[2018] KEHC 3833 (KLR)

[2018] KEHC 3833 (KLR)

The High Court found that the trial magistrate erred in exonerating the respondents from liability by failing to properly evaluate the evidence and apply the correct legal principles regarding negligence and contributory negligence involving children. The 3rd Respondent, as the driver, admitted seeing children playing near the road from a considerable distance and thus had a heightened duty of care to anticipate that a child might suddenly cross. His failure to take adequate precautions and the inability of his vehicle to stop in time, despite applying brakes, indicated that he was driving at an unsafe speed or without due care. The court held that a child of seven years cannot be held...

Citation
[2018] KEHC 3833 (KLR)
Parties
Appellant: S N (Suing as the legal administrator of the Estate of the Late M N N); Respondent: Hussein J. Omar; Respondent: Godfrey Mwangi; Respondent: Stephen Kinyua Mwaura
Court
High Court
Court Station
High Court at Nakuru
Jurisdiction
Kenya
Judgment Date
27 September 2018
Case Number
Civil Appeal 97 of 2015
Procedural Posture
Civil Appeal / Judgment
Outcome
Appeal allowed. Trial court's finding on liability set aside. Respondents held jointly and severally liable in negligence. Damages as assessed by the trial court upheld. Costs of the appeal and court below awarded to the appellant.
Judges
JK Mulwa
Legal Topics
Negligence, Fatal Accidents, Contributory Negligence, Duty of Care, Road Traffic Accidents
Source Language
English
Tort Law Civil Procedure Negligence Fatal Accidents Contributory Negligence Duty of Care Road Traffic Accidents

Case Brief

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Parties

S N (Suing as the legal administrator of the Estate of the Late M N N)

Appellant

Hussein J. Omar

Respondent

Godfrey Mwangi

Respondent

Stephen Kinyua Mwaura

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the 3rd Respondent was negligent and liable for the accident that caused the death of the deceased child.
  2. 2 Whether a child of seven years can be held contributorily negligent in a road traffic accident.
  3. 3 Whether the trial court misapprehended the evidence and applied the wrong legal principles regarding liability.

Ratio Decidendi

The High Court found that the trial magistrate erred in exonerating the respondents from liability by failing to properly evaluate the evidence and apply the correct legal principles regarding negligence and contributory negligence involving children. The 3rd Respondent, as the driver, admitted seeing children playing near the road from a considerable distance and thus had a heightened duty of care to anticipate that a child might suddenly cross. His failure to take adequate precautions and the inability of his vehicle to stop in time, despite applying brakes, indicated that he was driving at an unsafe speed or without due care. The court held that a child of seven years cannot be held...

Court Disposition

Appeal allowed. Trial court's finding on liability set aside. Respondents held jointly and severally liable in negligence. Damages as assessed by the trial court upheld. Costs of the appeal and court below awarded to the appellant.

Orders

  • The judgment of the trial magistrate on liability is set aside.
  • Respondents are jointly and severally liable in negligence for the accident.