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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (High Court civil suit arising from the September 21, 1973 Amboseli accident; appeal number not stated in the judgment)· [1981] KECA 2 (KLR)

Anyanzwa v Gasperis [1981] KECA 2 (KLR)

Court of Appeal of Kenya
29 December 1981
ELE.J.E. LawKPK.D. PotterCMC.H.E. Miller
2,000 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that merely owning a vehicle does not make you liable when someone you hired it out to causes an accident.

What this practically means

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Executive summary

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A Volkswagen microbus owned by the appellants was hired out in writing to Hansmax Tours and Travel Ltd for twelve days at one shilling per kilometre, with Hansmax providing its own driver and paying all running expenses. The vehicle overturned in Amboseli Game Park in September 1973, killing the driver and injuring tourists. The injured respondents sued Hansmax and the owners; Hansmax never appeared and was later struck off the register. The High Court gave judgment against the owners, apparently assuming their vicarious liability as owners, without any finding of negligence or reasons. Law JA, delivering the judgment of the Court of Appeal (Potter and Miller JJA concurring), applied Cooke v Santos Maquel, Hewitt v Bonvin, Selle v Associated Motor Boat Co and Morgans v Launchbury, and held that liability for a non-servant driver's negligence depends on delegation of a task or duty, not on ownership or permission. The driver was not the owners' servant, drove at no request of theirs, performed no delegated duty, and the owners had no interest in or control over the vehicle's use. Hiring for consideration was not by itself enough to create agency. The court also criticised High Court judges for failing to frame and record issues under Order IV rule 1(5). The appeal was allowed with costs, the judgment and decree below set aside, and judgment substituted for the appellants, the court expressing regret that the respondents were left without redress and urging the insurers to make an ex gratia payment.

Key legal issues

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01

Vicarious liability of an owner for the negligence of a driver employed by the hirer

Holding

The owner is not liable where the driver was neither the owner's servant nor his agent driving on the owner's behalf; mere ownership and permission are insufficient.

Reasoning

The court applied Hewitt v Bonvin, Selle v Associated Motor Boat Co and Morgans v Launchbury. To fix liability on an owner for a non-servant driver's negligence, it must be shown that the driver was using the vehicle at the owner's request or on his instructions, in performance of a task or duty delegated by the owner. Here the owners hired out the microbus at a per-kilometre rate, Hansmax provided its own driver and paid all expenses, and the owners had no control over, or interest in, the use of the vehicle at the time of the accident.

p. 3
02

Adequacy of the High Court judgment

Holding

The judgment below was deficient: it contained no finding of negligence and no reasons for holding the owners vicariously liable.

Reasoning

The trial judge's decision consisted only of a recital of the plaintiffs' evidence and an assessment of damages, apparently assuming vicarious liability as owners. There was no finding on the vital issue of vicarious liability and no finding that the driver was negligent, even if only by res ipsa loquitur. The court lamented High Court judges' persistent failure to comply with Order IV rule 1(5) and frame and record issues.

p. 2

Legal principles established

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  • Vicarious liability for a driver who is not the owner's servant depends on delegation of a task or duty, not on ownership or permission
  • An owner who hires out his vehicle for purposes in which he has no interest or concern escapes vicarious liability
  • Hiring out a vehicle for a consideration is not by itself sufficient to make the owner vicariously liable for the hirer's driver's negligence

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Judgment and decree of the High Court set aside
  3. 3.Judgment and decree substituted in favour of the appellants, with costs of the suit
On appeal from
High Court of Kenya
not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal (not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anyanzwa v Gasperis [1981] KECA 2 (KLR)", Case Analysis (1981). Civil Appeal (High Court civil suit arising from the September 21, 1973 Amboseli accident; appeal number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/2/eng@1981-12-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.