High Court judge David Majanja has dismissed a court case filed against a bus company by a passenger who was onboard when the bus was attacked.
In the April 5 ruling, the judge emphasised that it was not the company's fault that the passenger was robbed and assaulted by the armed men while leaving Mombasa heading to Nairobi.
According to the judge, there was little the bus company could have done about the attack since it was not foreseeable. Justice Majanja added that such incidents had not occurred before to force the bus company to take precautionary measures.
"I agree that the hijacking incident that led to the Appellant’s injuries was not due to lack of precautionary measures but an unfortunate misfortune that could still have occurred even with the best precautions," the judge added.
Furthermore, Justice Majanja noted that the bus only stopped at designated stops and not where the attack occurred therefore clearing the company of any responsibility for the attack.
According to the court documents, the passenger boarded the vehicle at night on July 30, 2011, from Mombasa to Nairobi. The bus was however hijacked by armed men at Makindu and all passengers were assaulted and roughed up.
Per the victim, the thugs came in a speeding saloon car armed with guns and blocked the bus before forcefully entering the vehicle.
She argued that during the attack she was exposed to untold anguish and suffered injuries including head bruises, and neck bruises. She further argued that the bus company was responsible for the attack and sought general and special damages.
"She reiterated that the Respondent was liable for negligence and/or breach of contract in so far as its driver stopped to carry passengers at points other than the designated ones at Voi and Mtito Andei thereby and in the prevailing circumstances compromising the safety of the passengers," read part of the court documents.
In response, the company argued that the thugs wholly caused the injuries and assault and that the organisation had no control to prevent it.
The company dismissed claims that the attack was a result of negligence or failure to exercise caution and safety on its part. It therefore asked the court to dismiss the appeal.
Despite the victim's argument and evidence, the court has ruled in favour of the bus company. Justice Majanja added that the victim could have been awarded Ksh800,000 if the appeal had merit.
