IN THE COURT OF APPEAL FOR EAST
CORAM: (LAW, LUTTA AND MUSTAFA, JJ.A.)
CIVIL APPEAL NO 48 OF 1971
KENYA BUS SERVICES LIMITED}…………….………………..APPELANT
Widow of Zedekiah Malanda, deceased}………………………. RESPONDENT
[Appeal from the judgment of the High Court of Kenya at Nairobi (Madan, J.) dated 21st May, 1971 in Civil Suit No. 819 of 1970]
28th April, 1972
The following Judgments were read:-
On 6th July 1968 in Jogoo, Road, Nairobi, a bus driven by one of the appellant's employees collided with one Malanda as a result of which Malanda died. Malanda's widow, the respondent herein, filed an action for herself and on behalf of her three children as dependants under the Fatal Accidents Act.The learned judge found that the appellant's driver was wholly to blame for the accident and awarded the respondent damages totaling shs 37,160/-. The appellant now appeals.
The evidence adduced by the respondent's witnesses was as follows:Pw3, a friend of the deceased, testified that on the material day he and the deceased were standing on one side of Jogoo Road and were talking with each other. The deceased then left him to cross the road.
At that time two buses one behind the other, were coming towards where they were. The bus which was behind was overtaking the bus in front at a high speed. The deceased had already crossed the road and had one foot on the pavement on the other side when the overtaking bus hit the deceased killing him. P.W.3 was positive that the deceased was behaving and talking normally and did not smell of drink at all.
He also said that he told a policeman, D.W.5 Inspector Kamau, that he saw the collision. He said that he went to the police station but nobody recorded his statement. P.W.4, a brother of the deceased, alleged that he also saw the accident and gave evidence to the same effect as PW3.PW4 stated that the deceased never drank and had not been drinking on the day of the accident. He made a statement to D.W.5, Inspector Kamau two days after the accident. In the statement he said that he was walking on Jogoo Read he heard people saying that there was an accident and when he proceeded to the spot of the accident he found his brother, the deceased, who was lying dead on the ground.
P.W.5, a relative of the deceased, also alleged that he said the accident and testified to the same effect as P.W.3 and P.w.4. P.w.5 had also made a statement to Dw5 Inspector Kamau on 8th July 1968, two days after the accident, in which he said that as he was walking along Jogoo Roe4 on the material day he saw a gathering of people. He went up to the group of people and then saw the deceased lying under a bus.
Both P.W.4 and Pw5 testified in court that in their statements to D.W.5 Inspector Kamau they had said that they actually saw the collision taking place and that the police officer must have omitted or misrecorded what they said. The bus driver D.W2 testified that he was driving his bus along Jogoo Road on the material day. He said the accident took place near Nyasa Road. At the time of the accident there was no other bus on the road.He had stopped at a bus stop and was then proceeding to another bus stop nearby.
He was driving at 28 to 30 miles per hour. He saw a person crossing the road in front of him and he applied his brakes. The person then stopped. He swerved to his right and the person tried to cross the road again. Then DW2 swerved to his left and the person staggered backwards. DW2 then swerved to his extreme right and the person ran cross the road and collided with the bus. D.W.2 stopped his bus and found the person lying under the bus behind the loft front wheel which would run over him. D.W.2 said that the person was walking in a zigzag manner like a drunken man. D.W.2 however was somewhat confusing as to the drunken state of the person, as at some stage in his cross-examination he said that he decided that the deceased was drunk after he had got out of the bus and could smell alcohol coming from the deceased from underneath the bus.
D.W.1 Dr. Ribeiro performed a post-mortem on the deceased and said that there was a very powerful alcoholic smell from the deceased's stomach when it was opened. He took blood and urine samples for alcoholic analysis and the result stated that blood alcohol figures indicated a minimum intake of 9 ½ pints of beer or 18 whiskies.
There were 345 mg. He said that at 300mg. everyone is drunk. A person in the condition of the deceased could have walked automatically along a road. If the deceased was a teetotaler and had 18 whiskies circulating in his blood he would have been lying on the floor.
DW5 Inspector Kamau visited the scene of the accident shortly after it had occurred and looked for and found two witnesses at the scene. They wore P.W.4 and P.W.5. He recorded their statements two days later at the police station. He produced the statements and said that they were read back to both. PW4 and PW5 who agreed that they were correct and signed them. He only remembered these two witnesses. He did not see Pw3 at the scene or tell him to call at the police office to record his statement.
On the evidence I think it is clear that the collision took place on the wrong side of the road in so far as the bus was concerned, that the deceased was very intoxicated when he collided with the bus, and that DW5 Inspector Kamau correctly recorded the statements of PW 4 and PW5. The judge in his judgment said:-
"If I may use a gruesome word, the killing is admitted as a result of a collision between the bus and the deceased but negligence is denied. Liability is also denied. res ipsa loquitur.”
The learned judge then held that there was a presumption of negligence on the part of the bus driver arising from the fact of the collision. He found, on an analysis of the defence evidence; that the bus driver had failed to satisfy the court that he was not negligent. With respect, on the evidence adduced, the principle of res ipsa loquitur cannot apply. It is not one of those cases where it is clear that but for the negligence of the bus driver the accident could not have happened and that the deceased is totally blameless.
It is obvious that the deceased was very drunk, had probably lurched across the road in the face of an on-coming bus and possibly had staggered back and forth while crossing the road.
In such circumstances the negligence on the part of the deceased could hive contributed to the collision. Mr. Kapila sought to support the judge's finding that res ipsa loquitar applied on the authority of Cambay Trading Company v. Lewin (1943) 10 EACA 36. In my view the facts in that case are indistinguishable. There a car was being driven along on its correct side of the road and met anon-coming lorry in the opposite direction.
There was plenty of room for the vehicles to pass each other. Suddenly the lorry came right across to its wrong side of the road directly in the front of the car and collided with it. The lorry driver did not give evidence and there was no explanation of how the lorry came to its wrong side of the road. As no explanation was given as to how the lorry in such circumstances could have got across in front of the car, it was held that the principle applied.
Here a reasonable explanation was given and the bus driver testified as to how he tried to avoid the deceased who staggered back and forth across the road. In connection with this doctrine I need only refer to Bikwatirizo v. Railways Corporation  E.A. 82 where Spry, Ag. P. said:
"The application of the doctrine was very clearly set out by SCRUTTON, L.J. in Britannia Hygienic Laundry Co. v Thornycroft & Co. when he said (1925) 95 L.J.K.B. 237): The doctrine of res ipsa loquitur, as understand it, is this where you have a subject matter entirely under the control of one party and something happens while it is under the control of that party, which could not in the ordinary course of things happen without negligence you may presume negligence from the mere fact that it happens."
Fortunately the learned trial judge also said:-
"It may be decided that the principle of res ipsa loquitur does not apply in this case."
He then went on to consider the evidence adduced by both the parties. In respect of PW4 and PW5 the learned judge said:-
"The statements made to the police by two of them and which have been produced do not necessarily prove that they are liars"
With respect, I am unable to agree. P.W.4 and P.W.5 in their statements said that they came to the scene of the accident and saw the dece3sed lying on the road after the collision had happened.
In court, bout 3 years later they alleged that they actually saw the accident, and give practically identical accounts of how the accident occurred.
The learned judge also said:
"The amount of alcohol found in the deceased's body has left me mystified."
In my view it is crystal clear that the deceased was very intoxicated and his state of intoxication could perhaps confirm the evidence of the bus driver about the deceased's unusual and dangerous behaviour on the road. PW3 had said that just prior to the accident the deceased did not smell of drink.P.W.3 was clearly untruthful. Indeed the evidence of PW3 tallied in such minute details with that of P.W.4 and PW5 that it must be suspect.
I appreciate that I do not have the advantage of seeing or hearing the witnesses as the learned judge had, but on the evidence of the doctor as to the state of intoxication of the deceased and the evidence of the police inspector of the statements recorded by him from P.1.4 and P.W.5, factors which the learned judge somehow ignored or did not adequately deal with. I am satisfied that the Learned judge was in error in finding that the bus driver was solely to blame for the collision. I am of the opinion that the deceased was partly responsible for the collision and that he was to some extent negligent.In my opinion the bus driver was negligent. On his own evidence he was perhaps not keeping a proper look out and he was certainly driving too fast between the two bus stops.
Indeed Mr. Guram for the appellant conceded that the bus driver was negligent. However, en the evidence it is difficult to say who was the more negligent, the bus driver or the deceased. I am however, satisfied that both were negligent. In the circumstances I think the fairest way would be for me to apportion the blame equally between them.
I therefore find that the deceased and the bus driver were equally negligent. I would allow the appeal and reduce the amount of damages awarded to which was not appealed, to half, that is to Shs 18,580/-. I would leave the apportionment between the widow and the children undisturbed.
I would also leave undisturbed the order for costs and interest in the High Court.
I would allow the appellant half the costs of the appeal.
I have had the advantage of reading the judgment prepared by Mustafa, J.A. with which I am in full agreement. As however we are differing to some extent from the judge below, I will make a few observations of my own, As regards the application of res ipsa loquitur to road accidents, it is my opinion that no presumption of negligence arises against any person involved in a collision between moving vehicles, or between a moving vehicle and a pedestrian, when actually on a highway.
Such cases should be tried in the light of the allegations of negligence raised by the parties. The position may be different when a vehicle leaves the highway, or is on a part of the highway where it has no business to be and no explanation is put forward at any time by the driver, which was not the case here. The other matter I must refer to is the unchallenged evidence given by the police pathologist, to the effect that the deceased had absorbed the equivalent of 18 whiskies. In the case of a person unused to drinking - as the deceased allegedly was - this would involve, in the words of the pathologist, "lying on the floor".
The only consideration given by the learned trial judge to this evidence was his remark that it left him satisfied. With respect, the relevance of this evidence goes much further than that. It lends support to the bus-driver's evidence that the deceased "as crossing the road in an erratic and unsafe manner, staggering back and walking in a zigzag manner, then suddenly running forward when the bus-driver tried to avoid him by passing in front of him.
The pathologist's evidence also casts grave doubt as to the truth of the evidence of the alleged eye-witnesses, especially PW3, who deposed that he spoke to the deceased immediately before the accident, and that he then looked normally, spoke normally, did not smell of liquor, and was walking normally .In my view, on a proper direction on the evidence as a whole, the inference is inseparable that the deceased crossed the road in a grossly negligent manner, due to his highly intoxicated condition. At the same time I agree with the learned judge that the bus-driver's standard of driving in the circumstances fell short of the required standards.
I would allow this appeal to the extent indicated by Mustafa, J.A. and as Lutta, J.A. also agrees there will be an order in the terms proposed by Mustafa, J.A.