Background
1. The Pascal Osikuku Esike who is now the 1st Respondent in this appeal was the Plaintiff t in the Magistrates court at Milimani where his claim was for general and special damages arising from personal injuries suffered by him as a result of an accident that was allegedly caused by the negligence of the Appellant and or his authorized driver.
2. In the Trial Court, both Respondent’s defended the suit. The Appellant filed his statement of defence dated 24th November 2015 while the 2nd Respondent filed their statement of defence dated 24th Feb 2016. Both Respondent’s denied the occurrence of the accident and the particulars of negligence pleaded against them. The suit was heard and finally determined in the year 2024 after a protracted hearing for nine (9) years. The learned trial magistrate in his Judgement dated 17/9/ 2024 dismissed the claim against Nairobi water & Sewage Company limited the 2nd Respondent, but found the Appellant herein fully liable for the accident and injuries sustained. He proceeded and awarded both general and special damages assessed at Kshs 600,000/= and Kshs 2000/= respectively.
3. The gist of judgement from the trial court is anchored on the principle of vicarious liability at paragraphs 7 and 8 of the plaint as follows:
“7. On or about the 6th May 2015 while the plaintiff was offloading manholes from the truck of the 1st defendant the manholes slipped and fell on his left floor and as a result, he sustained a fracture of the left distal tibia and fibula.
“8 The said accident was caused by negligence or breach of contract or statue by the Defendant, its employee/s servant or agents.
Particulars of 1st Defendant’s Negligence (Appellant herein)
a) Subjecting the plaintiff to a risk of bodily injuries they knew or ought to have known
b) Failed to have due regards for the Plaintiff safety.
c) Failed to provide safe means of work or a safe place of work
d) Failed to warn the plaintiff in time and or at all.
e) Failed to provide the plaintiff with protective wears.
f) Failed to provide reasonable working space
Particulars of Injuries
1. Fracture of the left distal tibia and fibula
Particulars of special damages
Medical report for Dr. Okere……..Kshs 1500
4. In their defence, were denials that did not make any specific reference to various liability but only specifically denied the occurrence of an accident and the allegations of negligence. They further denied the existence of any term of contract of employment implied or otherwise.
The Appeal.
5. Being aggrieved by the judgement of the learned trial court, the Appellant lodged this appeal challenging the entire judgement of the trial court on several grounds below:
1. The Learned Honorable Trial Magistrate erred in both fact and law when he made findings that the 1st Respondent (Original Plaintiff) had proved his case to the required standard, and or had discharged his burden of proof as against the Appellant, and thereby entered judgement against the Appellant.
2. That the Learned Honorable Trial Magistrate, erred both in fact and law when he failed to appreciate and uphold the Appellant’s defence, more so as regards the effect that it had no contractual employment relationship, either directly or indirectly with the 1st Respondent.
3. The learned Honorable Trial Magistrate erred in both and fact and law when he made findings that the Appellant was 100% vicariously liable for negligence, whilst at the material time of the accident, the 1st Respondent was not an employee of the Appellant and therefore no liability would arise at all.
4. The learned Honorable trial magistrate, erred in both fact and law in failing to appreciate that no liability and or/ vicarious liability could lie as against the Appellant, as it was not the legal owner of motor vehicle Registration Number KAS 306, that the 1st Respondent alleges that he was offloading manholes from at the material times of the incident giving rise to this claim.
Indeed, the motor vehicle registration number KAS 306, was executing the contract o delivery, as an independent contractor and not in employment of the Appellant.
5. The Learned Honorable Trial Magistrate, erred in both fact and law when he found the claim by the Respondent as proved, whilst there was no evidence sufficiently or any evidence to support the finding against the Appellant in favour of the 1st Respondent.
6. In the alternative and without prejudice to the above, and whereas liability is fully denied, the trial court erred in both law and fact when it assessed the damages and awarded the sum it awarded, which damages, were inordinately high compared to injuries, damage caused.
7. The learned Honorable trial Magistrate erred in both facts and law when he failed to find that the 1st Respondent was guilty of negligence and or/ substantially contributed to the negligence that caused him to be injured and or to suffer the injuries, loss and damage contrary to the evidence on record.
8. Consequently, the Appellant in their memorandum of appeal dated 29th November 2024 prays that this Honorable Court do:
a) Evaluate, review the proceedings, pleadings, evidence on record for each claim and make findings approving their defence and evidence as prayed in their defence.
b) Evaluate, review proceedings, pleadings, evidence and set aside the finding and judgement entered against them.
c) Judgement entered to be set aside with an order for dismissal of the 1st Respondent’s suit with costs at the Chief Magistrate’s court and in this Court.
d) Costs of the appeal and of the Chief Magistrate’s court and interest thereon be awarded to the Appellant.
The Submissions
6. The appeal was canvassed by way of written submission filed by Appellant and the 1st Respondent which this court has duly considered. The 2nd Respondent did not file written submissions.
7. The Appellant in their supplementary submissions denied the existence of any contract of service between the Appellant and 1st Respondent, citing section 9 of the Employment Act that the 1st Respondent was contracted and paid by a sub-contractor and not the Appellant. They also submitted on the doctrine of privy of contract, where they relied on the position held in the case of Dunlop Pneumatic Tyre Co. Ltd vs Selfridge & Co. Ltd [1915] AC 847 and the Court of Appeal case of Savings & Loan (K) Ltd vs Kanyenje Karangaita Gakombe &Another [2015] EKLR. In both decisions the courts held that a third party to a contract cannot benefit from a contract his is not privy to. They also submitted that there was no agency or implied authority between the Appellant and the independent relying on the decided case of Mwathi vs Kewal contactors Limited & Another [2022] KEELRC 23 (KLR). Finally the Appellant submitted that the 1st Respondent owed the duty to sue the correct party.
8. The 1st Respondent through his counsel, in their submissions raised two issues for determination as follows;
a) Whether the trial court erred in finding the Appellant vicariously liable for the injuries sustained by Him.
b) Whether the trial court erred in failing to find contributory negligence and in awarding excessive damages.
9. In addressing the above issues, on whether the trial court erred in finding the Appellant vicariously liable for the injuries sustained by the 1st Respondent, Counsel relied on the Court of appeal decision in Paul Mithui Mwavu v Whitestone (K) Ltd [2015] KECA 745(KLR) and the Nuthu case, where in courts restated the guiding principles on vicarious liability. He also relied on sections 2 and 8 of the employment Act. Counsel submitted that the Appellant did not deny that it had a contract to supply manhole slabs nor despite the ownership of the motor vehicle registration no. KAS that was used to deliver the supplies. He further submitted that the Appellant directed the transaction, deployed the vehicle, engaged the labourers and directly benefited from the service. The 1st Respond submitted that the trial court’s finding on vicarious liability was not only sound in law but also grounded in uncontroverted facts.
10. On the second issue, on whether the trial court erred in failing to find contributory negligence and in awarding excessive damages. Counsel highlighted section 107 and 109 of the Evidence Act, which requires that whoever alleges must prove. The Appellant having alleged contributory negligence on the part of the 1st Respondent, bore the burden of proving it, a burden they failed to discharge. Counsel further submitted that the Appellant failed to adduce any substantive evidence to rebut the 1st Respondent’s account on how he sustained his injuries on the material date. Relying further on section 108 of the evidence Act, on damages, counsel submitted that the trial court’s assessment was properly guided by the nature and extent of the injuries suffered as we as comparable case law. They urged this court to affirm the judgement of the trial court in its entirety.
Analysis and determination
11. As this is a first appeal, I am aware of the courts duty as outlined by the court of Appeal in the case of Kenya Ports Authority Versus Kisthan (Kenya) Limited (2000) 2EA 212, where the court of Appeal held intera-lia that-
“On first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind it has neither seen or heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
12. I have considered, the pleadings, evidence adduced, the grounds of appeal and the rival submissions against the law. Three issues arise for determination in this matter. First whether there existed an employment contract between the Appellant and the 1st Respondent. Second whether the Appellant is vicariously liable for the injuries sustained to the 1st Respondent. Third, if liability is established what damages is the 1st Respondent entitled to recover.
13. Before analyzing discussing the issues at hand, I wish to first consider the question on the burden of proof on the party who alleges. Sections 107 to 109 of the Evidence Act Cap 80 Laws of Kenya clearly outlines the principle.
“Section 107.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
14. These sections place the burden of proof squarely on the party who seeks for a remedy before the Court. This principle is the cornerstone of our legal system that protects individuals from being wrongfully liable for what they did not commit based on insufficient evidence.
15. As was held in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334,
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in Sections 109 and 112 of the Act."
16. It follows that the general rule is that the initial burden of proof lies on the Plaintiff being the 1st Respondent in this appeal, but the same may shift to the Respondent depending on the circumstances of the case. This was outlined in the persuasive case of Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast upon any party, the burden of proving any particular fact which he desires the Court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side."
17. Kimaru J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 explained this standard in practical terms when he stated that:
“ In ordinary civil cases, a case may be determined in favour of a party who persuades the Court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred."
18. The standard of proof in civil cases is proof on a balance of probabilities, as clearly demonstrated in the above case. The question therefore is not whether the Court is assured about what happened, but whether the party bearing the burden has persuaded the Court that their version of events is more likely than not to be true.
19. In the present appeal the 1st Respondent alleged that whilst in employment of the Appellant on the 6th May 2015, offloading manholes from the truck owned by the Appellant, a manhole slipped and fell on his foot and as a result he sustained a facture of the left distal tibia and fibula. The burden squarely rested on his shoulders to prove, on a balance of probabilities, the essential elements of his claim. After the hearing, the learned trial magistrate found that he had proved his case and entered judgement in his favour. The Appellant being aggrieved by the said judgement filed this appeal.
20. In the 1st Respondent’s evidence as pleaded and presented, reveals the fact that he knew that one Mr. Jackson Ndegwa Kamau was an employee of the Appellant. He further stated that the Appellant did not have employees to offload the truck during delivery and it was usual that they would use them to offload the manholes.
21. In defence, the Appellant contended that the driver of the motor vehicle used to deliver the manholes was the one in-charge of loading and offloading the manholes to the 2nd Respondents. Through their witness, they confirmed that they had a contract to supply manholes to the 2nd Respondent and that the work of Mr. Jackson Ndegwa Kamau who was employed as a messenger in their company was to confirm that the goods had been delivered and on that particular day he had taken his delivery book to be signed. He further averred that they used the services of the Motor vehicle Registration number KAS 306G, which was loaded in their yard. Mr. Jackson confirmed that he was aware that the 1st Respondent had been injured while offloading the manholes. The Appellant apportioned the blame on the truck driver and not them.
22. In goes therefore that, the issue herein between the Appellant and the 1st Respondent focus on the doctrine of vicarious liability which is also the 2nd issue for determination herein. It is imperative for the 1st Respondent to establish that there existed a relationship between the driver of the truck and Appellant as their agents or employee. Citing the case of Bunei v County Government of Uasin Gishu & 2 others (Civil Case E012 of 2024) [2025] KEHC 15004 (KLR) (23 October 2025) by of RN Nyakundi J. at paragraph 56.
56. “In order that the doctrine of vicarious liability may apply, there are two conditions which must co-exist:
(a) The relationship of master and servant must exist between the Defendant and the person committing the wrong complained of;
(b) The servant must in committing the wrong have been acting in the course of his employment.
“Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming observed that this formula represented "a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible Defendant; on the other, a hesitation to foist any undue burden on business enterprise": The Law of Torts, 9th ed (1998), pp 409-410. (per Lord Steyn, Lister v Hesley v Hall [2002] 1 A.C. 215 at paragraph 14.”)
The expression vicarious liability signifies the liability which A may incur to C for damage caused to C by the negligence or other tort of B. It is not necessary that A shall have participated in anyway in the commission of the tort nor that a duty owed in law by A to C shall have been broken. What is required is that A should stand in a particular relationship to B and that B’s tort should be referable in a certain manner to that relationship. The commonest instance of this in modern law is that liability of a master for the torts of his servants done in the course of their employment. The relationship required is the specific one of master and servant and the tort must be referable to that relationship in the sense that it must have been committed by the servant in the course of his employment. The learned authors Salmond & Heuston on the Law if Tort, 19th ed. (1982) p.510 delved into this issue of vicarious liability by denning the definition of dimension of an employee as any person employed by another to do work for him on the terms that he, the servant is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. It must follow that an employee is one who is bound to obey any lawful orders given by the employer as to the manner in which his work shall be done. The employer retains the power of controlling him in his work, and may direct not only what he shall do, but how he shall do it. Whether the job is assigned daily or by task is of no moment.” There is a presumption in law that for a servant or an employee to be held culpable for the acts of omission and commission this criteria must be met. “A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorized by the master, or (2) a wrongful and unauthorized mode of doing some authorized by the master. (See Ilkiw v Samuels [1963] 1 W.L.R. 991). But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as modes – although improper modes-of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it. If a servant does negligently that which he was authorized to do carefully, or if he does fraudulently that which he was authorized to do honestly, or if he does mistakenly that which he was authorized to do correctly, his master will answer for that negligence, fraud or mistake. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it. This was also emphasized by a learned authors of Charles worth 2 Percy on Negligence who stated that “In determining whether or not an employee’s wrongful act is done in the course of his employment, it is necessary that a broad view of all the surrounding circumstances should be taken a whole and not restricted to the particular act which causes the damage. There is no simple test which can be applied to cover every set of circumstances, so that it remains essentially a question of facts for decision in each case.” (See Charles worth & Percy on Negligence, 10th ed. (2001), p 136 citing Fennimore, J in station v N.C.B (1957) 1 W.K.R 893 at 895)
23. In my analysis. I will consolidate issue no 1and 2 and address them together. From the pleadings in the lower court, it is not in dispute that the 1st Respondent sustained injuries on the 6th May 2015 when offloading manholes from motor vehicle registration number KAS 306G. It is also not disputed that the Appellant had a contract with the 2nd defendant for supply of manholes. Mr. Jackson Ndegwa Kamau the witness who testified for the appellant confirmed that the truck used was loaded at their yard and together with the truck driver they went to deliver the manholes to the 2nd Respondent’s premises. In his testimony he stated that it was always the duty of the truck driver to ensure that the manholes were loaded and offloaded. From his evidence, it was implied that the Appellant was responsible for the injuries as they incurred the injuries in the course of performing work. Additionally, the truck and those managing the truck were employees of the Appellant hence vicariously liable to their actions as their agents. It was the truck driver in this case who employed the 1st Respondent to perform Appellant’s work.
24. The Appellant in their defence denied allegations that there existed any contract of employment between the 1st Respondent and the Appellant. They averred that their employee was one Mr. Jackson Ndegwa Kamau who was employed as a messenger and who at the time of the incident was present at the premises to ensure that the delivery notes are signed by the 2nd Respondents representatives.
25. The question therefore is whether there was any existing contract of employment between the Appellant and the 1st Respondent in this case? Section 2 of the Employment Act defines a
“Contract of service" means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learner ship but does not include a foreign contract of service to which Part XI of this Act applies;
An employer is defined as “employer" means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;
26. From the reading of the definition of contract of service. It is clear there need not to be a written agreement for a contract to be valid. A Valid contract can either be oral or in writing, expressed or implied. Equally, Section 8 of the said Act reinforced the place of both oral and written contracts of employment.
27. At the hearing and in their submission, the Appellant avers that the 1st Respondent has sued the wrong party and that he ought to have pursued the truck driver who was an independent contractor as the only relationship between the motor vehicle was only for executing a delivery on behalf of the Appellant, and that therefore does not confer any agency relationship or confer authority upon the independent contractor.
28. To, this point, and making reference to section 109 of the Evidence Act supra. The Appellant herein while sued by the 1st Respondent, not only denied liability but also introduced a 3rd party, in this case independent contractor who allegedly was the owner of the truck and the driver. At this point the burden of proof shifted to the Appellant to prove the existence of a contract of service between them and the independent contractor who was responsible for the driver as his agent. The Appellant however did not call any witness to support his claim. The Appellant failed to produce any evidence to show the truck belonged to an independent contractor.
29. From the above, I find that the Appellant failed to dislodge the 1st Respondent’s claim, that the Motor vehicle KAS 306G, belonged to them and that the driver was their employee. I find that the 1st Respondent on the other hand proved on a balance of probabilities that at the time of the occurrence of the incident, he had been engaged through oral contract of service as outlined in the Employment Act. He also demonstrated that the Appellant through his own employee one Mr. Jackson Kamau who was in-charge of the said motor vehicle owed the 1st Respondent a duty of care which was breached through the negligence act and omission of its agents. From the proceedings, the 1st Respondent was able to identify the Appellant’s employee as the person who engaged him on numerous occasions to offload manhole slabs, and he was the same person who engaged him on the material date of the accident. I am therefore persuaded that the 1st Respondent on a balance of probability established the existence of an oral contract of service and further demonstrated that the Appellant through its authorized agent exercised control over the 1st Respondent’s engagement.
30. Having established that there was an oral contract of service between the 1st Respondent and the Appellant and that the 1st Respondent was indeed injured a result of the said accident. I concur with findings of the trial court that the Appellant had a contractual or implied statutory duty of care to take reasonable care that the 1st Respondent was not injured. In relying on the Court of Appeal case in Paul Muthui Mwavu v Whitestone (K) Ltd [2015] KECA 745 (KLR) at Paras 24, the learned judges noted;
“24In our view, as long as the driver of the Land Rover was ready and willing to give the passengers a lift; and there being no warning that the driver could not carry passengers; and the driver having the authority to use the vehicle in the performance of a task or duty delegated by the owner of the vehicle; the owner of the vehicle remained liable, and such was the case with the Respondent”.
31. Likewise in the Nuthu case the Court restated the law on vicarious liability adopting the statement of Newbold P in Muwonge vs A.G. of Uganda (1967) EA 17 as follows:
“The law is so long as the driver’s act is committed by him in the course of his duty, even if he is acting deliberately, wantonly, negligently, or criminally, or even if he is acting for his own benefit or even if the act is committed contrary to his general instructions, the master is liable.”
32. In the current case, and having been persuaded that there existence an oral contract of employment between the Appellant and the 1st Respondent. I find it impossible to delink the actions of their agent and or employees who engaged the 1st Respondent. The master must therefore be liable. I therefore find no basis upon which to fault the lower court’s find on liability. I uphold liability at 100% against the Appellant.
33. I will now turn to the third issue, on what damages is the plaintiff entitled to recover if liability is established. The learned trial magistrate having found that the Appellant was 100% vicariously liable for the negligence of his employees and or agents, entered judgement in favour of the 1st Respondent as against the Appellant as follows:
a) General damages – Kshs 600,000
b) Special damages – Kshs 2,000/
Total – Kshs 602,000/=
c) Costs
d) Interest at the court’s rate from the date of filing this suit.
34. The 1st Respondent in their submissions suggested an award on general damages at Kshs 900,000/= The learned trial magistrate however saw it fit to award general damages at Kshs 600,000 and not Kshs 900,000/=.
35. The principles for distributing award of damages as outlined in Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another 1957 KLR 27 as follows: -
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.”
36. This therefore means that for the Appellate court to interfere with the award, it must justify the substitution taking into account the laid down principles, the law and the relevant case laws and not simply because it would have awarded a different figure if it had tried the case at the first instance.
37. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Apollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
38. In this case, the 1st Respondent suffered a fracture of the left distal tibia and
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1. The Pascal Osikuku Esike who is now the 1st Respondent in this appeal was the Plaintiff t in the Magistrates court at Milimani where his claim was for general and special damages arising from personal injuries suffered by him as a result of an accident that was allegedly caused by the negligence of the Appellant and or his authorized driver.
2. In the Trial Court, both Respondent’s defended the suit. The Appellant filed his statement of defence dated 24th November 2015 while the 2nd Respondent filed their statement of defence dated 24th Feb 2016. Both Respondent’s denied the occurrence of the accident and the particulars of negligence pleaded against them. The suit was heard and finally determined in the year 2024 after a protracted hearing for nine (9) years. The learned trial magistrate in his Judgement dated 17/9/ 2024 dismissed the claim against Nairobi water & Sewage Company limited the 2nd Respondent, but found the Appellant herein fully liable for the accident and injuries sustained. He proceeded and awarded both general and special damages assessed at Kshs 600,000/= and Kshs 2000/= respectively.
3. The gist of judgement from the trial court is anchored on the principle of vicarious liability at paragraphs 7 and 8 of the plaint as follows:
“7. On or about the 6th May 2015 while the plaintiff was offloading manholes from the truck of the 1st defendant the manholes slipped and fell on his left floor and as a result, he sustained a fracture of the left distal tibia and fibula.
“8 The said accident was caused by negligence or breach of contract or statue by the Defendant, its employee/s servant or agents.
Particulars of 1st Defendant’s Negligence (Appellant herein)
a) Subjecting the plaintiff to a risk of bodily injuries they knew or ought to have known
b) Failed to have due regards for the Plaintiff safety.
c) Failed to provide safe means of work or a safe place of work
d) Failed to warn the plaintiff in time and or at all.
e) Failed to provide the plaintiff with protective wears.
f) Failed to provide reasonable working space
Particulars of Injuries
1. Fracture of the left distal tibia and fibula
Particulars of special damages
Medical report for Dr. Okere……..Kshs 1500
4. In their defence, were denials that did not make any specific reference to various liability but only specifically denied the occurrence of an accident and the allegations of negligence. They further denied the existence of any term of contract of employment implied or otherwise.
The Appeal.
5. Being aggrieved by the judgement of the learned trial court, the Appellant lodged this appeal challenging the entire judgement of the trial court on several grounds below:
1. The Learned Honorable Trial Magistrate erred in both fact and law when he made findings that the 1st Respondent (Original Plaintiff) had proved his case to the required standard, and or had discharged his burden of proof as against the Appellant, and thereby entered judgement against the Appellant.
2. That the Learned Honorable Trial Magistrate, erred both in fact and law when he failed to appreciate and uphold the Appellant’s defence, more so as regards the effect that it had no contractual employment relationship, either directly or indirectly with the 1st Respondent.
3. The learned Honorable Trial Magistrate erred in both and fact and law when he made findings that the Appellant was 100% vicariously liable for negligence, whilst at the material time of the accident, the 1st Respondent was not an employee of the Appellant and therefore no liability would arise at all.
4. The learned Honorable trial magistrate, erred in both fact and law in failing to appreciate that no liability and or/ vicarious liability could lie as against the Appellant, as it was not the legal owner of motor vehicle Registration Number KAS 306, that the 1st Respondent alleges that he was offloading manholes from at the material times of the incident giving rise to this claim.
Indeed, the motor vehicle registration number KAS 306, was executing the contract o delivery, as an independent contractor and not in employment of the Appellant.
5. The Learned Honorable Trial Magistrate, erred in both fact and law when he found the claim by the Respondent as proved, whilst there was no evidence sufficiently or any evidence to support the finding against the Appellant in favour of the 1st Respondent.
6. In the alternative and without prejudice to the above, and whereas liability is fully denied, the trial court erred in both law and fact when it assessed the damages and awarded the sum it awarded, which damages, were inordinately high compared to injuries, damage caused.
7. The learned Honorable trial Magistrate erred in both facts and law when he failed to find that the 1st Respondent was guilty of negligence and or/ substantially contributed to the negligence that caused him to be injured and or to suffer the injuries, loss and damage contrary to the evidence on record.
8. Consequently, the Appellant in their memorandum of appeal dated 29th November 2024 prays that this Honorable Court do:
a) Evaluate, review the proceedings, pleadings, evidence on record for each claim and make findings approving their defence and evidence as prayed in their defence.
b) Evaluate, review proceedings, pleadings, evidence and set aside the finding and judgement entered against them.
c) Judgement entered to be set aside with an order for dismissal of the 1st Respondent’s suit with costs at the Chief Magistrate’s court and in this Court.
d) Costs of the appeal and of the Chief Magistrate’s court and interest thereon be awarded to the Appellant.
The Submissions
6. The appeal was canvassed by way of written submission filed by Appellant and the 1st Respondent which this court has duly considered. The 2nd Respondent did not file written submissions.
7. The Appellant in their supplementary submissions denied the existence of any contract of service between the Appellant and 1st Respondent, citing section 9 of the Employment Act that the 1st Respondent was contracted and paid by a sub-contractor and not the Appellant. They also submitted on the doctrine of privy of contract, where they relied on the position held in the case of Dunlop Pneumatic Tyre Co. Ltd vs Selfridge & Co. Ltd [1915] AC 847 and the Court of Appeal case of Savings & Loan (K) Ltd vs Kanyenje Karangaita Gakombe &Another [2015] EKLR. In both decisions the courts held that a third party to a contract cannot benefit from a contract his is not privy to. They also submitted that there was no agency or implied authority between the Appellant and the independent relying on the decided case of Mwathi vs Kewal contactors Limited & Another [2022] KEELRC 23 (KLR). Finally the Appellant submitted that the 1st Respondent owed the duty to sue the correct party.
8. The 1st Respondent through his counsel, in their submissions raised two issues for determination as follows;
a) Whether the trial court erred in finding the Appellant vicariously liable for the injuries sustained by Him.
b) Whether the trial court erred in failing to find contributory negligence and in awarding excessive damages.
9. In addressing the above issues, on whether the trial court erred in finding the Appellant vicariously liable for the injuries sustained by the 1st Respondent, Counsel relied on the Court of appeal decision in Paul Mithui Mwavu v Whitestone (K) Ltd [2015] KECA 745(KLR) and the Nuthu case, where in courts restated the guiding principles on vicarious liability. He also relied on sections 2 and 8 of the employment Act. Counsel submitted that the Appellant did not deny that it had a contract to supply manhole slabs nor despite the ownership of the motor vehicle registration no. KAS that was used to deliver the supplies. He further submitted that the Appellant directed the transaction, deployed the vehicle, engaged the labourers and directly benefited from the service. The 1st Respond submitted that the trial court’s finding on vicarious liability was not only sound in law but also grounded in uncontroverted facts.
10. On the second issue, on whether the trial court erred in failing to find contributory negligence and in awarding excessive damages. Counsel highlighted section 107 and 109 of the Evidence Act, which requires that whoever alleges must prove. The Appellant having alleged contributory negligence on the part of the 1st Respondent, bore the burden of proving it, a burden they failed to discharge. Counsel further submitted that the Appellant failed to adduce any substantive evidence to rebut the 1st Respondent’s account on how he sustained his injuries on the material date. Relying further on section 108 of the evidence Act, on damages, counsel submitted that the trial court’s assessment was properly guided by the nature and extent of the injuries suffered as we as comparable case law. They urged this court to affirm the judgement of the trial court in its entirety.
Analysis and determination
11. As this is a first appeal, I am aware of the courts duty as outlined by the court of Appeal in the case of Kenya Ports Authority Versus Kisthan (Kenya) Limited (2000) 2EA 212, where the court of Appeal held intera-lia that-
“On first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind it has neither seen or heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
12. I have considered, the pleadings, evidence adduced, the grounds of appeal and the rival submissions against the law. Three issues arise for determination in this matter. First whether there existed an employment contract between the Appellant and the 1st Respondent. Second whether the Appellant is vicariously liable for the injuries sustained to the 1st Respondent. Third, if liability is established what damages is the 1st Respondent entitled to recover.
13. Before analyzing discussing the issues at hand, I wish to first consider the question on the burden of proof on the party who alleges. Sections 107 to 109 of the Evidence Act Cap 80 Laws of Kenya clearly outlines the principle.
“Section 107.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
14. These sections place the burden of proof squarely on the party who seeks for a remedy before the Court. This principle is the cornerstone of our legal system that protects individuals from being wrongfully liable for what they did not commit based on insufficient evidence.
15. As was held in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334,
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in Sections 109 and 112 of the Act."
16. It follows that the general rule is that the initial burden of proof lies on the Plaintiff being the 1st Respondent in this appeal, but the same may shift to the Respondent depending on the circumstances of the case. This was outlined in the persuasive case of Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast upon any party, the burden of proving any particular fact which he desires the Court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side."
17. Kimaru J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 explained this standard in practical terms when he stated that:
“ In ordinary civil cases, a case may be determined in favour of a party who persuades the Court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred."
18. The standard of proof in civil cases is proof on a balance of probabilities, as clearly demonstrated in the above case. The question therefore is not whether the Court is assured about what happened, but whether the party bearing the burden has persuaded the Court that their version of events is more likely than not to be true.
19. In the present appeal the 1st Respondent alleged that whilst in employment of the Appellant on the 6th May 2015, offloading manholes from the truck owned by the Appellant, a manhole slipped and fell on his foot and as a result he sustained a facture of the left distal tibia and fibula. The burden squarely rested on his shoulders to prove, on a balance of probabilities, the essential elements of his claim. After the hearing, the learned trial magistrate found that he had proved his case and entered judgement in his favour. The Appellant being aggrieved by the said judgement filed this appeal.
20. In the 1st Respondent’s evidence as pleaded and presented, reveals the fact that he knew that one Mr. Jackson Ndegwa Kamau was an employee of the Appellant. He further stated that the Appellant did not have employees to offload the truck during delivery and it was usual that they would use them to offload the manholes.
21. In defence, the Appellant contended that the driver of the motor vehicle used to deliver the manholes was the one in-charge of loading and offloading the manholes to the 2nd Respondents. Through their witness, they confirmed that they had a contract to supply manholes to the 2nd Respondent and that the work of Mr. Jackson Ndegwa Kamau who was employed as a messenger in their company was to confirm that the goods had been delivered and on that particular day he had taken his delivery book to be signed. He further averred that they used the services of the Motor vehicle Registration number KAS 306G, which was loaded in their yard. Mr. Jackson confirmed that he was aware that the 1st Respondent had been injured while offloading the manholes. The Appellant apportioned the blame on the truck driver and not them.
22. In goes therefore that, the issue herein between the Appellant and the 1st Respondent focus on the doctrine of vicarious liability which is also the 2nd issue for determination herein. It is imperative for the 1st Respondent to establish that there existed a relationship between the driver of the truck and Appellant as their agents or employee. Citing the case of Bunei v County Government of Uasin Gishu & 2 others (Civil Case E012 of 2024) [2025] KEHC 15004 (KLR) (23 October 2025) by of RN Nyakundi J. at paragraph 56.
56. “In order that the doctrine of vicarious liability may apply, there are two conditions which must co-exist:
(a) The relationship of master and servant must exist between the Defendant and the person committing the wrong complained of;
(b) The servant must in committing the wrong have been acting in the course of his employment.
“Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming observed that this formula represented "a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible Defendant; on the other, a hesitation to foist any undue burden on business enterprise": The Law of Torts, 9th ed (1998), pp 409-410. (per Lord Steyn, Lister v Hesley v Hall [2002] 1 A.C. 215 at paragraph 14.”)
The expression vicarious liability signifies the liability which A may incur to C for damage caused to C by the negligence or other tort of B. It is not necessary that A shall have participated in anyway in the commission of the tort nor that a duty owed in law by A to C shall have been broken. What is required is that A should stand in a particular relationship to B and that B’s tort should be referable in a certain manner to that relationship. The commonest instance of this in modern law is that liability of a master for the torts of his servants done in the course of their employment. The relationship required is the specific one of master and servant and the tort must be referable to that relationship in the sense that it must have been committed by the servant in the course of his employment. The learned authors Salmond & Heuston on the Law if Tort, 19th ed. (1982) p.510 delved into this issue of vicarious liability by denning the definition of dimension of an employee as any person employed by another to do work for him on the terms that he, the servant is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. It must follow that an employee is one who is bound to obey any lawful orders given by the employer as to the manner in which his work shall be done. The employer retains the power of controlling him in his work, and may direct not only what he shall do, but how he shall do it. Whether the job is assigned daily or by task is of no moment.” There is a presumption in law that for a servant or an employee to be held culpable for the acts of omission and commission this criteria must be met. “A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorized by the master, or (2) a wrongful and unauthorized mode of doing some authorized by the master. (See Ilkiw v Samuels [1963] 1 W.L.R. 991). But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as modes – although improper modes-of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it. If a servant does negligently that which he was authorized to do carefully, or if he does fraudulently that which he was authorized to do honestly, or if he does mistakenly that which he was authorized to do correctly, his master will answer for that negligence, fraud or mistake. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it. This was also emphasized by a learned authors of Charles worth 2 Percy on Negligence who stated that “In determining whether or not an employee’s wrongful act is done in the course of his employment, it is necessary that a broad view of all the surrounding circumstances should be taken a whole and not restricted to the particular act which causes the damage. There is no simple test which can be applied to cover every set of circumstances, so that it remains essentially a question of facts for decision in each case.” (See Charles worth & Percy on Negligence, 10th ed. (2001), p 136 citing Fennimore, J in station v N.C.B (1957) 1 W.K.R 893 at 895)
23. In my analysis. I will consolidate issue no 1and 2 and address them together. From the pleadings in the lower court, it is not in dispute that the 1st Respondent sustained injuries on the 6th May 2015 when offloading manholes from motor vehicle registration number KAS 306G. It is also not disputed that the Appellant had a contract with the 2nd defendant for supply of manholes. Mr. Jackson Ndegwa Kamau the witness who testified for the appellant confirmed that the truck used was loaded at their yard and together with the truck driver they went to deliver the manholes to the 2nd Respondent’s premises. In his testimony he stated that it was always the duty of the truck driver to ensure that the manholes were loaded and offloaded. From his evidence, it was implied that the Appellant was responsible for the injuries as they incurred the injuries in the course of performing work. Additionally, the truck and those managing the truck were employees of the Appellant hence vicariously liable to their actions as their agents. It was the truck driver in this case who employed the 1st Respondent to perform Appellant’s work.
24. The Appellant in their defence denied allegations that there existed any contract of employment between the 1st Respondent and the Appellant. They averred that their employee was one Mr. Jackson Ndegwa Kamau who was employed as a messenger and who at the time of the incident was present at the premises to ensure that the delivery notes are signed by the 2nd Respondents representatives.
25. The question therefore is whether there was any existing contract of employment between the Appellant and the 1st Respondent in this case? Section 2 of the Employment Act defines a
“Contract of service" means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learner ship but does not include a foreign contract of service to which Part XI of this Act applies;
An employer is defined as “employer" means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;
26. From the reading of the definition of contract of service. It is clear there need not to be a written agreement for a contract to be valid. A Valid contract can either be oral or in writing, expressed or implied. Equally, Section 8 of the said Act reinforced the place of both oral and written contracts of employment.
27. At the hearing and in their submission, the Appellant avers that the 1st Respondent has sued the wrong party and that he ought to have pursued the truck driver who was an independent contractor as the only relationship between the motor vehicle was only for executing a delivery on behalf of the Appellant, and that therefore does not confer any agency relationship or confer authority upon the independent contractor.
28. To, this point, and making reference to section 109 of the Evidence Act supra. The Appellant herein while sued by the 1st Respondent, not only denied liability but also introduced a 3rd party, in this case independent contractor who allegedly was the owner of the truck and the driver. At this point the burden of proof shifted to the Appellant to prove the existence of a contract of service between them and the independent contractor who was responsible for the driver as his agent. The Appellant however did not call any witness to support his claim. The Appellant failed to produce any evidence to show the truck belonged to an independent contractor.
29. From the above, I find that the Appellant failed to dislodge the 1st Respondent’s claim, that the Motor vehicle KAS 306G, belonged to them and that the driver was their employee. I find that the 1st Respondent on the other hand proved on a balance of probabilities that at the time of the occurrence of the incident, he had been engaged through oral contract of service as outlined in the Employment Act. He also demonstrated that the Appellant through his own employee one Mr. Jackson Kamau who was in-charge of the said motor vehicle owed the 1st Respondent a duty of care which was breached through the negligence act and omission of its agents. From the proceedings, the 1st Respondent was able to identify the Appellant’s employee as the person who engaged him on numerous occasions to offload manhole slabs, and he was the same person who engaged him on the material date of the accident. I am therefore persuaded that the 1st Respondent on a balance of probability established the existence of an oral contract of service and further demonstrated that the Appellant through its authorized agent exercised control over the 1st Respondent’s engagement.
30. Having established that there was an oral contract of service between the 1st Respondent and the Appellant and that the 1st Respondent was indeed injured a result of the said accident. I concur with findings of the trial court that the Appellant had a contractual or implied statutory duty of care to take reasonable care that the 1st Respondent was not injured. In relying on the Court of Appeal case in Paul Muthui Mwavu v Whitestone (K) Ltd [2015] KECA 745 (KLR) at Paras 24, the learned judges noted;
“24In our view, as long as the driver of the Land Rover was ready and willing to give the passengers a lift; and there being no warning that the driver could not carry passengers; and the driver having the authority to use the vehicle in the performance of a task or duty delegated by the owner of the vehicle; the owner of the vehicle remained liable, and such was the case with the Respondent”.
31. Likewise in the Nuthu case the Court restated the law on vicarious liability adopting the statement of Newbold P in Muwonge vs A.G. of Uganda (1967) EA 17 as follows:
“The law is so long as the driver’s act is committed by him in the course of his duty, even if he is acting deliberately, wantonly, negligently, or criminally, or even if he is acting for his own benefit or even if the act is committed contrary to his general instructions, the master is liable.”
32. In the current case, and having been persuaded that there existence an oral contract of employment between the Appellant and the 1st Respondent. I find it impossible to delink the actions of their agent and or employees who engaged the 1st Respondent. The master must therefore be liable. I therefore find no basis upon which to fault the lower court’s find on liability. I uphold liability at 100% against the Appellant.
33. I will now turn to the third issue, on what damages is the plaintiff entitled to recover if liability is established. The learned trial magistrate having found that the Appellant was 100% vicariously liable for the negligence of his employees and or agents, entered judgement in favour of the 1st Respondent as against the Appellant as follows:
a) General damages – Kshs 600,000
b) Special damages – Kshs 2,000/
Total – Kshs 602,000/=
c) Costs
d) Interest at the court’s rate from the date of filing this suit.
34. The 1st Respondent in their submissions suggested an award on general damages at Kshs 900,000/= The learned trial magistrate however saw it fit to award general damages at Kshs 600,000 and not Kshs 900,000/=.
35. The principles for distributing award of damages as outlined in Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another 1957 KLR 27 as follows: -
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.”
36. This therefore means that for the Appellate court to interfere with the award, it must justify the substitution taking into account the laid down principles, the law and the relevant case laws and not simply because it would have awarded a different figure if it had tried the case at the first instance.
37. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Apollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
38. In this case, the 1st Respondent suffered a fracture of the left distal tibia and
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