Eldoret Express Co. Ltd & Enock Kiptoo v Silvance Ojwang Odero [2016] KECA 731 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a bus company must compensate injured passengers unless it brings actual evidence, not just denials, to counter their claims.
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 first appellate court erred in framing its own issues and omitting the main grounds of appeal
- 2.Whether the learned judge failed to consider the appellants' submissions and evidence on record
- 3.Whether the respondent and his family members were lawful passengers in the first appellant's bus
- 4.Whether the respondent and his family were injured and treated as alleged
- 5.Whether the accident was inevitable and whether the second appellant was liable
- 6.Whether the award of general and special damages was proper
Key legal issues
#Duty of first appellate court to re-evaluate evidence
The judge erred in summarily accepting that the respondent was an authorized passenger without re-evaluating the evidence against the trial court's firm contrary finding, but on the Court's own re-evaluation the finding that the family were lawful passengers was correct
The trial court had firmly found the claimants were not passengers. That finding obliged the first appellate court to re-evaluate the evidence and make its own findings, citing Selle v Associated Motor Boat Co. The judge did not do so. However, the Court itself re-evaluated the record: no driver, conductor, passenger manifest or other evidence rebutted the claim, so the passengers finding stood.
Evidentiary value of hospital outpatient registers
Outpatient registers are not conclusive proof of who was treated; absence of a name does not disprove treatment
DW3 and DW4 conceded that a patient could be treated without appearing in the outpatient register and without an outpatient number. DW6 was not the keeper of the Kakuma register and was not working there at the material time. The Court therefore found the register evidence insufficient to disprove injury and treatment at Lodwar, Kitale and Kakuma hospitals.
Liability for the accident
The accident was not inevitable; the second appellant's high speed, unfamiliarity with the route and conviction for contravening route regulations established negligence
The driver was travelling fast on a rough road with loose soil and was approaching a corner where cattle were being driven across; he ought to have slowed down. His conviction for contravening route regulations evidenced breach, and breach of the Highway Code may be used to establish liability. The appeal on liability was dismissed.
Quantum of damages
The award of Kshs.80,000/= general damages and special damages was within the judge's discretion; a like award was extended to the other claimants
Applying the principles in Lukenya Ranching and Kemfro Africa, the Court found no misdirection in the award of Kshs.80,000/= for soft tissue injuries. Parity with the respondent justified awarding each consolidated claimant the same general damages, plus special damages of Kshs.5,200/= for the medical report and police abstract, the latter being judicially noticed as chargeable.
Legal principles established
#- A first appellate court must carefully re-evaluate the evidence and make its own independent findings where the trial court made firm findings of fact
- Where a defendant does not adduce evidence to disprove the plaintiff's evidence on a fact, the plaintiff's evidence is to be believed unless outlandish; denials in a defence are not evidence
- Absence of a patient's name in a hospital outpatient register does not prove the patient was not treated
- A trial court that dismisses a claim for damages must nonetheless assess the damages it would have awarded had the claim succeeded
- An appellate court interferes with an award of damages only if the court below took into account an irrelevant factor, left out a relevant factor, or the award is wholly erroneous
- Breach of a Highway Code provision may be relied upon to establish or negate liability
Court orders
#- 1.Appeal dismissed with costs to the respondents, including costs in the High Court and in the Principal Magistrate's Court
- 2.Each of the claimants in the consolidated appeals awarded general damages of Kshs.80,000/= and special damages of Kshs.5,200/= for medical report and police abstract
- 3.The claim of Kshs.500/= for search of ownership details refused for the other claimants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kitale
- HCCA No. 59 of 2011
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate provisions of the Civil Procedure Act (not expressly stated in the judgment)
- Consolidated with
- Civil Appeal No. 53 of 2011, Civil Appeal No. 54 of 2011, Civil Appeal No. 55 of 2011, Civil Appeal No. 56 of 2011, Civil Appeal No. 57 of 2011, Civil Appeal No. 58 of 2011
Relief refused
#Kshs.500/= for search certificate for each of the other claimants
Only one search receipt was produced; only the respondent was awarded that sum
Reduction of general damages from Kshs.80,000/= to Kshs.50,000/= (as urged in the appeal against quantum)
Appellate court found no error in the judge's assessment; discretion judicially exercised
Costs
Appeal dismissed with costs to the respondents, including costs in the High Court and in the Principal Magistrate's Court.
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.
Where a defendant does not adduce evidence to disapprove the plaintiff's evidence about an alleged fact, the plaintiff's evidence is to be believed, unless the plaintiff's contention is too outlandish to be believed. Allegations or denials in a statement of defence are not evidence.
even if a trial court dismisses a claim for damages, it is duty bound to assess the damages it would have awarded in the event that it found for the claimant
An appellate court will only interfere with that discretion if the trial court (or the first appellate court) took into account an irrelevant factor or left out of account a relevant factor or where the award is so inordinately high or inordinately low, that it must be a wholly erroneous estimate of the damages.
For the reasons aforesaid, we dismiss this appeal with costs to the respondents, including costs in the High Court and in the Principal Magistrate's Court.
Issues in the judgment
#The judgment records counsel's submission on reduction of damages as being by 'Mr. Rotich for the respondent', although Mr. Rotich was counsel for the appellants - an apparent misnomer
The judgment contains internal typographical errors: the P3 form examination date is given as 17th October 2017 although the accident occurred in 2007, and the bus is referred to as KAT 974 U in one passage and KAT 974 V in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eldoret Express Co. Ltd & Enock Kiptoo v Silvance Ojwang Odero [2016] KECA 731 (KLR)", Case Analysis (2016). Civil Appeal No. 62 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/731/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.