Ndoo t/a Ngomeni Bus Service v Kakuzi Ltd [1984] KECA 26 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether at the time of the collision the respondent's employee was acting in the course of his employment so as to make the respondent vicariously liable for his negligence
- 2.Whether the employee was on a frolic of his own
- 3.On whom the evidential burden lay once it was shown the servant was driving the employer's vehicle during working hours
Key legal issues
#Whether the employee was acting in the course of his employment
Yes. The employee was on duty, was employed to look after irrigation and watch for fire on the employer's estates using the employer's vehicle, and any use of the highway was at worst disobedience while performing his master's business.
The court adopted a broad view of all the circumstances rather than dissecting the servant's task. The employer failed to rebut the presumption that the vehicle was being used for its purposes, since the driver had general authority to use it and the employer's manager admitted he did not know what the driver was doing on the road. An express prohibition, even if made out, could not relieve the employer where the driver was doing what he was employed to do in an unauthorized manner.
On whom the burden of proof lay
The evidential burden lay on the employer once the servant's act was shown to be connected with his employment, and the employer failed to discharge it by not calling the driver.
Adriani, the employer's manager, testified that he had no idea why the driver was on the particular road that night. There was no evidence of the geography of the area, no sketch plans or maps of the locus in quo, and the employer's assertion that the driver ought not to have been on the road was insufficient. The driver alone could say whether he was on his employer's work or on a frolic of his own, and he was not called.
Legal principles established
#- Where the employer entrusts a vehicle to a servant with authority to use it in the employer's business, the employer is liable for the servant's negligence while using it wholly or partly on the employer's business, even if he also uses it for other purposes without permission.
- A master is liable even for unauthorized acts of his servant that are so connected with authorized acts as to be improper modes of doing them; disobedience of the employer's command while doing what the servant was employed to do does not absolve the employer.
- Once it is shown the servant was doing something in his working hours connected with the work he was employed to do, the evidential burden shifts to the employer to show the act was one for which he was not responsible.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court set aside
- 3.Judgment entered for the appellant for agreed damages and interest thereon as claimed in the plaint
- 4.Costs of the appeal and in the High Court awarded to the appellant
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the lead majority judgment holding the employer liable: once the servant was doing something in his working hours connected with his work, the evidential burden shifted to the employer, which failed to rebut the presumption that the vehicle was on its business; disobedience of an express prohibition did not absolve the employer.
So, in the absence of evidence that he was doing his own business, the reasonable presumption is that he was on his master's business.p. 4
Wrote the judgment
Concurring judgment agreeing that the respondent employer failed to discharge the burden of proving its driver was on a frolic of his own; absence of evidence on the geography of the area and the employer's failure to call the driver meant liability attached.
Apply the decided cases and the general principles of the law and the result is that the respondent did not discharge as required, the burden cast on it.p. 5
Wrote the judgment
Dissented: applying the Diplock test in Hilton v Thomas Burton, the driver was on a wholly unauthorized jaunt off the estate, not incidental to his employment; his gross misconduct broke the connection of service and the employer proved he acted outside the scope of employment.
Unfortunately, I find, I must dissent from the view of my brothers for I have to say I could not find Karuri was acting within the scope of his employment when he was off the estate, during his working hours, not keeping a look out for fires and not checking on the irrigation of the horticultural section.p. 10
- On appeal from
- High Court of Kenya at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (specific provision not stated in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, I would allow the appeal, set aside the High Court judgment and give judgment for the appellant/plaintiff for agreed damages and interest thereon as claimed in the plaint. I would award costs of the appeal and in the High Court to the appellant.
So, in the absence of evidence that he was doing his own business, the reasonable presumption is that he was on his master's business.
It was not established that the employee was on a frolic of his own, for Mr Adriani said he did not know what Henry was doing on the Thika/Garissa Road.
Apply the decided cases and the general principles of the law and the result is that the respondent did not discharge as required, the burden cast on it.
Mere permission to drive is not enough to create vicarious responsibility for negligence.
I think that the true test can be expressed in these words: was the (servant) doing something that he was employed to do?
Issues in the judgment
#The judgment records judgment in default against the second defendant/driver as entered on May 14, 1977, but the judgment title and opening narrative describe the appellant suing 'the respondent and the driver jointly and severally' without mentioning this default judgment; the driver's status is clarified only in Nyarangi Ag JA's and Kneller JA's accounts.
Kneller JA, in the dissent, states the appeal Court decision in Kay v ITW Ltd with inconsistent citations, first as [1963] All ER 22 and later as [1967] 3 All ER 22.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndoo t/a Ngomeni Bus Service v Kakuzi Ltd [1984] KECA 26 (KLR)", Case Analysis (1984). Court of Appeal at Nairobi (appeal number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/26/eng@1984-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.