The Court of Appeal in Mombasa has awarded Sh5.1 million to a transporter whose truck sank into the Indian Ocean at the Likoni crossing channel.

The truck plunged into the ocean on March 16, 2005, at Likoni Ferry Mainland Ramp after the coxswain of MV Harambee moved it before the lorry was on board.

The truck owner, David Kiiru, sued Kenya Ferry Services and Kenya Ports Authority (KPA), terming the coxswain’s decision as careless and negligent.

Kiiru blamed the KFS coxswain for the accident, claiming that he caused the ferry to move away from the ramp before the lorry successfully boarded the ferry.

He filed the case at Mombasa High Court, demanding sh333.3m. However, Justice Denis Kizito dismissed the claim, forcing Kiiru to appeal.

In a ruling that could set a precedent for any victims of ferry services, the appellate court awarded Kiiru Sh5.2 million for the damage.

Justices Agnes Murgor, Kibuya Laibuta and Grace Macharia said the driver, the coxswain and the ramp controller were all to blame for the accident.

“We are left with no doubt that to some extent, the tripartite parties involved, these being the appellant’s (Kiiru) driver and vehicle, the coxswain and the ramp controller, were all to blame in one way or the other to some degree for the occurrence of the accident,” said Justice Murgor.

The judges held that the coxswain and the ramp controller had a duty to ensure passengers and the vehicles properly boarded the ferry before sailing off.

“In the end, we find and hold that the appeal partly succeeds on the issue of quantum and liability. The decision of the learnt Judge (Kizito, J.) dated and delivered on June 22, 2023, is hereby set aside and substituted therefore,” said Justice Murgor.

The judges said that the coxswain ought to have waited for clearance from the ramp controller that all was well before starting the journey.

The appellate judges said that by the same token, the driver ought to have possessed sufficient skill to enable him to manoeuvre the heavy-laden lorry onto the ferry, which in turn should have boarded the ferry effortlessly.

The appellate court said after failed attempts to drive the lorry into the ferry, the driver was instructed by the coxswain and the ramp controllers to reverse the lorry.

He was then instructed to drive into the ferry at high speed, hoping that all the axles would get onto the ferry.

“The appellant’s claim was founded on the fact that the respondents (KFS) prematurely allowed the ferry to set off before the lorry was fully boarded, causing the accident. This is the basis on which the appellant (Kiiru) apportions negligence on the part of the coxswain for which he holds the respondents accountable,” said Justice Murgor.

The court set aside the award of Sh600,000 as costs in favour of KFS and directed that parties be at liberty to pursue taxation of such costs by the Taxing Officer.

Kiiru demanded special damages of Sh333.3 million.

Kiiru said he jointly owned the lorry with Stanbic Bank, which financed him when he purchased the engine at sh5,000,000 and the trailer at sh3,000,000, making the total cost sh8,000,000.

Justice Kizito dismissed the claim for general damages of Sh310,181,256 and general damages for breach of duty and care of Sh2,000,000, all totalling Sh312,181,256.

He also declined the claims of loss of loan fees of Sh64,000, insurance cover of Sh4,840,066, costs for recovering and assessment of Sh9,000, and mileage cost of Sh30,912, which were found to be remote and without a causal link to the accident.

KFS said that the driver was wholly to blame because he did not have sufficient skill to drive a heavy commercial lorry onto the ferry. It also said the driver failed to heed and follow the coxswain’s directions, orders and requests.