[2014] KEHC 6545 (KLR)

[2014] KEHC 6545 (KLR)

The court found that while the appellants bore primary responsibility for the accident, the respondent was contributorily negligent for failing to check the right side before crossing the road, as he admitted in evidence. The trial court erred in apportioning 100% liability to the appellants and in considering injuries not pleaded in the plaint when assessing damages. The appellate court therefore apportioned liability at 70% against the appellants and 30% against the respondent, and ordered that general damages be recalculated accordingly. Special damages were left unchanged, and the appellants were awarded half the costs of the appeal and in the court below.

Citation
[2014] KEHC 6545 (KLR)
Parties
Appellant: Peter Kamau Kanini; Appellant: Peter Mwenja Kariithi; Respondent: Isaiah Owili Kiburo
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
19 February 2014
Case Number
Civil Appeal 178 of 2008
Procedural Posture
Civil Appeal / Judgment
Outcome
Appeal allowed in part; liability apportioned 70% to appellants and 30% to respondent; general damages to be recalculated; special damages unchanged; appellants awarded half costs.
Legal Topics
Road Traffic Accidents, Negligence Apportionment, Damages Quantification, Pleadings and Proof
Source Language
English
Tort Law Civil Procedure Road Traffic Accidents Negligence Apportionment Damages Quantification Pleadings and Proof

Case Brief

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Parties

Peter Kamau Kanini

Appellant

Peter Mwenja Kariithi

Appellant

Isaiah Owili Kiburo

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the appellants were 100% liable for the road traffic accident as found by the trial court.
  2. 2 Whether the trial court erred in assessing and awarding damages, including consideration of unpleaded injuries.
  3. 3 Whether the respondent was contributorily negligent in the circumstances of the accident.

Ratio Decidendi

The court found that while the appellants bore primary responsibility for the accident, the respondent was contributorily negligent for failing to check the right side before crossing the road, as he admitted in evidence. The trial court erred in apportioning 100% liability to the appellants and in considering injuries not pleaded in the plaint when assessing damages. The appellate court therefore apportioned liability at 70% against the appellants and 30% against the respondent, and ordered that general damages be recalculated accordingly. Special damages were left unchanged, and the appellants were awarded half the costs of the appeal and in the court below.

Court Disposition

Appeal allowed in part; liability apportioned 70% to appellants and 30% to respondent; general damages to be recalculated; special damages unchanged; appellants awarded half costs.

Orders

  • Negligence apportioned at 70% against the appellants and 30% against the respondent.
  • General damages of Kshs. 300,000 to be assessed based on the above apportionment.