The High Court in Kiambu has reduced a multi-million shilling award after finding a passenger partly responsible for his fatal fall.
Dennis Mwenda, a National Youth Service worker, died after falling from an open pickup truck driven by Simon Migwi Mutua along Kiambu Road.
Mwenda and his colleagues were running late for work when they flagged down the truck, which was not a passenger service vehicle.
“The first appellant [Mutua] agreed to give the group a lift. One of the passengers (DW2) sat at the front cabin with the diver,” court documents show.
Mutua testified that the pickup was travelling at about 10 kilometres per hour in the heavy morning traffic on Kiambu Road.
As the driver bypassed a stationary car that had been pulled over by a traffic officer, the deceased—who was sitting on the edge of the vehicle—lost his balance and tumbled onto the road.
Other passengers alerted the driver by banging on the vehicle, prompting him to halt immediately and rush the injured man to Kiambu District Hospital.
The personal representative to Mwenda's estate, Purity Ntinyari Kirera, sued the driver and the Alpha Mercantile Limited.
The respondent noted that the testifying police officer confirmed the details of the fatal accident, explaining that the deceased was thrown from the moving vehicle and landed on the tarmac.
“As the driver of the motor vehicle, the first appellant ought to have been careful noting he was ferrying passengers on the back of his pick-up,” the court heard.
“Under the circumstances common sense and basic driving principles dictate that an attempt to overtake a vehicle under active police interception requires sudden acceleration and an unheralded, abrupt swerve to prevent being stopped along with it.”
Kirera further argued that the first appellant's own testimony as the driver backed up his account of how the incident occurred.
The magistrate's court found the appellants 100 per cent liable for the accident, awarding a total of Sh3,901,600 in 2023.
Aggrieved, the driver and company launched an appeal.
“The appellants maintained before the trial court that the deceased was the sole author of his own misfortune by disregarding the driver’s express safety instructions and exposing himself to obvious and foreseeable danger,” court documents show.
“The evidence of the defence witnesses was consistent and uncontroverted, that the deceased voluntarily boarded an open pick-up truck that was not a passenger service vehicle, was expressly instructed to sit on the floor and instead chose to sit on the edge of the vehicle.”
Seeking a total reversal of the lower court's decision, they asked that the judgment be set aside.
However, High Court Judge Kennedy Kandet found no factual evidence in the lower court records to support the claim that the driver executed a reckless manoeuvre to evade law enforcement officers.
The judge observed that the deceased voluntarily chose to travel in an inherently dangerous position on a non-passenger vehicle, which legally constituted a significant degree of contributory negligence.
Nevertheless, the court noted that the driver still bore a duty of care to those on board, leading to a split liability.
Kandet set aside the absolute liability, holding the deceased 70 per cent responsible and the driver 30 per cent liable.
The court also scaled down unproven special damages to Sh90,360 for verified burial expenses, with the final net balance payable to the estate reduced to Sh2,702,252.
