Lodick Kisamo – (Administrator of the Estate of Gilbert Andrew Kisamo Deceased – and Mrs. Ndewiriomo G.A. Kisamo v. Onaufoo Kundaeli, Civ. Case 11-A-1967, 4/6/69, Platt J.

Lodick Kisamo – (Administrator of the Estate of Gilbert Andrew Kisamo Deceased – and Mrs. Ndewiriomo G.A. Kisamo v. Onaufoo Kundaeli, Civ. Case 11-A-1967, 4/6/69, Platt J.

This case arose out of an accident involving a lorry and a car driven respectively by the defendant and the deceased, who died as a result of the accident. The suit was originally filed by the administrator of the estate of the deceased. In the amended plaint Mrs. Kisamo, the deceased’s widow, was added as second plaintiff. However, by virtue of the terms of Section 4(1) Law Reform (Fatal accident and Miscellaneous Provision) Ordinance Cap. 360, the suit had to be brought in the name of either of them but not both. The administrator withdrew his sit leaving the deceased’s widow to sue on behalf of herself and the other dependants for general damage. It was agreed by the parties that the court should be invited to confine itself to the issues of liability alone, it being said that the quantum of damages will be settled by the parties, without of course, precluding the right of appeal against the findings of liability by the court.

Held: (1) “The issues of fact are not entirely easy to resolve on the evidence before the court, although the accident was, in one sense, relatively simple. It occurred at the junction of the main tarmac road with an earthen road of access leading from a bar ….. The difficult part of the case consists in deciding where at the junction of the access road with the main road, the collision occurred. Putting the issue shortly, for the defendant it was claimed that the deceased drove out of the access road on to the main road, thus cutting across the defendant’s path in such a way that the defendant was unable to avoid the accident; while for the deceased it was alleged by a bystander, the witness Boyd (P.W. 3), that the deceased had crossed over the main road and was going up the hill towards the Trade school when the lorry collided with him…….. The junction lay in a rural belt of country sporadically inhabited, with a tall stand of maize on either side of the main road behind shrubbery acting as a sort of hedge between the edge of the maize and the murrum shoulder or verge of the road …. Although the access road did not lead abruptly on to the main road but funneled out near that road fairly broadly where the roads joined might be described as an informal junction of a very minor road, not a great deal better than a track, with an important tarmac though fare, in a rural area. I need hardly say that there were no traffic signs placed at the junction to guide motorists and there was but a small private sign saying “Peter’s Bar”. The Junction is not lighted. There is nothing to warn the driver of a vehicle coming from Moshi, of the presence of the access road; indeed even the bar sign would have to be looked for rather carefully ….. Furthermore, because of the acute angle between the access road and the main road from Moshi, it would be very difficult to see a car approaching the junction from the access road, until it was in the funnel and almost upon the main road. In these circumstances, there can be no doubt that in general, a driver from Moshi would have the right of way and a driver turning from the access road to Moshi, must certainly stop  before crossing the line of traffic coming from his right. That must be so because not only would the driver from the access road be joining the main road, but because of the slope up to the main road and the vegetation clouding his vision. What has been said so far pertains largely to the situation in which drivers would find themselves during daylight. Now I turn to the situation which confronted the parties at 8.30 p.m. on the fatal day ….. The major point made by the parties, concerned

the lights operated by the two drivers. For the plaintiff, it was argued that the defendant ought to have seen the lights of the Volkswagen and therefrom to have been aware of its approach; but the defendant denied seeing any lights until the Volkswagen came onto the main road. Speaking generally, I think, the Volkswagen a notoriously small car, would have been entirely hidden by the maize and shrubbery from the defendant’s view ……… it seems clear that as the Volkswagen was driven down the access road pointing away from the defendant’s vehicle, the car and its lights would not be seen until it was in the funnel of the access road. One must also bear in mind that the lights of the Volkswagen, shining at a level lower than that of the main road, would be further obscured. I cannot say, therefore, that I can disagree with the defendant’s evidence that he did not see the Volkswagen’s lights through the bushes and trees nor thrown across the main road ….. It comes to this that until the deceased had driven his car on to the incline of the funnel turning round towards Moshi …….. The defendant would not have any proper indication that the deceased was about to cross his (the defendant’s) path.” (2) “If that is so, then as I have said it was the clear duty of the deceased to stop and allow other traffic on the road to pass by before crossing the road. But of course, if the defendant became aware of the deceade’s car joining the road at such a time that the defendant himself could slow down and allow the deceased to drive on to the main road, the defendant had no right to insist on his right of way. I was referred to various authorities illustrating the principles involved in a situation such as this, the most important being ZARINA A. SHARIFF v. NOSHIR P. SETHNA & OTHERS (1963) E.A. 239 (C.A.) where the law was exhaustedly examined. Although the facts in Zarina’s case are not at all similar to those in the present case, nevertheless, I accept with respect the principle adopted, namely that driver on a major road has always the duty to keep a proper lookout for traffic approaching the main road from a minor road and that he cannot assume that traffic from the minor road will necessarily act in accordance with the law and so give way. But I find a more useful example of the situation which faces me in the instant case in USHA v. BACHUBHAI AND OTHER (1965) E.A. 433 (C.A.) where the facts relate to the junction in a rural area. There it was held that the driver on the major road in that case was under no duty to stop or slow down or keep a particular lookout for traffic on the minor road because on the evidence he did not know of the existence of the junction and had no reason to know of it. the river on the major road was under no duty to anticipate the reckless driving of the driver coming from the minor road since the former could not have been expected to e aware of the danger until he was so close as to make it impossible for him to avoid the accident. The position between the two points of view seems to me to have been authoritatively summed up by Newbold, J.A. (as he then was) in Zarina’s case when he said “It is the duty of every driver to guard against the possibility of any danger which is reasonably apparent, but it is not his duty to proceed in such a way that he could avoid an accident to matter how reckless the other party may be.” This dictum was approved in Ushas case, and with respect, I think it is a pertinent test to apply in the instant case. Whether the defendant was sufficiently aware of the Volkswagen car, determines his liability, for otherwise he could not have been expected to guard against the danger of the deceased turning into the main road from a position in which he could not be seen by the defendant. To a large extent, the answer to this question would be governed by the point of collision on the main road.” (3) On the balance of  

probabilities, the defendant’s version must be accepted, that collision occurred as the deceased drove out of the access road on to the main road, cutting across his path so that he could not avoid an accident. (4) “In the result therefore I find that the defendant could not have been aware of the presence of the car being driven away from the bar and down the access road. I do not think that the position of the deceased’s car at the edge of the road gave sufficient warning to the defendant as the deceased crossed the road the defendant could not stop to avoid the accident. Therefore, I hold that the deceased was entirely to blame.” …. (5) Plain dismissed.