[2003] KEHC 132 (KLR)
The court found that the trial magistrate correctly held the appellants liable in negligence for the respondent's injuries. The evidence established that the respondent was on duty and on the tractor with the consent of the appellants' driver. There was no evidence of negligence on the part of the respondent, and...
Source-derived case information.
- Citation
- [2003] KEHC 132 (KLR)
- Parties
- Appellant: Sasini Tea & Coffee Ltd; Appellant: Mr. Kanyeri; Respondent: Daniel Kariuki Kise
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 235 of 2001
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- PJ Ransley
- Legal Topics
- Negligence, Employer Liability, Personal Injury, Pleadings and Admissions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sasini Tea & Coffee Ltd
Appellant
Mr. Kanyeri
Appellant
Daniel Kariuki Kise
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in finding the appellants liable in negligence for the respondent's injuries.
- 2 Whether failure to file a reply to defence amounted to admission of liability.
- 3 Whether the respondent was on the tractor with the consent of the appellants' driver.
Ratio Decidendi
The court found that the trial magistrate correctly held the appellants liable in negligence for the respondent's injuries. The evidence established that the respondent was on duty and on the tractor with the consent of the appellants' driver. There was no evidence of negligence on the part of the respondent, and the particulars of negligence alleged by the appellants were not proved. The court further clarified that failure to file a reply to defence does not amount to admission of liability, as there is a joinder of issue on the defence. The magistrate's acceptance of the respondent's evidence and rejection of the appellants' defences was upheld. Accordingly, the appeal was dismissed...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The decision of the magistrate is upheld.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO. 235 OF 2001
SASINI TEA & COFFEE LTD……………..1ST APPELLANT
MR. KANYERI……………………………. 2ND APPELLANT
VERSUS
DANIEL KARIUKI KISE …………..…….RESPONDENT
JUDGMENT
This is a decision against the Judgment of the SRM Thika in SRM CC Civil Suit 4065 of 2000 in which he found the Respondent liable for the Appellant’s injuries and awarded a sum of Shs.250,000/= by way of general damages.
He found the driver of the truck liable in negligence as he was driving at a high speed. He rejected the defence that the Respondent rode the tractor without the consent of the driver. The Magistrate found that the Plaintiff was on duty at the time of the accident. In its Defence the Defendant pleaded that the accident was wholly or substantially caused by the Plaintiff’s own negligence, as particularized in the Plaint.
Mr. Mburu for the Respondent submitted that failure to file a reply amounted to admission of liability. He relied on the case of Mount Elgon Hardware versus United Millers Ltd C.A 19 of 1996.
In that case the Court of Appeal held the Learned Judge was perfectly entitled to conclude that the Appellant had admitted the negligence alleged in the defence in term of O.VI. Rule 9(1) of the Civil Procedure Rule In Elijah Roimen V. Stephen Cawa H.C.A. 748 of 2002 I held that a Reply to Defence only necessary where it was intended to confess and avoid an allegation. Under O.6 rule 10 it is clear that there if no reply to a defence is filed there is a jointer of issue on that defence.
The Magistrate found that the Respondent was traveling in a the tractor and found that the Appellant’s driver was speeding leading to the accident. The Plaintiff’s evidence was that he was hit by a coffee tree, which threw him from the tractor. The Magistrate accepted this evidence. He also accepted that Respondent had the consent of the Appellant’s driver to be on the Tractor. In this evidence Charles Njoroge an estate Manager said that Tractors were used occasionally to carry people. There was no evidence of any negligence on the part of the Respondents adduced by the Appellant and the Magistrate rejected the defence that the Respondent drove without the consent of the owner. The particulars of negligence by the Respondent not having been proved the Magistrate was correct in making no finding in that respect.
In the result I uphold the decision of the Magistrate and dismiss this appeal with costs to the Respondent.
Dated and delivered at Nairobi this 21st day of November, 2003
P.J. RANSLEY
JUDGE