MUSTAFA, J.A.

On 6^th 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 8^th 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
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.

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 [1971] E.A. 82 where Spry, Ag. P. said:

Fortunately the learned trial judge also said:-

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:

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.

LAW, JA

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.

LUTTA, JA.

I agree.