Onchangu (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Nyasimi & another (Civil Appeal 91 of 2018) [2019] KECA 434 (KLR)

The Court held that a passenger cannot ordinarily know how the accident occurred; once the accident and passenger status are proved, an inference of negligence arises unless the defendant explains the accident consistently with due care. Here the police abstract proved the accident and the deceased's passenger status, and the respondents led no evidence to displace negligence, so the judge erred in holding the doctrine inapplicable.

The judge had held that a claimant must prove how the accident occurred, requiring eyewitness testimony or a police report with sketch maps. The Court rejected this, holding that in a negligence claim the elements are causation and blameworthiness; where res ipsa loquitor applies, negligence is inevitable in the absence of any explanation showing the respondent was not negligent. The respondents pleaded the deceased's negligence but led no evidence to prove it.

The judge distinguished Hussein Omar Farah and Baker v Market Harborough on the basis that those cases concerned apportionment between defendants. The Court held this distinction erroneous: apportionment may arise as between the two colliding vehicles, but not as against a passenger unless the passenger's own negligence is proved. Neither driver escaped liability in those authorities.

The Court invoked section 72(1) of the Civil Procedure Act and Kenya Breweries Ltd v Godfrey Odoyo, confirming that a second appellate court resists the temptation of delving into matters of fact, confining itself to matters of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse. The errors identified here were errors of law in the application of res ipsa loquitor.