Turfena Achieng’ Abuto & Another V William Ambani Mise C /o Ahero Total Service Station & Another  EKLR
|Civil Appeal 177 of 1995||01 Dec 1995|
Akilano Molade Akiwumi, Philip Kiptoo Tunoi, Richard Otieno Kwach
Court of Appeal at Kisumu
Turfena Achieng’ Abuto & Molly Achieng’ Abuto (minor-next friend Michael Abuto Nyamuok, her father) v William Ambani Mise c/o Ahero Total Service Station & Total Oil Products (East Africa) Limited
Turfena Achieng’ Abuto & another v William Ambani Mise c /o Ahero Total Service Station & another  eKLR
Turfena Achieng’ buto & another v Mise t/a Ahero Total Service Station & another
Court of Appeal, at Kisumu December 1, 1995
Kwach, Akiwumi & Tunoi JJ A
Civil Appeal No 177 of 1995
(Appeal from a judgment of the High Court of Kenya at Kisumu
(Justice Kuloba) dated 16th March, 1995 in
HCCC No 198 of 1994)
Product Liability – vendor of paraffin – duty of care to those who buy paraffin.
Product liability – contaminated paraffin – whether purchaser of paraffin is under duty to ensure that paraffin is not contaminated.
Negligence – plea of res ipsa loquitor – circumstances in which the plea may be made.
The appellant in this case sued the respondents in the High Court seeking compensation for burns which they received as a result of explosion and subsequent catching of fire of paraffin which they bought from the 1st respondent’s petrol station supplied by the second respondent.
Evidence was lead to show that the paraffin in question had been bought from the 1st respondent’s petrol station and further that there had been complaints by other consumers of paraffin bought from the 1st respondent’s petrol station and supplied by the second had exploded prompting the police to shut down the 1st respondent’s station pending investigation.
The appellants in their claim relied on the principle of res ipsa loquitor which states that the fact that the accident took place the appellants must have been negligent in ensuring the paraffin they sold to the public was not contaminated.
The trial judge at the conclusion of the hearing and without any evidence that there was intervening acts which could have caused the contamination of the paraffin after buying it from the 1st respondents station, dismissed the suit hence the appeal.
1. In the context of rural life where the appellants live, paraffin is an article of common household use and known to all rural dwellers as a safe substance and there is thus, no special duty on the part of the appellants to take any special precautions in handling it.
2. The fact that the paraffin exploded and caught fire means that it was contaminated and the onus would be on the respondents to show that the contamination was not due to their negligence.
3. Where the circumstances of the accident give rise to the inference of negligence the defendant, in order to escape liability has to show that there was a probable cause of the accident which does not create negligence or that the explanation for the accident was consistent only with an absence of negligence.
4. The respondents who dealt in paraffin which is an article of common domestic use particularly in rural parts of Kenya, owed a duty of care to the consumer that what was sold as paraffin, was not contaminated and made dangerous.
5. The purchaser of paraffin has no opportunity of testing the quality of the paraffin that he purchases neither is he indeed expected to test it.
1. Mwananchi Service Station & another v Minga  EA 305
2. Embu Public Road Services v Riimi  EA 22
3. Muhhiddin v El Kassaby  EA 201
5. Donoghue v Stevenson  AC 562;  1 All ER 1
No statutes referred to.