A lorry remains in the ocean four days after it failed its breaks and plunged into the sea water at the Likoni Ferry mainland, December 18, 2012. The lorry, which was disembarking from one of the ferries, failed its brakes and overturned into the sea. Efforts by Kenya Ferry Services and the owner of the truck to retrieve it from the sea have been unsuccessful for the past four days.
A businessman whose lorry plunged into the Indian Ocean almost 15 years ago while crossing the Likoni channel through the ferry has been awarded Sh6.1 million as compensation for general and special damages.
The Court of Appeal ruled that the ferry coxswain and ramp controller had a duty to ensure that the ferry was properly boarded by passengers and vehicles at all times before sailing off.
Daniel Kiiru trading as Kinamba General Suppliers & Transport had sued Kenya Ferry Services and Kenya Ports Authority (KPA) which was represented by lawyer Farida Jadi.
He claimed that the respondents prematurely allowed the ferry to set off before his lorry was fully boarded, thereby causing the accident.
The High Court had dismissed the claim by Mr Kiiru, prompting him to file an appeal at the Court of Appeal.
In its April 11 judgment, the Court of Appeal ruled that to some extent, the parties, being the appellant’s driver and the vehicle, the coxswain and ramp controller, were all to blame in one way or the other to some degree for the occurrence of the accident.
Ferry users alight from MV Nyayo at Likoni on October 26, 2015.
Appellate judges Agnes Murgor, Kibaya Laibuta and Grace Ngenye-Macharia ruled that the coxswain ought to have waited for clearance from the ramp controller that all was well before starting the journey.
“The appellants’ driver ought to have possessed sufficient skill to enable him to manoeuvre the heavily laden lorry onto the ferry, which in turn should have boarded the ferry effortlessly,” ruled the judges.
The Court of Appeal noted that the evidence of a defence witness was that he heard communication between the lorry driver and the then coxswain over radio communication.
This, the Court of Appeal said, pointed to the fact that there was means of communication available between the parties to enable the coxswain to know that the ferry was ready for take-off.
“The coxswain was not to proceed on assumptions; there was no evidence produced to show that the coxswain was not aware that the appellant's driver had been making attempts to board the ferry,” ruled the Court of Appeal.
The Court of Appeal also noted that there was a likelihood that the lorry was experiencing some mechanical problems, bearing in mind and taking judicial notice of the fact that in order to board the ferry, vehicles ordinarily drive downhill and the movement would no doubt have made it easier for the lorry to board.
“Instead, after several attempts, some axles could not get onto the ferry; this failure must certainly have been occasioned by a hitch in the lorry,” ruled Justices Murgor, Laibuta and Ngenye-Macharia.
The judges departed from the findings of the High Court that the respondents (KFS and KPA) were not to be blamed at all for the accident.
“It is our finding that both the appellant and the respondents played a part in the occurrence of the accident; we find it appropriate to apportion liability at the ratio of 70:30 in favour of the appellant,” ruled the Court of Appeal.
The Court of Appeal further ruled that although the appellant was compensated by insurance for spare parts and repairs, he was entitled to compensation from the respondents for the money expended on spare parts and repairs.
The appellant had told the court that on March 16, 2005, at around 6 am at the Likoni Mainland ramp, his driver was driving the lorry onto the ferry destined to Mombasa Island and that the coxswain negligently and carelessly started the ferry before the lorry was fully on board leading it to plunge into the ocean.
KPA, through Ms Jadi and KF,S opposed the appeal, saying that it lacked merit and ought to be dismissed with costs.
They argued that the appellant failed to prove all special damages and particulars; he was duly compensated for the accident and should not be allowed to unjustly enrich himself.
pmuyanga@ke.nationmedia.com
