[1996] KECA 29 (KLR)
The appeal was dismissed because the appellant failed to adduce evidence to prove negligence against the respondents. The court reaffirmed the principle that liability in negligence cases requires proof of fault, and since no such evidence was presented, the trial judge was correct in dismissing the claim. The court...
Source-derived case information.
- Citation
- [1996] KECA 29 (KLR)
- Parties
- Appellant: M’IRUANJI MUCHAI; Respondent: BROADWAYS BAKERY; Respondent: KIBAKI MAIKWE
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 215 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JE Gicheru, RO Kwach
- Legal Topics
- Negligence, Motor Vehicle Accidents, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’IRUANJI MUCHAI
Appellant
BROADWAYS BAKERY
Respondent
KIBAKI MAIKWE
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant proved negligence against the respondents as required by law.
- 2 Whether the appellant had locus standi to bring the suit without letters of administration.
Ratio Decidendi
The appeal was dismissed because the appellant failed to adduce evidence to prove negligence against the respondents. The court reaffirmed the principle that liability in negligence cases requires proof of fault, and since no such evidence was presented, the trial judge was correct in dismissing the claim. The court also noted, without deciding, that the appellant's locus standi was questionable as there was no evidence he had obtained letters of administration for the deceased's estate.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NYERI
Civil Appeal 215 of 1995
M’IRUANJI MUCHAI ……………………………...………………. APPELLANT
AND
BROADWAYS BAKERY ………………………………… 1ST RESPONDENT
KIBAKI MAIKWE ………………………...……………….. 2ND RESPONDENT
(Appeal from the Judgment and Decree of the High Court of Kenya ( Mr Justice R Kuloba) delivered at Meru on 22nd September, 1993
In
H.C.C.C. NO 196 OF 1991)
**************
JUDGMENT OF THE COURT
The appellant filed proceedings in the superior court against the respondents to record damages no behalf of the children of his brother who was killed in a motor accident involving a motor vehicle owned by the first respondent but being driven by the second respondent.
Negligent was alleged and particularized in the plaint but no evidence was given to prove it. On that basis the Judge found negligence not proved and dismissed the appellant’s claim. There can be no doubt at all that the Judge was right because as this Court held in the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, there is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.
There is also the secondary point whether the appellant had a locus standi in the first place to bring this suit as there is no evidence that he had taken out letters of administration of the estate of his deceased brother. This point was not canvassed before the Judge, and we are not deciding this appeal on it, only that we mention it in passing.
For these reasons this appeal must fail and it is dismissed with costs to the respondents.
Dated and delivered at Nyeri this 16th day of May, 1996.
JE GICHERU
…………………
JUDGE OF APPEAL
RO KWACH
……………………..
JUDGE OF APPEAL
RSC OMOLO
…………………….
JUDGE OF APPEAL