Nandwa v Kenya Nazi Ltd [1988] KECA 42 (KLR)
The bottom line
#Kenya's Court of Appeal held an employer fully liable for injuries caused by a defective company vehicle it failed to maintain.
What this practically means
#Executive summary
#Key legal issues
#Employer's liability for a defective vehicle used on the road
The defendant employer was held entirely negligent for allowing a defective motor vehicle to be used on the road, the plaintiff having done what a reasonable driver could do.
The plaintiff noticed the steering defect ten minutes before the accident, alerted his companion, and drove at a moderate speed. The defence witnesses corroborated his account. No vehicle inspection or police report existed, the maintenance book was not produced, and the earlier driver who could have reported defects was not called. The evidence of mechanical failure was unmet by the defence.
Duty to maintain vehicles under the Road Traffic Act and duty of care to employees
It was the defendant's duty to keep its vehicle in good mechanical repair and to provide a safe system of work; its inspection system did not cover the eventuality in this case.
Platt JA held that the defendant, as owner, was under a statutory duty under the Road Traffic Act to keep the vehicle in good repair and a common-law duty of care not to expose the plaintiff employee to risk. Failure of maintenance amounted to failure to take precautions for the employee's safety, even if 'permitting' with knowledge was not made out.
Burden of proof and res ipsa loquitur
The formal burden of proof does not shift, but a prima facie inference of negligence suffices unless the defendant provides an adequate answer; res ipsa loquitur itself was not applicable as there was direct evidence of the cause.
Relying on Henderson v Henry E Jenkins & Sons, the court held that once the plaintiff proved facts raising a prima facie inference of negligence in inspection or maintenance, the defendant had to displace it, which it did not. Res ipsa loquitur was inapplicable because there was direct evidence of mechanical failure, though the proven facts spoke for themselves.
Contributory negligence in overtaking
There was no negligence in overtaking another vehicle when it was safe to do so and no oncoming traffic; no contributory negligence was established.
The court rejected the respondent's submission that the appellant's act of overtaking was negligent. Overtaking is a normal procedure where circumstances and road conditions permit, and there was no oncoming vehicle. No evidence supported contributory negligence.
Legal principles established
#- An employer who allows a defective motor vehicle to be driven on the public road is liable in negligence for resulting injury, even in the absence of knowledge of the defect.
- The formal burden of proof in negligence does not shift, but a prima facie inference of negligence suffices unless the defendant gives an adequate answer to displace it.
- Evidence need not be pleaded; the doctrine of res ipsa loquitur is a rule of evidence affecting the onus of proof.
- Overtaking another vehicle when it is safe to do so is not negligence.
Court orders
#- 1.Appeal allowed; judgment of the High Court dismissing the plaintiff's claim set aside
- 2.Judgment substituted for the plaintiff that the defendant is entirely negligent for allowing a defective motor vehicle to be used on the road, resulting in the accident and the plaintiff's injuries
- 3.Costs of the appeal and of the High Court awarded to the appellant; taxed costs to carry interest from the date of taxation to payment in full
- 4.Agreed damages to carry interest from the date of judgment to the date of payment in full at court rates
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory appeal; specific provision not stated)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jonathan Kamau Kiongo v John Kinyanjui Waweru & 1 other[2026] KECA 826 (KLR)30 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Nandwa v Kenya Nazi Ltd [1988] KECA 42 (KLR)", Case Analysis (1988). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/42/eng@1988-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.