Mutubwa v Thermopak Limited & another
The bottom line
#Kenya's Court of Appeal ruled that when two drivers blame each other with no independent evidence, liability is split equally, and NHIF-paid medical bills cannot be claimed.
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 learned judge erred in apportioning liability at 70:30 between the appellant and respondents
- 2.Whether the learned judge erred by assessing the general damages for pain, suffering and loss of amenities downwards
- 3.Whether the learned judge erred by holding that the appellant was not entitled to special damages of Ksh.99,796
Key legal issues
#Apportionment of liability where evidence of how the accident occurred is conflicting and uncorroborated
The High Court erred in apportioning liability at 70:30 based on the size of the vehicle; absent independent evidence, liability should be 50:50
The parties' accounts were diametrically opposite, no independent witness testified, and the police abstract did not assign blame. Applying Lakhamshi, where blame cannot be apportioned between two negligent drivers it must be divided equally. The judge gave no demonstrated basis for making the 1st respondent shoulder more liability for driving a bigger vehicle.
Whether the reduction of general damages from Ksh.1,200,000 to Ksh.700,000 was justified
The reduction was correct; the High Court relied on comparable awards for similar injuries and applied the right principles
Applying Butt v Khan, an appellate court interferes only where the award is inordinately high or low or based on wrong principles or misapprehended evidence. The High Court analysed comparable decisions involving similar fractures and the Court of Appeal was satisfied Ksh.700,000 was sufficient general damages.
Whether special damages of Ksh.99,796 paid through NHIF are recoverable from the tortfeasor
Not recoverable; awarding them to the plaintiff who did not go out of pocket would amount to unjust enrichment
The sum was paid by NHIF, a statutory fund, and the appellant was not legally obliged to refund it. The Court fully agreed with the learned judge that since the payment was made through NHIF, awarding it to the appellant would unjustly enrich him.
Legal principles established
#- The mandate of a second appeal court is confined to matters of law only
- Where it is not possible to apportion blame between two negligent drivers, blame is properly divided equally
- An appellate court will not disturb an award of general damages unless it is inordinately high or low or based on wrong principles or misapprehension of the evidence
- The plaintiff in a negligence action bears the burden of proving each element of the tort on a balance of probabilities
- Compensation must be evaluated by reference to the nature and extent of injuries and comparable past awards
Court orders
#- 1.Appeal dismissed save for the issue of liability
- 2.Substitution of the High Court's 70:30 finding on liability with a 50:50 finding as against the appellant and the respondents jointly and severally
- 3.Final award fixed at Ksh.351,250 (general damages Ksh.700,000 plus special damages Ksh.2,500, less 50% contributory negligence)
- 4.Each party to bear its own costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Appeal No. 427 of 2015
- Jurisdiction invoked
- Second appeal to the Court of Appeal on matters of law only (Court of Appeal jurisdiction over appeals from the High Court)
Relief refused
#Restoration of the trial court's finding on 100% liability of the respondents
Court found conflicting evidence required corroboration; absent independent evidence, blame should be divided equally
Increase of general damages above Ksh.700,000
High Court's comparable-award analysis was sound; no wrong principles or incomparable case law shown
Recovery of special damages of Ksh.99,796 paid through NHIF
Awarding the sum would amount to unjust enrichment as the appellant did not go out of pocket
Interest on special damages from date of filing suit
Not granted; appeal on interest subsumed in dismissal
Costs
Each party bears its own costs of this 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.
The mandate of this Court in a second appeal is to confine itself to matters of law only, unless it is shown that the courts below considered matters they ought not to have considered, or failed to consider matters they should have considered, or looking at the entire decision, it is perverse.
We hold the view that having re-evaluated and assessed the evidence before the trial court and in the absence of any independent evidence on how the accident occurred or evidence from the police based on investigations conducted after the accident, the learned judge ought to have apportioned liability 50:50.
We find no basis as to why the 1st respondent should shoulder more liability because he was incharge of a bigger vehicle.
An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...
The upshot is that this appeal is devoid of any merit, and is accordingly dismissed, save for the issue of liability. We accordingly substitute the 70:30 findings of the High Court on liability with a 50:50 finding as against the appellant and the respondents jointly and severally.
Going by the history of this matter and the findings of the courts below, we direct that each party bears its own costs of this appeal.
Issues in the judgment
#Date of accident stated inconsistently as 20th March 2012 and 20th March 2013
Coram lists 'JW LESSIT' but signature block reads 'J. LESIIT'
Award figure misprinted as 'Ksh.1,2000,000' in two places
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutubwa v Thermopak Limited & another", Case Analysis (2024). Civil Appeal 257 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1960/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.