Kaikai v Chacha & 2 others (Civil Appeal E028 of 2020) [2025] KECA 1278 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs. 32 million road accident judgment, ruling that claiming a tyre burst was 'inevitable' requires solid maintenance evidence, not just words.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the appellant to blame for the accident, and if so, to what extent?
- 2.Are the damages awarded by the learned Judge excessive?
- 3.(Incidental) Whether the doctrine of res ipsa loquitor, not pleaded, could found the finding on liability
Key legal issues
#Liability for a road accident caused by a tyre burst; whether the burst was an inevitable accident
The appellant's defence of inevitable accident failed; he was 90% liable as the trial Judge had found, having driven at maximum speed fully loaded and without attempting to decelerate, and having adduced no evidence of maintenance of the vehicle or tyres.
The Court, as a first appellate court, re-evaluated the evidence and agreed with the trial Judge that a vehicle driven at a reasonable speed on a straight road does not swerve violently and roll several times. The plea of inevitable accident engaged section 109 of the Evidence Act, placing the burden on the appellant. He gave only a bare assertion that the vehicle was well maintained; no evidence of tyre age, servicing, tyre pressure, wheel alignment or balancing was produced. Following Dewshi and Interfreight Forwarders, the burden was undischarged.
Whether general and special damages awarded were excessive
The awards were not excessive; the appellate test for interference with damages was not met and the special damages claim was treated as abandoned.
Applying Butt v Khan, the Court interferes only where an irrelevant fact was considered, a wrong principle applied, or the award is inordinately low or high. The trial Judge had analysed every head of claim, cited comparable authorities per Simon Taveta, and considered the medical reports and long-term effects on earning capacity and future medical expenses. Special damages of Kshs. 500,000 for wheelchairs and Kshs. 1,707,120 for the driver were unchallenged and treated as abandoned.
Whether the unpleaded doctrine of res ipsa loquitor could sustain the finding of negligence
The issue did not require determination: it is a presumption of law, the respondents had pleaded the accident occurred in circumstances in which it should not have occurred, and the appeal fails on the inevitable-accident defence in any event.
The appellant objected that res ipsa loquitor was never pleaded. The Court held it is a presumption of law and that the pleadings already asserted the accident occurred in circumstances in which it should not have occurred. Since the Court held the appellant's main defence of inevitable accident had no merit, the res ipsa loquitor point was academic and did not affect the outcome.
Legal principles established
#- On a first appeal from the High Court, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
- A defendant pleading inevitable accident bears the burden of proving, under section 109 of the Evidence Act, that the accident happened over which he had no control and which could not have been avoided even with the greatest care and skill; a bare averment that the vehicle was well maintained, without evidence of maintenance, suffices not.
- An appellate court will only interfere with an award of damages where the trial court took into account an irrelevant fact, applied a wrong principle, or the award is inordinately low or high such that it is an erroneous estimate.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The costs of this appeal and in the High Court shall be borne by the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Naivasha
- Civil Case No. 15 of 2015
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (role as a first appellate court; specific constitutional/statutory provision not cited in the judgment)
Relief refused
#Apportionment of liability other than the trial court's 90% against the appellant
The Court found the appellant failed to exercise the judgment, skill and care of a competent driver and did not discharge the burden of proving inevitable accident
Reduction of the general damages awarded to the 1st and 2nd respondents
No basis shown to interfere; the trial Judge analysed every head of claim and cited comparable awards
Costs
The costs of this appeal and in the High Court shall be borne by the appellant
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 upshot of the foregoing is that this appeal has no merit both on the question of liability and quantum. We dismiss it in its entirety. We further order that the costs of this appeal and in the High Court shall be borne by the appellant.
On a first appeal from the High Court, this Court should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
Throwing a general statement that the accident was inevitable is not enough and if the courts were to accept such a general statement, this would amount to a blank cheque for careless and negligent driving.
We must emphasize that the standard is not perfection, but rather the conduct of a reasonably prudent person faced with similar circumstances
Inevitable accident can be a defence to a charge of negligence, but it cannot succeed unless the defendant can prove that something happened, over which he had no control and the efiect of which could not have been avoided by the exercise of care and skill
Issues in the judgment
#The judgment states in paragraph 4 that 'the respondents filed this appeal', yet the appeal was filed by the appellant who was aggrieved by the decision (memorandum of appeal dated 25th November 2020 listing the appellant's grounds); this appears to be a drafting error.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndaa v Gichohi (Civil Appeal 634 of 2019) [2026] KECA 850 (KLR)[2026] KECA 850 (KLR)30 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Kaikai v Chacha & 2 others (Civil Appeal E028 of 2020) [2025] KECA 1278 (KLR)", Case Analysis (2025). Court of Appeal at Nakuru - Civil Appeal (memorandum of appeal dated 25th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1278/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.