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Court of AppealPartially AllowedCivil Appeal No. 179 of 2003

Rahab Micere Murage (Suing as a Representative of the Estate of Esther Wakiini Murage) v Attorney General & 2 others [2012] KECA 9 (KLR)

Court of Appeal
20 April 2012
2,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that defendants who blame each other in an accident but refuse to testify can all be held liable for negligence.

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 Nairobi (Bosire, Karanja and Maraga, JJ.A) against the dismissal by Ang'awa J. on 3rd July 2001 of a fatal accidents claim arising from a three-vehicle collision on the Sagana-Kutus road in 1990, in which Esther Wakiini Murage, a passenger in a government vehicle, died. The three defendants - the Attorney General and two private vehicle owners - blamed one another but none called evidence on how the accident occurred; only the appellant, who was not an eyewitness, testified. The Court of Appeal allowed the appeal in its entirety. First, it held that the Attorney General had admitted in its statement of defence that the deceased was a passenger in vehicle GK M400; under Order 2 rule 11(1) of the Civil Procedure Rules an untraversed averment is deemed admitted, so the trial judge erred in finding passenger status unproved. Second, applying section 112 of the Evidence Act, the Court held that because the cause of the accident was a fact especially within the knowledge of the three respondents, they were duty bound to give evidence; their deliberate failure to testify attracted a rebuttable presumption that all three were negligent in equal shares - a presumption grounded in the statutory evidential burden rather than res ipsa loquitur. On quantum, the Court declined to interfere with the trial judge's 20-year multiplier for the 25-year-old deceased, holding the appellant's cited authority was not in point. The Court set aside the dismissal and entered judgment against the three respondents jointly and severally for Kshs.476,000/= under the Fatal Accidents Act, with costs to the appellant. The judgment now binds subordinate courts on pleadings admissions and on the allocation of the evidential burden where accident causation lies within defendants' exclusive knowledge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff had the locus standi to institute the suit
  2. 2.Whether the deceased was a passenger in motor vehicle GK M400 at the time of the accident
  3. 3.Whether the accident was caused by the negligence of the first, second or third respondent's driver, agent or servant
  4. 4.Whether liability, if any, should be apportioned between the respondents
  5. 5.Whether the multiplier of 20 years adopted by the trial court was appropriate

Key legal issues

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01

Effect of an untraversed averment in pleadings

Holding

The 1st respondent admitted in its statement of defence that the deceased was a passenger in GK M400; the trial judge erred in finding otherwise.

Reasoning

Under the rules of pleadings, an allegation made in a party's pleading is deemed admitted unless traversed by the opposing party. The Attorney General admitted the deceased was a passenger in the government vehicle. Consequently, the appellant bore no obligation to call evidence on that fact, and the trial judge had no basis for finding that passenger status was unproved. This was a first-instance factual finding contrary to an admitted fact and was reversed.

p. 3
02

Burden of proof where the cause of the accident is within defendants' exclusive knowledge

Holding

All three respondents who blamed each other but withheld evidence bore the statutory burden under section 112 of the Evidence Act; their failure to testify gave rise to a rebuttable presumption that all were negligent, in equal shares.

Reasoning

The appellant was a stranger to the accident; how it happened was known only to the drivers of the three vehicles. Two surviving drivers deliberately declined to testify, and police investigations remained pending. Section 112 of the Evidence Act placed the burden of proving or disproving that fact on the parties with knowledge of it. Their default generated a rebuttable presumption of negligence against all three, apportioned in equal shares. The presumption is evidential, not res ipsa loquitur.

p. 4
03

Quantum - multiplier

Holding

The multiplier of 20 years for a 25-year-old clerk earning Kshs.3,600 basic salary was not disturbed; the authority cited by the appellant was not in point.

Reasoning

The trial judge was entitled to weigh imponderables such as the vagueness of the deceased's earnings before settling on a multiplier of 20 years. With only basic salary disclosed and no further details, there was no proper basis to contend the multiplier was low. The Nakuru High Court authority cited by counsel did not assist the appellant.

p. 4

Legal principles established

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  • An allegation made in a party's pleading is deemed admitted by the opposing party unless traversed, and a trial judge cannot make a finding contrary to such an admission.
  • Where the cause of an accident is a fact especially within the knowledge of the defendants, the evidential burden under section 112 of the Evidence Act shifts to them to explain it; failure to testify invites a presumption of negligence.
  • The presumption arising in these circumstances rests on the evidential burden under section 112 of the Evidence Act, not on res ipsa loquitur.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order dismissing the appellant's suit set aside
  3. 3.Judgment entered in favour of the appellant against the three respondents jointly and severally in the sum of Kshs.476,000/= being damages under the Fatal Accidents Act
  4. 4.Costs of the suit and the appeal to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2775 of 1991
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal from judgment and decree of Ang'awa J.)

Relief refused

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Increase of the 20-year multiplier for a 25-year-old deceased

The multiplier of 20 years was within the judge's discretion given the limited evidence of the deceased's earnings

p. 4

Costs

Appeal allowed with costs; the order dismissing the appellant's suit set aside with costs and judgment entered against the three respondents jointly and severally in the sum of Kshs.476,000/= with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

By the rules of pleadings any allegation made by a party in his pleading shall be deemed to be admitted by the opposing party unless it is traversed by that party in his pleading.
p. 3Effect of admissions in pleadings
All of them having failed to adduce evidence in that regard, the rebuttable presumption of fact is that all of them were in one way or another negligent, and through such negligence caused the accident in which the deceased died.
p. 4Evidential burden under section 112 of the Evidence Act
It is not a presumption arising out of the doctrine of res ipsa loquitur, but from the evidential burden as imposed under s.112, of the Evidence Act.
p. 4Distinction from res ipsa loquitur
We allow the appeal, set aside the order dismissing the appellant's suit with costs, and substitute therefor an order entering judgment in favour of the appellant against the three respondents jointly and severally, in the sum of Kshs.476,000/= being damages under the Fatal Accidents Act, with costs.
p. 4Final orders / disposition

Issues in the judgment

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minor

The judgment inconsistently records the third vehicle's registration number, giving 'KUE 189' when narrating the facts but quoting the 1st respondent's defence as 'KUR 189'.

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, "Rahab Micere Murage (Suing as a Representative of the Estate of Esther Wakiini Murage) v Attorney General & 2 others [2012] KECA 9 (KLR)", Case Analysis (2012). Civil Appeal No. 179 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/9/eng@2012-04-20

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