IN THE COURT OF APPEAL FOR EAST AFRICA
CORAM: (DE LESTANG, AG.P, DUFFUS, and AG. V-P, and SPRY, J.A.)
CIVIL APPEAL, NO. 18 OF 1968
1. NGALA KHAMB1}
2. EBRAHIM MULLA. MOHAMED BHAI}…………………………..APPELANTS
1. ABDI ALI MAHITHI}
2. NURGIAN & SONS LIMITED}…………..………………………RESPONDENT S
[Appeal from a judgment of the High Court of Kenya at Mombasa (Mosdell, J.) dated 26th February1968) in Civil Case No. 336 of 1966]
30 October, 1968.
The following Judgments were read:-
DE LESTANG, Ag.P.
This is an appeal between joint tortfeasors against the apportionment of blame to each of them, by the trial judge, Mosdell, J., in the High Court of Kenya sitting in Mombasa. The facts giving rise to the appeal may be briefly stated. At about 8 p.m. on 1st March, 1966 a Mercedes Benz motor car was travelling from Nairobi to Mombasa on the Nairobi/ Mombasa road.
At the same time a Fiat lorry with a trailer belonging to the 2nd respondent was being driven from Mombasa to Nairobi on the same road by its servant, the 1st respondent. There also happened to be parked on the same road facing Nairobi a lorry belonging to the 2nd appellant under the care of the 1st appellant its driver and servant of the 2nd appellant. It had neither red tail lights nor rear reflectors and was parked wholly or almost wholly on the tarmac on its proper side of the road although it could easily have been parked on the verge of the road. As the Mercedes and the Fiat lorry approached each other from opposite directions with their lights on the latter vehicle pulled over to its offside in order to overtake the parked lorry. In so doing the Fiat lorry scraped the offside of the parked lorry and collided with the Mercedes as a result of which the lorry caught fire and the Mercedes became a total loss. The learned judge held the drivers of both Lorries negligent and apportioned their blame at 75% in the case of the parked lorry and 25% in the case of the Fiat lorry.
It is against the apportioning of blame to the parked lorry that the appellants appeal. The owner of the Mercedes car, who was plaintiff in the court below, was held to be completely blameless and is not a party to this appeal. It is well settled that where a trial judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial judge ( Brown & Or. vs. Thompson (1968) 2 All. E.R. 708 in which the previous authorities are referred to in particular British Fame (Owners) v. MacGregor (Owners_) (1943) 1 All.E.R. 33. ) The same principle was followed in Shariff v_ Sethna  E.A. 239 a decision of this Court. Mr. Mackie-Robertson for the appellants strongly argued that in arriving at his apportionment in the present case the learned judge erred in that he failed to infer from the evidence that the Fiat lorry was travelling much faster than its driver admitted, the inadequacy of the headlights of that vehicle 9 and the fact that if its lights had been adequate it ought to have picked out the parked lorry in its headlights a long way away. He also contended that the learned judge ought to have accepted the evidence of a witness who stated that he was with the parked lorry and waved a lighted torch at the on-coming Fiat lorry to indicate its presence on the road.
Mr. M. Satchu who appeared for the respondents pointed out that not only it was not pleaded in the particulars of negligence that the lights of the Fiat lorry were inadequate or defective but that the un contradicted evidence on the record was to the effect that the lights were in good condition. He also contended that the proper speed at which the Fiat lorry was travelling was borne out by the uncontradicted evidence of an expert witness and that the driver of the Fiat lorry was unable to pick out the parked lorry because, as he said, he was dazzled by the lights of the on-coming Mercedes.
The learned trial judge made no express finding on the speed at which the Fiat lorry was travelling nor on the condition of its lights but reading his judgment as a whole he seems to have been satisfied on both these matters as he accepted the version of the accident given by its driver.
It seems to me also that the learned judge cannot be criticised for not accepting the evidence of the witness about the waving of a torch for the reasons he gave and in view of the evidence of the driver of the Fiat lorry, which he accepted, that the parked lorry was unattended at the time and its driver only arrived on the scene fifteen minutes later whereas the witness had said that he was sitting in the cab.
I am not convinced that the learned judge in the present case failed to give effect to some material fact or to take into account some material consideration in which case only would it be right for this Court to intervene.
It may well be that had I been trying this case I might have apportioned the blame slightly differently but this is no good reason to interfere with the assessment made by the learned judge.
I would accordingly dismiss this appeal with costs and as Duffus, Ag. V-P., and Spry, J.A. also agree it is so ordered.
DUFFUS AG. V -P.
I also agree.