Mwanasokoni V Kenya Bus Services Ltd  EKLR
|Civil Appeal 35 of 1985||26 Jul 1985|
John Mwangi Gachuhi, James Onyiego Nyarangi, Alan Robin Winston Hancox
Court of Appeal at Mombasa
Mwanasokoni v kenya Bus Services Ltd
Mwanasokoni v kenya Bus Services Ltd  eKLR
Mwanasokoni v Kenya Bus Services Ltd & 3 others
Court of Appeal, at Mombasa
July 26, 1985
Hancox, Nyarangi JJA & Gachuhi Ag JA
Civil Appeal No 35 of 1985
(Appeal from the High Court at Mombasa, Bhandari J)
Civil Practice and Procedure - issues – issues of fact – additional issue framed and added by judge in course of judgment - whether issue properly raised – circumstances in which Court of Appeal will overturn finding of fact by High Court judge- Civil Procedure Rules order XIV rule 5.
Appeal – Court of Appeal – powers of - power to interfere with finding of fact by High Court judge – circumstances in which such power is exercised – power to examine and re-evaluate evidence.
Damages – general damages – for negligence – loss of vision in right eye due to injury in traffic accident – measure of damages.
The appellant filed a suit in the High Court for damages for negligence on account of an accident in which an omnibus belonging to the 1st respondent and driven by the 3rd respondent collided with a bus belonging to the 2nd respondents and driven by the 4th respondent. The appellant alleged that her right eye had been injured in the accident and that the injury had resulted in the loss of vision in that eye. In the course of his judgment, the trial judge added a fifth issue of fact for decision, namely, whether the appellant had been injured as a result of the accident. The judge found that the driver of the omnibus was negligent, that the appellant was a passenger in the other bus and, rejecting the appellant’s evidence on the alleged injury, he found that it had not been proved satisfactorily that the appellant had suffered any injury as a result of the collision. The appellant’s suit was dismissed, and she appealed.
- A judge is empowered by the Civil Procedure Rules, order XIV rule 5 to frame additional issues on such terms as he thinks fit at any time before the passing of the decree in a case. Notwithstanding this provision of law, the trial judge in this case would have been obliged to answer the same question as that raised in the additional issue in order to arrive at a just and fair decision on the case.
- The Court of Appeal will interfere with a finding of fact by the High Court where the finding is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the finding.
- The appellate court also has the power to examine and re-evaluate the evidence on a first appeal where that becomes necessary.
- The trial judge was wrong in rejecting certain strong and unchallenged evidence which corroborated that of the appellant and in giving undue weight to some other evidence in the case. If the judge had not made these errors, he would have decided the additional issue in favour of the appellant.
- The 3rd respondent was wholly liable for the collision and it was his negligence which caused injury to the appellant. The 1st respondent was vicariously liable for the negligence of the 3rd respondent. 6. The appellant was entitled to Shs. 100,000 in general damages for her injury.
- Sotiros Shipping v Sauviet Sohold The Times, 16th March, 1983
- Peters v Sunday Post Ltd  EA 424
- Watt v Thomas  1 All ER 582;  AC 484
- Juma v Kenya Glassworks Ltd Civil Appeal No 1 of 1980 (unreported)
- Kemfro Africa Ltd t/a Meru Express Services (1976) v A M Lubia and Olive Lubia Civil Appeal No 21 of 1984 (unreported)
- Makube v Nyamuro Civil Appeal No 8 of 1983;  KLR 327
- Kiriri Cotton Co Ltd v R K Dewani  EA 239
- Young v Bristol Aeroplane Co  2 All ER 293;  1 KB 718
- Morelle Ltd v Wakeling  1 All ER 708;  2 QB 379
- Mwangi & Another v Wambugu (1983/84) 2 KAR 100;  KLR 453
- Civil Procedure Rules (cap 21 Sub Leg) order XIV rule 5
- Mr AYA Jiwaji for the Appellant
- Mr M Satchu for the 1st & 3rd Respondents
- Mr CB Gor for the 2nd & 4th Respondents