Medical reports showed slow healing of an extensive pelvic injury, with residual hip-joint pain and osteoarthritis requiring prolonged anti-inflammatory treatment. The court held the pelvis fracture, particularly of a young girl, is a serious injury and that the trial Judge misdirected himself in finding the injuries were not serious.

p. 4

Legal principles established

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  • A finding of contributory negligence against a child should only be made if blame can be attached to the child, having regard to whether the child was of an age to be expected to take precautions for his or her own safety
  • Where it is proved that both parties are to blame and there are no means of making a reasonable distribution of blame between them, blame is apportioned equally on each
  • The driver of a vehicle is in charge of a lethal machine and bears an obligation to keep a greater look out for other road users

Court orders

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  1. 1.The appeal is partly allowed
  2. 2.The judgment of the High Court is set aside
  3. 3.A finding substituted that the appellant and the respondents were equally to blame, liability apportioned 50%:50%
  4. 4.General damages of Kshs.600,000 less 50% contributory negligence, i.e. Kshs.300,000 net, awarded
  5. 5.Special damages of Kshs.800 net awarded (out of Kshs.1,600 claimed)
  6. 6.The appellant is awarded the full costs of the appeal and of the suit in the court below
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 475 of 1993
Jurisdiction invoked
First appeal against the judgment and decree of the High Court under the Court of Appeal's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "W.K (Minor Suing Through Next Friend and Mother L. K v Ghalib Khan & another [2011] KECA 78 (KLR)", Case Analysis (2011). Civil Appeal No. 328 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/78/eng@2011-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.