A court has overturned an earlier ruling that had partially blamed a tuk-tuk driver for an accident in which his vehicle was hit from behind.
In a judgment delivered at the High Court in Nairobi, the court found that the trial magistrate was wrong to share blame between the two parties and awarded the driver full compensation totalling Sh295,000.
The case began when the tuk-tuk owner sued a publishing company after one of its vehicles collided with his on a city road.
He argued that the accident happened because the other driver was careless and that his tuk-tuk was badly damaged, forcing him off the road.
In his claim before the Small Claims Court, he asked for Sh135,000 to fix the vehicle, Sh840,000 for income lost over 32 months, and Sh10,000 in other expenses, including police and assessor fees.
But the trial court didn’t fully agree with him.
While it awarded Sh135,000 for the repair costs, it ruled that he was 20 per cent to blame for the crash and slashed that amount to Sh108,000.
The court also opposed compensating him for lost income, saying he hadn’t provided strong proof of his earnings.
Unhappy with the decision, he went to the High Court to appeal.
He argued that he had been wrongly blamed for the accident, and that the evidence showed the other driver had hit him from behind.
The owner also insisted that while he did not have formal income records, he had shared mobile money and bank deposit slips to support his case.
His tuk-tuk, he said, was his only source of livelihood.
“I was hit from behind. I couldn't have avoided it,” he argued, adding that the trial court was wrong to say he had contributed to the accident.
The respondents, on their part, had opposed the appeal, arguing that the original decision was sound and should stand.
They said the tuktuk owner failed to prove that the other driver was entirely at fault and that he hadn’t shown what steps he took to avoid the crash.
They also challenged the claim for income loss, saying the bank and SACCO slips were unclear and did not prove actual earnings.
However, Justice Asenath Ongeri, who handled the appeal, opposed these arguments.
In her judgment, she said there was no legal reason to blame the tuktuk driver for what happened.
She noted that under Kenyan law, the driver who hits another vehicle from behind is usually considered to be at fault, unless they can prove otherwise.
“The general principle in negligence cases is that a driver who rams into another vehicle from behind is presumed negligent unless proved otherwise (Karanja v Malele [1983] eKLR,” she noted.
“In this case, the trial court had no basis for holding that the appellant contributed to the accident. The trial court’s apportionment is accordingly set aside as the same is without basis. That said, given the nature of rear-end collisions, the respondent is held 100 per cent liable in negligence.”
The ruling meant the earlier 20 per cent cut on the repair damages was removed, reinstating the full Sh135,000 award.
The judge also took a different view on the issue of lost income.
While she agreed that special damages like income loss must be proven, she said courts must be flexible and reasonable, especially when dealing with people in informal jobs who may not have payslips or formal business records.
“The trial court’s outright dismissal of this claim was overly restrictive,” she noted.
“A reasonable estimate can be made using minimum wage guidelines.”
The tuktuk owner had claimed 32 months of lost earnings, but the judge said that was too long.
She pointed out that the vehicle could have been repaired or replaced sooner, and awarded compensation for a shorter 10-month period.
Using the minimum wage for drivers, Sh15,000 per month, she awarded him Sh150,000 for loss of earnings.
The High Court also faulted the trial magistrate for ignoring proof that the driver had paid Sh10,000 for police and assessor attendance.
“The receipts were on record and the amount should have been awarded,” the judge said.
In total, the court awarded him Sh295,000—made up of Sh135,000 for repair costs, Sh150,000 for lost income, and Sh10,000 for special damages.
Interest will apply from the date he filed the original case, and he was also awarded the costs of the appeal.
In closing, Justice Ongeri stated that while the Small Claims Court handles simple cases, it must still apply the law correctly.
“Where a trial court
misapplies the law in assessing evidence or damages, an appeal is valid,” Justice
Ongeri ruled.
