[2005] KEHC 1387 (KLR)
Despite the interlocutory judgment entered due to the defendant's failure to appear, the court was required to assess the evidence presented at formal proof. The police officer who investigated the accident testified that the deceased's vehicle veered into the lane of oncoming traffic, causing the collision with the...
Source-derived case information.
- Citation
- [2005] KEHC 1387 (KLR)
- Parties
- Plaintiff: Madelon Joele De Vries (Suing as the personal representative of the Estate of Kepher Ochola Misasa - Deceased); Defendant: Eldoret Express Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 25 of 2005
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit dismissed
- Legal Topics
- Fatal Accidents, Negligence, Road Traffic Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Madelon Joele De Vries (Suing as the personal representative of the Estate of Kepher Ochola Misasa - Deceased)
Plaintiff
Eldoret Express Ltd
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant was liable for the fatal accident that caused the death of Kepher Ochola Misasa.
- 2 Whether the plaintiff was entitled to damages for the deceased's estate.
Ratio Decidendi
Despite the interlocutory judgment entered due to the defendant's failure to appear, the court was required to assess the evidence presented at formal proof. The police officer who investigated the accident testified that the deceased's vehicle veered into the lane of oncoming traffic, causing the collision with the defendant's bus. The court found this evidence credible and concluded that the deceased was solely responsible for the accident. Consequently, the plaintiff failed to prove the defendant's liability on a balance of probabilities, and the suit was dismissed.
Court Disposition
suit dismissed
Orders
- The plaintiff's suit is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU Civil Suit 25 of 2005
MADELON JOELE DE VRIES
(Suing as the personal representative of the Estate of
KEPHER OCHOLA MISASA - DECEASED) ........................... PLAINTIFF
-VERSUSELDORET
EXPRESS LTD ...................................................... DEFENDANT
J U D G M E N T
In this case MADELON JOELE DE VRIES, the plaintiff has sued M/s Eldoret Express Ltd, the defendant seeking damages for fatal injuries caused to one KEPHER OCHOLA MISASA, the deceased.
On 22/12/2004 at about 9. 00 pm, the late Kepher Ochola Misasa, who was then the Project Manager of the Pamoja Child foundation, based at Awasi was traveling to Kisumu in the motor vehicle registration number KAN 499J along Ahero - Kisumu Road. At a place known as Number Okana, he had a collision with a bus registration number KAS 040K owned by the defendant. As a result of the said accident Kepher Ochola Misasa, sustained fatal injuries from which he died instantly on the spot. On 23/3/2005, the plaintiff brought this action against the defendant’s Company which was served with summons but it did not enter appearance consequently on an application by the plaintiff’s counsel an interlocutory judgment was entered.
When the matter came up for formal proof, the plaintiff testified and stated that when the accident occurred, she had gone to Netherlands on maternity leave and that she only came back later on after the accident. The plaintiff called Police Constance Woba of Ahero Police Station who had visited the scene immediately after the accident. This witness who testified as PW2, and claimed that he found the bus which was heading towards Ahero parked partly on the left side of the road facing Ahero and the Toyota pick - up registration no KAN 499 J which was going to Kisumu was after the accident on left side of the road facing Kisumu. He added that the point of impact was on the right side of the road as one faces Kisumu. He added that the point of impact was 1. 6 m to the right edge of the road. This witness said that before the accident, the driver of the pick - up had gone of on to the lane of the on coming vehicles and that that caused the accident. The witness said he blamed the driver of the pick - up for causing the said accident.
In the light of the evidence of PW2 who had immediately visited the scene and had carried out investigations, and although there is on record an interlocutory judgment, I would decline to hold that the defendant is to blame for the said accident. I would therefore dismiss the suit.
Dated and delivered at Kisumu this29th day of July, 2005.
B. K. TANUI
JUDGE
In the presence of; Mr Olago Aluoch for plaintiff
N/A for defendant
B. K. TANUI
JUDGE
/hao