Mount Elgon Hardware v United Millers Ltd [1996] KECA 106 (KLR)
The bottom line
#The Court of Appeal dismissed the hardware firm's claim because it never pleaded the negligence facts it wanted to prove at trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant, having failed to plead particulars of negligence in its plaint, could rely on allegations of negligence at trial and on appeal
- 2.Whether the appellant's failure to traverse the particulars of negligence pleaded in the respondent's defence amounted to an admission of that negligence
- 3.Whether Patrick Wafula, who drove the respondent's lorry at the time of the accident, was a servant or agent of the respondent so as to attract vicarious liability
Key legal issues
#Pleading of particulars of negligence
The appellant's claim failed because it did not plead particulars of negligence in its plaint, contrary to Order VI Rule 8(1) of the Civil Procedure Rules, and could not prove unpleaded negligence
The court held that particulars of negligence must be specifically pleaded as required by Order VI Rule 8(1) of the Civil Procedure Rules, citing Mukasa v Singh. A party alleging negligence bears the duty to prove it, and cannot be permitted to prove matters not pleaded. The trial judge correctly so observed, and this alone disposed of the appeal.
Admission by non-traversal of pleaded negligence
The appellant's failure to file further pleadings traversing the particulars of negligence in the respondent's defence amounted to an admission of that negligence under Order VI Rule 9(1)
The respondent denied negligence and in turn pleaded particulars of negligence against the appellant. The appellant wholly failed to traverse those particulars by any further pleadings. The court held the learned judge was perfectly entitled to conclude that the appellant had admitted the negligence alleged in the defence in terms of Order VI Rule 9(1) of the Civil Procedure Rules.
Vicarious liability for unauthorised driver
Patrick Wafula, who drove the lorry at the material time, was neither a servant nor agent of the respondent nor driving for its benefit, so no vicarious liability arose
The respondent's driver handed the keys to the loader pending arrival of a replacement driver dispatched from Kisumu. The loader allowed Patrick Wafula, unauthorised, to drive the vehicle. Even if the handing-over of keys was authorised, the respondent could not reasonably have contemplated Wafula driving the vehicle to Bungoma, having sent a replacement driver; the trial judge's conclusion was unassailable.
Legal principles established
#- In claims involving allegations of negligence, the particulars of negligence must be specifically pleaded, and a party cannot be allowed to prove that which he has not pleaded
- Where a defendant pleads particulars of negligence and the plaintiff fails to traverse them by further pleadings, the plaintiff is taken to have admitted those particulars under Order VI Rule 9(1) of the Civil Procedure Rules
- An employer is not vicariously liable for the driving of an unauthorised person where the employer could not reasonably have contemplated that eventuality, having dispatched a replacement driver
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- H.C.C.C. No. 43 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act/rules (appeal from the decree of the High Court)
Relief refused
#The appellant's appeal against the High Court decree founded on negligence and vicarious liability
The appellant failed to plead particulars of negligence, admitted by non-traversal the negligence pleaded in the respondent's defence, and could not show that Patrick Wafula was the respondent's servant or agent
Costs
Appeal dismissed with costs to the respondent
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.
It is elementary learning that in claims involving allegations of negligence. The particulars of such negligence must be specifically pleaded
It is still the duty of a party alleging negligence to prove the same and a party cannot be allowed to prove that which he has not pleaded.
the learned Judge was perfectly entitled to conclude that the appellant had admitted the negligence alleged in the defence, in terms of Order VI Rule 9 (1) of the Civil Procedure Rules
As we have said, there is no merit this appeal and our order is that it be and is hereby dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mount Elgon Hardware v United Millers Ltd [1996] KECA 106 (KLR)", Case Analysis (1996). Civil Appeal No. 19 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/106/eng@1996-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.