INTRODUCTION
1. This is an appeal against the judgment of the Senior Principal Magistrate's Court at Webuye (Hon. Viola Yator, PM) delivered on 30th October 2024 in Webuye SPM CMCC No. 126 of 2017, Stephen Muroki Mburu v Moses Makale Shamwama alias Musa & Michael Kimani Ndiithi. The trial Court found the 1st and 2nd Defendants jointly and severally liable to the Plaintiff for conversion of a bale of clothes, and awarded general damages of Kshs 400,000/=, costs, and interest at Court rates from the date of judgment until payment in full.
2. The Appellant herein, Michael Kimani Ndiithi, was the 2nd Defendant in the Court below. He alone has appealed. The 1st Defendant, Moses Makale Shamwama alias Musa, did not participate in the trial after filing his defence, and has not participated in this appeal; he was joined to the appeal as the 2nd Respondent by way of the Amended Memorandum of Appeal dated 4th November 2024 and amended on 10th April 2026. Nothing in this judgment disturbs the findings of the trial Court as against the 1st Defendant/2nd Respondent, who has not appealed and is not represented before this Court.
B. BACKGROUND
3. By a Plaint dated 6th June 2017, the 1st Respondent (the Plaintiff below) sued the 2nd Respondent and the Appellant jointly and severally for general damages for conversion, costs, and interest. He pleaded that on or about 11th March 2017, in the forenoon, in Webuye Town, the 2nd Respondent and “other employees or agents” of the Appellant visited a store owned by one Josephat Muhoro, and without his permission or authority took therefrom a bale of assorted new clothes valued at approximately Kshs 300,000/=, loaded it onto motor vehicle registration number KAS 091Q (admitted to belong to the Appellant), and drove away with it to Bukembe Market in Bungoma County, from where it disappeared.
4. The 1st Respondent pleaded that the 2nd Respondent was, at all material times, the employee or agent of the Appellant, and that the Appellant was accordingly vicariously liable for his acts. The particulars of loss pleaded were (a) possession and use of the bale of clothes, and (b) profits from the sale of the bale of clothes.
5. The 2nd Respondent entered appearance and filed a defence but did not thereafter participate in the hearing. The Appellant entered appearance, filed a defence denying that he was the employer or principal of the 2nd Respondent, denying any prior business relationship with the 1st Respondent, and pleading that the 1st Respondent's claim was, in substance, an allegation of theft — a criminal act incapable of founding vicarious civil liability since “there is no agency in criminal acts.”
6. At trial, the 1st Respondent testified as PW1 and called two further witnesses, Robert Kisienye (PW2) and Zacharia Simiyu Mayuba (PW3). A fourth intended witness, Josephat Muhoro, the owner of the store from which the bale was said to have been taken, had recorded a statement dated 27th July 2018 and was named in the 1st Respondent’s list of witnesses, but was not called to testify. The record does not disclose why. The Appellant testified as DW1 and called no other witness.
C. SUMMARY OF THE EVIDENCE
7. PW1's evidence, as adopted from his witness statement and elaborated in cross-examination, was that he had stored a bale of second-hand/assorted clothes at Josephat Muhoro's store in Webuye. He further testified that on 11th March 2017, while he was at church, the 2nd Respondent and others took the bale from the store without his authority and it was loaded onto KAS 091Q and driven to Bukembe Market. Upon arrival, the 2nd Respondent handed the bale to PW3, a handcart pusher, for delivery to one “Herbert”. Herbert's people rejected the bale as not belonging to them and other traders, including PW2, then directed PW3 to return the bale to the 2nd Respondent for onward return to Muhoro's store. He testified that the bale was never returned and has not been recovered to date.
8. PW1 conceded in cross-examination that he did not know whether the Appellant was personally present at the scene, and that the 2nd Respondent was subsequently arrested and prosecuted for theft of the bale in a separate criminal case. I note that PW1 was not himself present when the bale is said to have left Muhoro's store, so that this particular part of his account is necessarily secondhand.
9. PW2, Robert Kisienye, a fellow trader, gave direct, firsthand evidence of events at Bukembe Market. He said he recognised the bale, which he knew belonged to the 1st Respondent from having previously seen it stored at Muhoro's store, when it was offloaded from KAS 091Q;. It was in the hands of the 2nd Respondent and that it was rejected by Herbert's people and that it was directed to be returned to the 2nd Respondent but never was.
10. PW3, Zacharia Simiyu Mayuba, the handcart pusher, also gave firsthand evidence. He testified that it was the 2nd Respondent who directed him to collect the bale from KAS 091Q and later to return it to him after Herbert's people rejected it. He testified that he knew the Appellant, whom he described as someone who “used to sell materials at Bukembe” and for whom he had himself previously carried luggage, and that the Appellant was the owner of the lorry, but stated that he did not see the Appellant at the market on the material day and did not hand the bale to him.
11. The Appellant (DW1) testified that he owns motor vehicle registration number KAS 091Q. He stated that he sometimes drives the vehicle himself, while at other times it is driven by an employee. On the material day, the vehicle was driven by one Khaemba, who was not called to testify. The Appellant said he was not present when the bale was allegedly loaded. He explained that the vehicle “carries luggage and any other business that is found” and that, during loading, “we employ a nearby person and pay.” A turn-boy is also engaged depending on the nature of the job. The Appellant further stated that he had transported luggage for members of the public “for some time” and had previously been sued in relation to lost luggage. He denied having an “agent” responsible for offloading luggage, maintaining that he only had a driver. He also denied knowing Josephat Muhoro or authorising the collection of the 1st Respondent’s goods.
D. THE TRIAL COURT'S JUDGMENT
12. The learned trial magistrate held that the bale had been entrusted to “the transporter,” that it was the duty of the 2nd Respondent, as the Appellant's agent, to ensure the bale was returned to Muhoro's store, and that his failure to do so caused the 1st Respondent's loss, for which the Appellant was found vicariously liable. I observe that the trial Court's judgment does not refer anywhere to Josephat Muhoro or to any statement of his; its finding of agency appears to rest on the evidence of PW1, PW2 and PW3 and on the Appellant's own testimony. On quantum, the Court noted that the 1st Respondent had testified to a loss of “approximately 300,000/=,” that he had produced receipts totalling approximately Kshs 387,810/=, and reasoned that “if the plaintiff was to sell the assorted clothes he would have definitely made some profit,” before assessing damages at Kshs 400,000/=. Judgment was entered accordingly, with costs and interest at Court rates from the date of judgment, and the Appellant was granted 30 days' stay of execution.
E. THE GROUNDS OF APPEAL
13. By the Amended Memorandum of Appeal, the Appellant advances nine grounds, which may conveniently be grouped as follows:
(a) Liability (grounds 1, 2, 3, 7, 8 and 9): that the trial Court erred in holding the Appellant vicariously liable for the 2nd Respondent's acts, which were criminal in nature (theft), there being “no agency in criminal acts”; that the 1st Respondent's own evidence confirmed that the 2nd Respondent was criminally charged with theft of the bale; that, in any event, if the bale left Muhoro's store without the 1st Respondent's authority, the fault and criminal liability lay with Muhoro, its custodian; that the trial Court failed to appreciate the Appellant's defence; and that the judgment was against the weight of the evidence.
(b) Quantum (grounds 4, 5 and 6): that the trial Court erred in awarding Kshs 400,000/= where only Kshs 300,000/= was pleaded; that the finding that the bale was worth Kshs 387,810/= was not pleaded and was contrary to the evidence; that the 1st Respondent admitted he had not paid for the bale at all (paying suppliers only later, on credit, by M-Pesa instalments) and produced no proof of payment; and that special damages of this kind require strict, not approximate, proof.
14. The Appellant's written submissions elaborate these grounds. On liability, counsel emphasises PW1's admission in cross-examination that the 2nd Respondent was arrested and charged with theft, and PW3's evidence that it was in fact the 2nd Respondent who first reported PW3 to police (though PW3 was not charged, while the 2nd Respondent was). It is submitted that theft is inherently personal and criminal, incapable of being committed “on behalf of” a principal, so that no vicarious liability can arise, and that Josephat Muhoro — never called to testify — was the person with a duty not to release the goods without the 1st Respondent's authority. On quantum, it is submitted that a party is bound by his pleadings under Order 2 Rule 6(1) of the Civil Procedure Rules; that the receipts produced were mostly made out to “self” and do not bear the 1st Respondent's name; and that the claim, being a claim for the value of a specific, quantifiable loss, was in substance a claim for special damages requiring strict proof, which was not furnished.
15. The 1st Respondent’s written submissions urge the Court to find that the relationship of employer and agent between the Appellant and the 2nd Respondent was sufficiently established by Josephat Muhoro’s evidence, said to be unrebutted, and the 2nd Respondent worked for the Appellant, which submissions assert; (i) that Muhoro did not testify as he passed on before testifying and (ii) that his statement was, in consequence, adopted by the court as evidenc, citing page 33 of the Record of Appeal for both propositions. Further, by the Appellan’'s own asmissions that he owns KAS 091Q and that he or the driver drives the vehicle, and his acknowledgment that he has previously transported goods for people before and had been sued in relation to lost luggage. It is also submitted that the Appellant failed to call the driver he identified as Khaemba to provide an innocent explanation for the circumstances in question.
16. The 1st Respondent relies on Nairobi Civil Appeal No. 31 of 1981, Anyanzwa v Gasperis, for the proposition that vicarious liability arises where an agent, at the material time, acts on behalf of and for the benefit of the owner. On quantum, the 1st Respondent submits that the receipts and travel documents produced constituted sufficient proof of value on a balance of probabilities. Reliance is placed on Consolidated Bank of Kenya v Securicor Security Services (Kenya) Ltd [2013] eKLR and Mboga v Shah [1968] EA 93.
17. The 1st Respondent also cites Ephantus Mwangi & Another v S.M.W. Wambugu [1982-88] 1 KAR 278 for the principle that an Appellate Court will not ordinarily interfere with a trial Court’s findings of fact unless it is demonstrated that the findings were based on no evidence or resulted from the application of wrong principles. Finally, the 1st Respondent asks the Court to expunge the Appellant’s submissions on the ground that they were filed outside the timeline prescribed by the trial Court for filing submissions on the appeal.
F. PRELIMINARY MATTERS
(1) The prayer to expunge the Appellant's submissions
18. I decline to expunge the Appellant's written submissions. No formal application was made for that relief; it is raised only as a prayer within the body of opposing submissions, without supporting material establishing the precise directions earlier given or the prejudice, if any, occasioned by the delay in filing.
19. More fundamentally, it is well established that written submissions are not pleadings. Pleadings define the issues in controversy and, by rules of procedure, carry consequences for default — including, in appropriate cases, striking out or judgment in default. Submissions serve a different purpose: they are counsel's argument, marshalling the law and the evidence already on the record to persuade the Court, and they neither create, enlarge, nor extinguish a party's substantive rights as was decided in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, where the Court of Appeal drew this very distinction in holding that a party cannot use submissions to smuggle in a case not pleaded as submissions are just that, submissions and not evidence. It follows that delay in filing submissions does not attract the same procedural consequence as, for instance, a failure to file a defence within time; where prejudice is occasioned by such delay, the ordinary remedy lies in an appropriate order as to costs, not in shutting out a party's argument on the merits altogether.
20. In any event, both sets of submissions are before the Court, address the merits fully, and neither party has been denied an opportunity to respond. Article 159(2)(d) of the Constitution enjoins Courts to administer justice without undue regard to procedural technicalities, and I see no prejudice here that would justify shutting out submissions on a matter of this importance to the parties. I have accordingly considered both sets of submissions in arriving at this judgment, subject to the observation which follows.
(2) The status of Josephat Muhoro's witness statement
21. As noted above, Josephat Muhoro recorded a witness statement dated 27th July 2018, which appears in the record among the pleadings and witness statements filed on the 1st Respondent's behalf, at page 33 of the Record of Appeal and he was named as the 1st Respondent’s second intended witness in the list of witnesses filed with the Plaint. Muhoro died before the hearing. He did not testify. I have examined the proceedings in full, from the commencement of hearing on 16th March 2022 through to the close of the defence case, and I find nothing recording why Muhoro was no called, there is no application concerning him, no explanation offered to the Trial Court, no reference to him at all beyond his having been listed as a witness at the outset. The Plaintiff’s case is simply closed, after PW1, PW2 and PW3 testified, without him. Further, I find nothing in the proceedings recording that Muhoro had died or that his statement was ever produced, read out, or formally adopted as evidence. No application was made to admit it in lieu of his oral testimony, no witness spoke to his death or to the statement's provenance at the hearing, and it is not referred to at any point in the proceedings. Nor does the trial Court's judgment mention Muhoro or purport to rely on anything contained in his statement; its finding of agency, as recorded, rests on the evidence of PW1, PW2, PW3 and the Appellant. I accordingly find that Muhoro's statement does not form part of the evidence properly before the trial Court, and I disregard it entirely for purposes of this appeal.
22. I note, with some concern, that the 1st Respondent's written submissions make two related assertions that are not borne out by the record; first, that Muhoro “did not testify as he had passed on before testifying”; and second, that his statement was, in consequence, “adopted by the Court as evidence”, citing page 33 of the record of appeal for both propositions. As to the first, there in nothing anywhere in the proceedings recording Muhoro’s death, and I am unable to verify that assertion from the record before me at all. It appears to be an unsourced statement from the bar.
23. As to the second, page 33 is simply the witness statement itself, filed together with the pleadings when the suit commenced; it is not, and could not be, a record of the statement's adoption at the hearing, and it should not have been cited as though it were. Counsel owes this Court a duty of candour in characterising the record, and a submission that asserts as fact a matter which the record plainly does not bear out risks misleading the Court, whether or not that was the intention. Having independently verified the point against the record myself, I am satisfied that no such adoption took place, and I proceed to determine this appeal, on the question of the Appellant's liability, on the evidence that was in fact adduced at the hearing — that is, the testimony of PW1, PW2, PW3 and the Appellant, without reference to Muhoro's statement.
G. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
24. This being a first appeal, this Court is under a duty to re-evaluate the evidence adduced before the trial Court, and to draw its own conclusions of fact and law, bearing in mind that it neither saw nor heard the witnesses, and giving allowance for that disadvantage (Selle v Associated Motor Boat Co. Ltd [1968] EA 123). As was held in Ephantus Mwangi & Another v S.M.W. Wambugu [1982-88] 1 KAR 278, cited by the 1st Respondent, an appellate Court will not ordinarily disturb a finding of fact made by a trial Court which had the advantage of seeing and hearing the witnesses, unless it is shown that the finding was based on no evidence, or that the trial Court took into account matters it should not have, or failed to take into account matters it should have, or that, on the totality of the evidence, the decision is plainly wrong. It is against this standard, and on the evidence properly on record as identified in Section F above, that I now turn to the issues arising.
H. ISSUES FOR DETERMINATION
25. The following issues arise for determination:
(i) Whether the relationship between the Appellant and the 2nd Respondent was such as to found vicarious liability;
(ii) Whether the criminal character of the 2nd Respondent's conduct precludes a finding of vicarious civil liability against the Appellant;
(iii) Whether the trial Court properly considered the Appellant's defence and the evidence as a whole;
(iv) Whether the sum of Kshs 400,000/= awarded as damages was properly pleaded and proved; and
(v) What orders should issue, including as to costs.
I. ANALYSIS
Issue (i): The relationship between the Appellant and the 2nd Respondent
26. Vicarious liability requires proof, on a balance of probabilities, of (a) a relationship of employer-employee or principal-agent between the defendant sought to be held liable and the wrongdoer, and (b) that the wrongful act was done in the course of, or was sufficiently closely connected with, that employment or agency.
27. On the first limb, and without the benefit of Muhoro's evidence for the reasons given above, I am nonetheless satisfied, on the evidence that was properly adduced, that the trial Court was entitled to find that the 2nd Respondent was, on 11th March 2017, acting for and on behalf of the Appellant. PW2 gave direct, firsthand evidence that he recognised the bale, which he knew belonged to the 1st Respondent from having previously seen it at Muhoro's store, when it was offloaded from the Appellant's vehicle, KAS 091Q, at Bukembe Market, in the hands of the 2nd Respondent. PW3 gave direct evidence that it was the 2nd Respondent who directed him to collect the bale from that vehicle, and later to return it, indicating that the 2nd Respondent was, that day, exercising some measure of control over goods being offloaded from the Appellant's lorry.
28. This is corroborated by circumstantial evidence which the Appellant himself supplied: that he is the registered owner of KAS 091Q; that the vehicle is used commercially to transport goods for members of the public, including, on his own account, goods other than his own (“any other business that is found”); that he personally drives it or has it driven, and separately engages persons to load and offload goods for pay, a turn-boy being engaged “depending” on the job; and that he had, prior to this incident, already been sued over previously lost luggage carried on that vehicle — indicating an established pattern of using the vehicle, and persons casually engaged for the purpose, to carry third-party goods for reward. Read together, and even setting Muhoro's evidence entirely aside, I am satisfied that this evidence supports, on a balance of probabilities, an inference that the 2nd Respondent was functioning that day as a person engaged by or on behalf of the Appellant's transport operation to manage the loading and delivery of goods carried on KAS 091Q, notwithstanding that the precise mechanics of his engagement were not fully particularised.
29. The Appellant’s evidence implicitly raised a point of law: that the 2nd Respondent, on the Appellant's own account, was at most someone casually or informally engaged, from time to time, to help load or offload goods, rather than a permanent employee under any written contract. That distinction does not assist the Appellant. It is now well settled, both in the persuasive authority of the courts of England and Wales from which much of our law of tort derives, and increasingly in this jurisdiction, that vicarious liability is not confined to relationships arising under a formal contract of employment. It extends to relationships properly described as ‘akin to employment’ or to ad hoc agency, wherever the person in question carries out an activity that forms an integral part of the principal's business, for the principal's benefit and under a degree of the principal's control, rather than pursuing an independent business of his own. I am persuaded by the decision in Cox v Ministry of Justice [2016] UKSC 10; Various Claimants v Catholic Child Welfare Society [2012] UKSC 56) in that regard.
30. Kenyan Courts have applied materially the same approach: vicarious liability ‘is not pegged on legal ownership [of a vehicle] but on employer/employee or agent/principal relationship, with particular emphasis on who employed and controlled the tortfeasor,’ and turns ‘not on ownership but on the delegation of tasks or duty’ as was decided in Equator Distributors v Joel Muriu & 3 others [2018] eKLR); and a relationship may found liability where it is ‘analogous to that of an employee acting in the course and scope’ of employment, even short of a formal contract, see Edward Mungai Waweru v Samson Ochieng Kagunda & another [2017] eKLR).
31. Closer still to the present facts, in Atieno v Kitui Floor Mills Ltd & another (Cause 89 of 2014) [2014] eKLR it was held that a worker engaged casually and paid piece-rate for loading goods may properly be found to stand in an employment or agency relationship notwithstanding the informality of the arrangement, and that a person who supervises and pays such a casual worker day to day may himself be treated as an agent of the true principal. The outer boundary of this principle is that a person genuinely conducting an independent business of his own, rather than one integrated into and serving the principal's enterprise, falls outside it as per Barclays Bank plc v Various Claimants [2020] UKSC 13 and in Board of Governors, St Mary's School v Boli Festus Andrew Sio [2020] eKLR, on the related exclusion of independent contractors from vicarious liability. On the facts here, nothing suggests the 2nd Respondent was carrying on an independent loading or transport business of his own; rather, the evidence places him, on the material day, handling goods carried on the Appellant's vehicle in circumstances consistent with precisely the pattern of casual engagement the Appellant himself described. I am accordingly satisfied that an informal or piece-work engagement of the kind in issue here is capable of founding vicarious liability, and that the absence of a formal contract of employment is not, by itself, an answer to the 1st Respondent's claim.
32. The Appellant's evidence that the vehicle was in fact driven that day by one “Khaemba,” and that he personally does not engage an “agent,” was not corroborated by any other evidence; Khaemba — whose account might have shed direct light on who, if anyone, engaged the 2nd Respondent that day — was neither called as a witness nor his absence explained, and an adverse inference may properly be drawn from the unexplained failure to call a witness whose evidence would have been material and was peculiarly within the Appellant's ability to produce. Weighing this against the direct evidence of PW2 and PW3 and the Appellant's own account of his general practice of casually engaging labour for loading and offloading, I find that the trial Court’s factual finding of agency should not be disturbed.
Issue (ii): Whether the criminal character of the act precludes vicarious liability
33. This is the centrepiece of the Appellant's case, advanced in grounds 1, 2, 3 and 7: that because the 2nd Respondent was criminally charged with theft of the bale, his conduct cannot, as a matter of law, be attributed to the Appellant, there being “no agency in criminal acts.” I am unable to accept this proposition, which does not correctly state the law.
34. It is well established that an employer or principal may be vicariously liable in tort for the dishonest or even criminal acts of an employee or agent, including theft or conversion of property entrusted to that employee in the course of the employment, provided the wrongful act is sufficiently closely connected with what the employee was engaged to do. The classic illustration is that of a bailee-for-reward whose employee, while performing the very task of caring for or transporting goods entrusted to the employer, steals or misappropriates them: the employer does not escape liability merely because the employee's conduct was also a crime, since it is precisely the opportunity and means to commit the wrong that the employment created. The existence of a criminal charge against the wrongdoer, or even his prosecution and conviction, goes to his own criminal responsibility; it does not, without more, extinguish the separate and independent civil liability of his employer or principal for the tort of conversion committed in the course of, or closely connected with, the employment. To hold otherwise would permit an employer to profit from turning a blind eye to how his employees or agents handle goods entrusted to his business, so long as the particular misconduct happened also to be prosecutable as a crime — a result the law of vicarious liability is not designed to produce.
35. On the facts as found above, the 2nd Respondent was, at the material time, handling the bale in the course of an errand connected with the Appellant's transport operation, using the Appellant's vehicle. His subsequent failure to return the bale to Muhoro's store, whatever criminal complexion it later acquired, arose directly out of, and was closely connected with, that errand. I therefore find that the trial Court did not err in holding the Appellant vicariously liable notwithstanding the criminal prosecution of the 2nd Respondent. Grounds 1, 2 and 3 of the appeal accordingly fail.
36. As to ground 7 — that any fault lay with Josephat Muhoro for releasing the bale without the 1st Respondent's express authority, such that any liability is criminal in nature and falls on Muhoro rather than the Appellant — I find this does not assist the Appellant, and in any event proceeds on evidence not properly before the Court. The precise circumstances in which the bale left Muhoro's store are not established by any witness with firsthand knowledge: PW1 was at church at the time and could only repeat what he had been told, and Muhoro's own account, for the reasons given above, is not before the Court. What is established, from the direct evidence of PW2 and PW3, is that shortly afterwards the bale was seen in the 2nd Respondent's hands at Bukembe Market, freshly offloaded from the Appellant's vehicle. Whether Muhoro was also negligent, or even complicit, in how the bale left his store is not a matter this Court is able to resolve on the evidence before it; and, in any event, any such negligence on Muhoro's part would not excuse the Appellant from liability for his own agent's subsequent failure to account for or return goods that came into that agent's hands in the course of the agency. Ground 7 fails.
Issue (iii): Whether the trial Court properly considered the defence and the whole evidence
37. Grounds 8 and 9 complain, respectively, that the trial Court failed to appreciate the Appellant's defence at all, and that the judgment was against the weight of the evidence. The trial Court's judgment is undeniably terse, but, as already noted, it does not appear to have relied on Muhoro's statement at all — its finding of agency is founded on the evidence of PW1, PW2, PW3 and the Appellant. Brevity in a judgment's reasoning is not, without more, an error warranting appellate interference, provided the ultimate conclusion is supported by the evidence properly on record and no wrong principle was applied. Having re-evaluated the record afresh, and having left Muhoro's statement out of account entirely, I am satisfied, for the reasons given under Issues (i) and (ii) above, that the evidence properly adduced supported the finding of vicarious liability, and that the Appellant's defence — essentially, a bare denial of agency and of presence at the scene — was, on the totality of that evidence, correctly rejected. Grounds 8 and 9, insofar as they relate to the finding of liability, accordingly fail.
Issue (iv): Whether the sum of Kshs 400,000/= was properly pleaded and proved
38. I reach a different conclusion on quantum, and find that grounds 4, 5 and 6 of the appeal have merit.
39. It is trite that a party is bound by his pleadi
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1. This is an appeal against the judgment of the Senior Principal Magistrate's Court at Webuye (Hon. Viola Yator, PM) delivered on 30th October 2024 in Webuye SPM CMCC No. 126 of 2017, Stephen Muroki Mburu v Moses Makale Shamwama alias Musa & Michael Kimani Ndiithi. The trial Court found the 1st and 2nd Defendants jointly and severally liable to the Plaintiff for conversion of a bale of clothes, and awarded general damages of Kshs 400,000/=, costs, and interest at Court rates from the date of judgment until payment in full.
2. The Appellant herein, Michael Kimani Ndiithi, was the 2nd Defendant in the Court below. He alone has appealed. The 1st Defendant, Moses Makale Shamwama alias Musa, did not participate in the trial after filing his defence, and has not participated in this appeal; he was joined to the appeal as the 2nd Respondent by way of the Amended Memorandum of Appeal dated 4th November 2024 and amended on 10th April 2026. Nothing in this judgment disturbs the findings of the trial Court as against the 1st Defendant/2nd Respondent, who has not appealed and is not represented before this Court.
B. BACKGROUND
3. By a Plaint dated 6th June 2017, the 1st Respondent (the Plaintiff below) sued the 2nd Respondent and the Appellant jointly and severally for general damages for conversion, costs, and interest. He pleaded that on or about 11th March 2017, in the forenoon, in Webuye Town, the 2nd Respondent and “other employees or agents” of the Appellant visited a store owned by one Josephat Muhoro, and without his permission or authority took therefrom a bale of assorted new clothes valued at approximately Kshs 300,000/=, loaded it onto motor vehicle registration number KAS 091Q (admitted to belong to the Appellant), and drove away with it to Bukembe Market in Bungoma County, from where it disappeared.
4. The 1st Respondent pleaded that the 2nd Respondent was, at all material times, the employee or agent of the Appellant, and that the Appellant was accordingly vicariously liable for his acts. The particulars of loss pleaded were (a) possession and use of the bale of clothes, and (b) profits from the sale of the bale of clothes.
5. The 2nd Respondent entered appearance and filed a defence but did not thereafter participate in the hearing. The Appellant entered appearance, filed a defence denying that he was the employer or principal of the 2nd Respondent, denying any prior business relationship with the 1st Respondent, and pleading that the 1st Respondent's claim was, in substance, an allegation of theft — a criminal act incapable of founding vicarious civil liability since “there is no agency in criminal acts.”
6. At trial, the 1st Respondent testified as PW1 and called two further witnesses, Robert Kisienye (PW2) and Zacharia Simiyu Mayuba (PW3). A fourth intended witness, Josephat Muhoro, the owner of the store from which the bale was said to have been taken, had recorded a statement dated 27th July 2018 and was named in the 1st Respondent’s list of witnesses, but was not called to testify. The record does not disclose why. The Appellant testified as DW1 and called no other witness.
C. SUMMARY OF THE EVIDENCE
7. PW1's evidence, as adopted from his witness statement and elaborated in cross-examination, was that he had stored a bale of second-hand/assorted clothes at Josephat Muhoro's store in Webuye. He further testified that on 11th March 2017, while he was at church, the 2nd Respondent and others took the bale from the store without his authority and it was loaded onto KAS 091Q and driven to Bukembe Market. Upon arrival, the 2nd Respondent handed the bale to PW3, a handcart pusher, for delivery to one “Herbert”. Herbert's people rejected the bale as not belonging to them and other traders, including PW2, then directed PW3 to return the bale to the 2nd Respondent for onward return to Muhoro's store. He testified that the bale was never returned and has not been recovered to date.
8. PW1 conceded in cross-examination that he did not know whether the Appellant was personally present at the scene, and that the 2nd Respondent was subsequently arrested and prosecuted for theft of the bale in a separate criminal case. I note that PW1 was not himself present when the bale is said to have left Muhoro's store, so that this particular part of his account is necessarily secondhand.
9. PW2, Robert Kisienye, a fellow trader, gave direct, firsthand evidence of events at Bukembe Market. He said he recognised the bale, which he knew belonged to the 1st Respondent from having previously seen it stored at Muhoro's store, when it was offloaded from KAS 091Q;. It was in the hands of the 2nd Respondent and that it was rejected by Herbert's people and that it was directed to be returned to the 2nd Respondent but never was.
10. PW3, Zacharia Simiyu Mayuba, the handcart pusher, also gave firsthand evidence. He testified that it was the 2nd Respondent who directed him to collect the bale from KAS 091Q and later to return it to him after Herbert's people rejected it. He testified that he knew the Appellant, whom he described as someone who “used to sell materials at Bukembe” and for whom he had himself previously carried luggage, and that the Appellant was the owner of the lorry, but stated that he did not see the Appellant at the market on the material day and did not hand the bale to him.
11. The Appellant (DW1) testified that he owns motor vehicle registration number KAS 091Q. He stated that he sometimes drives the vehicle himself, while at other times it is driven by an employee. On the material day, the vehicle was driven by one Khaemba, who was not called to testify. The Appellant said he was not present when the bale was allegedly loaded. He explained that the vehicle “carries luggage and any other business that is found” and that, during loading, “we employ a nearby person and pay.” A turn-boy is also engaged depending on the nature of the job. The Appellant further stated that he had transported luggage for members of the public “for some time” and had previously been sued in relation to lost luggage. He denied having an “agent” responsible for offloading luggage, maintaining that he only had a driver. He also denied knowing Josephat Muhoro or authorising the collection of the 1st Respondent’s goods.
D. THE TRIAL COURT'S JUDGMENT
12. The learned trial magistrate held that the bale had been entrusted to “the transporter,” that it was the duty of the 2nd Respondent, as the Appellant's agent, to ensure the bale was returned to Muhoro's store, and that his failure to do so caused the 1st Respondent's loss, for which the Appellant was found vicariously liable. I observe that the trial Court's judgment does not refer anywhere to Josephat Muhoro or to any statement of his; its finding of agency appears to rest on the evidence of PW1, PW2 and PW3 and on the Appellant's own testimony. On quantum, the Court noted that the 1st Respondent had testified to a loss of “approximately 300,000/=,” that he had produced receipts totalling approximately Kshs 387,810/=, and reasoned that “if the plaintiff was to sell the assorted clothes he would have definitely made some profit,” before assessing damages at Kshs 400,000/=. Judgment was entered accordingly, with costs and interest at Court rates from the date of judgment, and the Appellant was granted 30 days' stay of execution.
E. THE GROUNDS OF APPEAL
13. By the Amended Memorandum of Appeal, the Appellant advances nine grounds, which may conveniently be grouped as follows:
(a) Liability (grounds 1, 2, 3, 7, 8 and 9): that the trial Court erred in holding the Appellant vicariously liable for the 2nd Respondent's acts, which were criminal in nature (theft), there being “no agency in criminal acts”; that the 1st Respondent's own evidence confirmed that the 2nd Respondent was criminally charged with theft of the bale; that, in any event, if the bale left Muhoro's store without the 1st Respondent's authority, the fault and criminal liability lay with Muhoro, its custodian; that the trial Court failed to appreciate the Appellant's defence; and that the judgment was against the weight of the evidence.
(b) Quantum (grounds 4, 5 and 6): that the trial Court erred in awarding Kshs 400,000/= where only Kshs 300,000/= was pleaded; that the finding that the bale was worth Kshs 387,810/= was not pleaded and was contrary to the evidence; that the 1st Respondent admitted he had not paid for the bale at all (paying suppliers only later, on credit, by M-Pesa instalments) and produced no proof of payment; and that special damages of this kind require strict, not approximate, proof.
14. The Appellant's written submissions elaborate these grounds. On liability, counsel emphasises PW1's admission in cross-examination that the 2nd Respondent was arrested and charged with theft, and PW3's evidence that it was in fact the 2nd Respondent who first reported PW3 to police (though PW3 was not charged, while the 2nd Respondent was). It is submitted that theft is inherently personal and criminal, incapable of being committed “on behalf of” a principal, so that no vicarious liability can arise, and that Josephat Muhoro — never called to testify — was the person with a duty not to release the goods without the 1st Respondent's authority. On quantum, it is submitted that a party is bound by his pleadings under Order 2 Rule 6(1) of the Civil Procedure Rules; that the receipts produced were mostly made out to “self” and do not bear the 1st Respondent's name; and that the claim, being a claim for the value of a specific, quantifiable loss, was in substance a claim for special damages requiring strict proof, which was not furnished.
15. The 1st Respondent’s written submissions urge the Court to find that the relationship of employer and agent between the Appellant and the 2nd Respondent was sufficiently established by Josephat Muhoro’s evidence, said to be unrebutted, and the 2nd Respondent worked for the Appellant, which submissions assert; (i) that Muhoro did not testify as he passed on before testifying and (ii) that his statement was, in consequence, adopted by the court as evidenc, citing page 33 of the Record of Appeal for both propositions. Further, by the Appellan’'s own asmissions that he owns KAS 091Q and that he or the driver drives the vehicle, and his acknowledgment that he has previously transported goods for people before and had been sued in relation to lost luggage. It is also submitted that the Appellant failed to call the driver he identified as Khaemba to provide an innocent explanation for the circumstances in question.
16. The 1st Respondent relies on Nairobi Civil Appeal No. 31 of 1981, Anyanzwa v Gasperis, for the proposition that vicarious liability arises where an agent, at the material time, acts on behalf of and for the benefit of the owner. On quantum, the 1st Respondent submits that the receipts and travel documents produced constituted sufficient proof of value on a balance of probabilities. Reliance is placed on Consolidated Bank of Kenya v Securicor Security Services (Kenya) Ltd [2013] eKLR and Mboga v Shah [1968] EA 93.
17. The 1st Respondent also cites Ephantus Mwangi & Another v S.M.W. Wambugu [1982-88] 1 KAR 278 for the principle that an Appellate Court will not ordinarily interfere with a trial Court’s findings of fact unless it is demonstrated that the findings were based on no evidence or resulted from the application of wrong principles. Finally, the 1st Respondent asks the Court to expunge the Appellant’s submissions on the ground that they were filed outside the timeline prescribed by the trial Court for filing submissions on the appeal.
F. PRELIMINARY MATTERS
(1) The prayer to expunge the Appellant's submissions
18. I decline to expunge the Appellant's written submissions. No formal application was made for that relief; it is raised only as a prayer within the body of opposing submissions, without supporting material establishing the precise directions earlier given or the prejudice, if any, occasioned by the delay in filing.
19. More fundamentally, it is well established that written submissions are not pleadings. Pleadings define the issues in controversy and, by rules of procedure, carry consequences for default — including, in appropriate cases, striking out or judgment in default. Submissions serve a different purpose: they are counsel's argument, marshalling the law and the evidence already on the record to persuade the Court, and they neither create, enlarge, nor extinguish a party's substantive rights as was decided in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, where the Court of Appeal drew this very distinction in holding that a party cannot use submissions to smuggle in a case not pleaded as submissions are just that, submissions and not evidence. It follows that delay in filing submissions does not attract the same procedural consequence as, for instance, a failure to file a defence within time; where prejudice is occasioned by such delay, the ordinary remedy lies in an appropriate order as to costs, not in shutting out a party's argument on the merits altogether.
20. In any event, both sets of submissions are before the Court, address the merits fully, and neither party has been denied an opportunity to respond. Article 159(2)(d) of the Constitution enjoins Courts to administer justice without undue regard to procedural technicalities, and I see no prejudice here that would justify shutting out submissions on a matter of this importance to the parties. I have accordingly considered both sets of submissions in arriving at this judgment, subject to the observation which follows.
(2) The status of Josephat Muhoro's witness statement
21. As noted above, Josephat Muhoro recorded a witness statement dated 27th July 2018, which appears in the record among the pleadings and witness statements filed on the 1st Respondent's behalf, at page 33 of the Record of Appeal and he was named as the 1st Respondent’s second intended witness in the list of witnesses filed with the Plaint. Muhoro died before the hearing. He did not testify. I have examined the proceedings in full, from the commencement of hearing on 16th March 2022 through to the close of the defence case, and I find nothing recording why Muhoro was no called, there is no application concerning him, no explanation offered to the Trial Court, no reference to him at all beyond his having been listed as a witness at the outset. The Plaintiff’s case is simply closed, after PW1, PW2 and PW3 testified, without him. Further, I find nothing in the proceedings recording that Muhoro had died or that his statement was ever produced, read out, or formally adopted as evidence. No application was made to admit it in lieu of his oral testimony, no witness spoke to his death or to the statement's provenance at the hearing, and it is not referred to at any point in the proceedings. Nor does the trial Court's judgment mention Muhoro or purport to rely on anything contained in his statement; its finding of agency, as recorded, rests on the evidence of PW1, PW2, PW3 and the Appellant. I accordingly find that Muhoro's statement does not form part of the evidence properly before the trial Court, and I disregard it entirely for purposes of this appeal.
22. I note, with some concern, that the 1st Respondent's written submissions make two related assertions that are not borne out by the record; first, that Muhoro “did not testify as he had passed on before testifying”; and second, that his statement was, in consequence, “adopted by the Court as evidence”, citing page 33 of the record of appeal for both propositions. As to the first, there in nothing anywhere in the proceedings recording Muhoro’s death, and I am unable to verify that assertion from the record before me at all. It appears to be an unsourced statement from the bar.
23. As to the second, page 33 is simply the witness statement itself, filed together with the pleadings when the suit commenced; it is not, and could not be, a record of the statement's adoption at the hearing, and it should not have been cited as though it were. Counsel owes this Court a duty of candour in characterising the record, and a submission that asserts as fact a matter which the record plainly does not bear out risks misleading the Court, whether or not that was the intention. Having independently verified the point against the record myself, I am satisfied that no such adoption took place, and I proceed to determine this appeal, on the question of the Appellant's liability, on the evidence that was in fact adduced at the hearing — that is, the testimony of PW1, PW2, PW3 and the Appellant, without reference to Muhoro's statement.
G. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
24. This being a first appeal, this Court is under a duty to re-evaluate the evidence adduced before the trial Court, and to draw its own conclusions of fact and law, bearing in mind that it neither saw nor heard the witnesses, and giving allowance for that disadvantage (Selle v Associated Motor Boat Co. Ltd [1968] EA 123). As was held in Ephantus Mwangi & Another v S.M.W. Wambugu [1982-88] 1 KAR 278, cited by the 1st Respondent, an appellate Court will not ordinarily disturb a finding of fact made by a trial Court which had the advantage of seeing and hearing the witnesses, unless it is shown that the finding was based on no evidence, or that the trial Court took into account matters it should not have, or failed to take into account matters it should have, or that, on the totality of the evidence, the decision is plainly wrong. It is against this standard, and on the evidence properly on record as identified in Section F above, that I now turn to the issues arising.
H. ISSUES FOR DETERMINATION
25. The following issues arise for determination:
(i) Whether the relationship between the Appellant and the 2nd Respondent was such as to found vicarious liability;
(ii) Whether the criminal character of the 2nd Respondent's conduct precludes a finding of vicarious civil liability against the Appellant;
(iii) Whether the trial Court properly considered the Appellant's defence and the evidence as a whole;
(iv) Whether the sum of Kshs 400,000/= awarded as damages was properly pleaded and proved; and
(v) What orders should issue, including as to costs.
I. ANALYSIS
Issue (i): The relationship between the Appellant and the 2nd Respondent
26. Vicarious liability requires proof, on a balance of probabilities, of (a) a relationship of employer-employee or principal-agent between the defendant sought to be held liable and the wrongdoer, and (b) that the wrongful act was done in the course of, or was sufficiently closely connected with, that employment or agency.
27. On the first limb, and without the benefit of Muhoro's evidence for the reasons given above, I am nonetheless satisfied, on the evidence that was properly adduced, that the trial Court was entitled to find that the 2nd Respondent was, on 11th March 2017, acting for and on behalf of the Appellant. PW2 gave direct, firsthand evidence that he recognised the bale, which he knew belonged to the 1st Respondent from having previously seen it at Muhoro's store, when it was offloaded from the Appellant's vehicle, KAS 091Q, at Bukembe Market, in the hands of the 2nd Respondent. PW3 gave direct evidence that it was the 2nd Respondent who directed him to collect the bale from that vehicle, and later to return it, indicating that the 2nd Respondent was, that day, exercising some measure of control over goods being offloaded from the Appellant's lorry.
28. This is corroborated by circumstantial evidence which the Appellant himself supplied: that he is the registered owner of KAS 091Q; that the vehicle is used commercially to transport goods for members of the public, including, on his own account, goods other than his own (“any other business that is found”); that he personally drives it or has it driven, and separately engages persons to load and offload goods for pay, a turn-boy being engaged “depending” on the job; and that he had, prior to this incident, already been sued over previously lost luggage carried on that vehicle — indicating an established pattern of using the vehicle, and persons casually engaged for the purpose, to carry third-party goods for reward. Read together, and even setting Muhoro's evidence entirely aside, I am satisfied that this evidence supports, on a balance of probabilities, an inference that the 2nd Respondent was functioning that day as a person engaged by or on behalf of the Appellant's transport operation to manage the loading and delivery of goods carried on KAS 091Q, notwithstanding that the precise mechanics of his engagement were not fully particularised.
29. The Appellant’s evidence implicitly raised a point of law: that the 2nd Respondent, on the Appellant's own account, was at most someone casually or informally engaged, from time to time, to help load or offload goods, rather than a permanent employee under any written contract. That distinction does not assist the Appellant. It is now well settled, both in the persuasive authority of the courts of England and Wales from which much of our law of tort derives, and increasingly in this jurisdiction, that vicarious liability is not confined to relationships arising under a formal contract of employment. It extends to relationships properly described as ‘akin to employment’ or to ad hoc agency, wherever the person in question carries out an activity that forms an integral part of the principal's business, for the principal's benefit and under a degree of the principal's control, rather than pursuing an independent business of his own. I am persuaded by the decision in Cox v Ministry of Justice [2016] UKSC 10; Various Claimants v Catholic Child Welfare Society [2012] UKSC 56) in that regard.
30. Kenyan Courts have applied materially the same approach: vicarious liability ‘is not pegged on legal ownership [of a vehicle] but on employer/employee or agent/principal relationship, with particular emphasis on who employed and controlled the tortfeasor,’ and turns ‘not on ownership but on the delegation of tasks or duty’ as was decided in Equator Distributors v Joel Muriu & 3 others [2018] eKLR); and a relationship may found liability where it is ‘analogous to that of an employee acting in the course and scope’ of employment, even short of a formal contract, see Edward Mungai Waweru v Samson Ochieng Kagunda & another [2017] eKLR).
31. Closer still to the present facts, in Atieno v Kitui Floor Mills Ltd & another (Cause 89 of 2014) [2014] eKLR it was held that a worker engaged casually and paid piece-rate for loading goods may properly be found to stand in an employment or agency relationship notwithstanding the informality of the arrangement, and that a person who supervises and pays such a casual worker day to day may himself be treated as an agent of the true principal. The outer boundary of this principle is that a person genuinely conducting an independent business of his own, rather than one integrated into and serving the principal's enterprise, falls outside it as per Barclays Bank plc v Various Claimants [2020] UKSC 13 and in Board of Governors, St Mary's School v Boli Festus Andrew Sio [2020] eKLR, on the related exclusion of independent contractors from vicarious liability. On the facts here, nothing suggests the 2nd Respondent was carrying on an independent loading or transport business of his own; rather, the evidence places him, on the material day, handling goods carried on the Appellant's vehicle in circumstances consistent with precisely the pattern of casual engagement the Appellant himself described. I am accordingly satisfied that an informal or piece-work engagement of the kind in issue here is capable of founding vicarious liability, and that the absence of a formal contract of employment is not, by itself, an answer to the 1st Respondent's claim.
32. The Appellant's evidence that the vehicle was in fact driven that day by one “Khaemba,” and that he personally does not engage an “agent,” was not corroborated by any other evidence; Khaemba — whose account might have shed direct light on who, if anyone, engaged the 2nd Respondent that day — was neither called as a witness nor his absence explained, and an adverse inference may properly be drawn from the unexplained failure to call a witness whose evidence would have been material and was peculiarly within the Appellant's ability to produce. Weighing this against the direct evidence of PW2 and PW3 and the Appellant's own account of his general practice of casually engaging labour for loading and offloading, I find that the trial Court’s factual finding of agency should not be disturbed.
Issue (ii): Whether the criminal character of the act precludes vicarious liability
33. This is the centrepiece of the Appellant's case, advanced in grounds 1, 2, 3 and 7: that because the 2nd Respondent was criminally charged with theft of the bale, his conduct cannot, as a matter of law, be attributed to the Appellant, there being “no agency in criminal acts.” I am unable to accept this proposition, which does not correctly state the law.
34. It is well established that an employer or principal may be vicariously liable in tort for the dishonest or even criminal acts of an employee or agent, including theft or conversion of property entrusted to that employee in the course of the employment, provided the wrongful act is sufficiently closely connected with what the employee was engaged to do. The classic illustration is that of a bailee-for-reward whose employee, while performing the very task of caring for or transporting goods entrusted to the employer, steals or misappropriates them: the employer does not escape liability merely because the employee's conduct was also a crime, since it is precisely the opportunity and means to commit the wrong that the employment created. The existence of a criminal charge against the wrongdoer, or even his prosecution and conviction, goes to his own criminal responsibility; it does not, without more, extinguish the separate and independent civil liability of his employer or principal for the tort of conversion committed in the course of, or closely connected with, the employment. To hold otherwise would permit an employer to profit from turning a blind eye to how his employees or agents handle goods entrusted to his business, so long as the particular misconduct happened also to be prosecutable as a crime — a result the law of vicarious liability is not designed to produce.
35. On the facts as found above, the 2nd Respondent was, at the material time, handling the bale in the course of an errand connected with the Appellant's transport operation, using the Appellant's vehicle. His subsequent failure to return the bale to Muhoro's store, whatever criminal complexion it later acquired, arose directly out of, and was closely connected with, that errand. I therefore find that the trial Court did not err in holding the Appellant vicariously liable notwithstanding the criminal prosecution of the 2nd Respondent. Grounds 1, 2 and 3 of the appeal accordingly fail.
36. As to ground 7 — that any fault lay with Josephat Muhoro for releasing the bale without the 1st Respondent's express authority, such that any liability is criminal in nature and falls on Muhoro rather than the Appellant — I find this does not assist the Appellant, and in any event proceeds on evidence not properly before the Court. The precise circumstances in which the bale left Muhoro's store are not established by any witness with firsthand knowledge: PW1 was at church at the time and could only repeat what he had been told, and Muhoro's own account, for the reasons given above, is not before the Court. What is established, from the direct evidence of PW2 and PW3, is that shortly afterwards the bale was seen in the 2nd Respondent's hands at Bukembe Market, freshly offloaded from the Appellant's vehicle. Whether Muhoro was also negligent, or even complicit, in how the bale left his store is not a matter this Court is able to resolve on the evidence before it; and, in any event, any such negligence on Muhoro's part would not excuse the Appellant from liability for his own agent's subsequent failure to account for or return goods that came into that agent's hands in the course of the agency. Ground 7 fails.
Issue (iii): Whether the trial Court properly considered the defence and the whole evidence
37. Grounds 8 and 9 complain, respectively, that the trial Court failed to appreciate the Appellant's defence at all, and that the judgment was against the weight of the evidence. The trial Court's judgment is undeniably terse, but, as already noted, it does not appear to have relied on Muhoro's statement at all — its finding of agency is founded on the evidence of PW1, PW2, PW3 and the Appellant. Brevity in a judgment's reasoning is not, without more, an error warranting appellate interference, provided the ultimate conclusion is supported by the evidence properly on record and no wrong principle was applied. Having re-evaluated the record afresh, and having left Muhoro's statement out of account entirely, I am satisfied, for the reasons given under Issues (i) and (ii) above, that the evidence properly adduced supported the finding of vicarious liability, and that the Appellant's defence — essentially, a bare denial of agency and of presence at the scene — was, on the totality of that evidence, correctly rejected. Grounds 8 and 9, insofar as they relate to the finding of liability, accordingly fail.
Issue (iv): Whether the sum of Kshs 400,000/= was properly pleaded and proved
38. I reach a different conclusion on quantum, and find that grounds 4, 5 and 6 of the appeal have merit.
39. It is trite that a party is bound by his pleadi
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