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Court of AppealDismissedCivil Appeal No. 9 of 2004

Kenya Horticultural Exporters Ltd v Julius Munguti Maweu [2010] KECA 359 (KLR)

Court of Appeal
26 March 2010
SBS.E.O. BosireEGE.M. GithinjiJNJ.G. Nyamu
2,499 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an employer who lends a vehicle to its employee must prove any restrictions on its use, or answer for accidents.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi by Kenya Horticultural Exporters Ltd against a judgment of Nambuye J (High Court, Machakos, H.C.C.C. No. 75 of 1997, delivered 27th June 2003) awarding the respondent, administrator of the estate of Laban Kioko Munguti, Kshs. 1,416,328 as damages under the Law Reform Act and the Fatal Accidents Act following the death of the deceased in a road accident. The deceased was a passenger in an open pick-up driven by the appellant's farm manager, Dominic Mbithi, on a sight-seeing trip on a public holiday, without payment and without the appellant's express authority. The appellant raised three broad grounds: absence of vicarious liability for the driver's conduct outside his employment, absence of proof of negligence, and the reasonableness of a multiplier of 18 years for the deceased's 70-year-old mother. The court, per a single judgment of the whole bench (Bosire, Githinji and Nyamu, JJA), dismissed the appeal. It held that whether the driver had authority to use the vehicle for social purposes was a fact especially within the employer's knowledge, so that under section 112 of the Evidence Act the burden lay on the appellant, which having called no evidence at trial could not escape the inference of unrestricted use. Negligence was established by eyewitness evidence of overspeeding, and the multiplier and multiplicand were within the trial judge's discretion, supported by the principles in Kemfro Africa v A.M. Lubia. The decision below was affirmed in its entirety, with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was a basis or proper basis for holding the appellant vicariously liable for the negligence, if any, of the driver of its vehicle which at the material time was not being driven for the employer's direct benefit
  2. 2.Whether the accident occurred as a result of negligence on the part of the appellant's driver
  3. 3.Whether the multiplier of 18 years on the head of loss of dependency was reasonable where the deceased's mother was about 70 years old
  4. 4.Whether the multiplicand (50% of the deceased's income) was a proper basis for the award of loss of dependency

Key legal issues

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01

Vicarious liability for an employee's use of the employer's vehicle outside working hours

Holding

Whether the driver had authority to use the vehicle for social purposes was a question of fact especially within the employer's knowledge; the employer's failure to call evidence justified the inference that use of the vehicle was authorized, including for personal purposes, and the employer was vicariously liable

Reasoning

The employer gave the vehicle to its driver, a farm manager, and alone knew of any conditions or restrictions on its use. Section 112 of the Evidence Act placed the burden of proving or disproving such restrictions squarely on the employer, which elected to call no evidence. The trial judge was therefore entitled to infer absence of restrictions and to hold both employer and employee responsible for the safety of passengers invited into the vehicle.

p. 3
02

Negligence - cause of the accident

Holding

The evidence of the sole eyewitness, that the driver negotiated a bend at high speed despite a caution, established negligence; a possible tyre burst did not displace this where the burst could be inferred to have arisen while the vehicle was being driven at high speed

Reasoning

Maundu testified that the driver was overspeeding and ignored his caution before negotiating a bend at high speed. That evidence clearly showed the driver was to blame. The court held it immaterial that there could have been a tyre burst, since if the burst arose while the vehicle was being driven at high speed that could be inferred from the evidence. No basis existed for interfering with the trial court's finding on liability.

p. 4
03

Interference with the multiplier on loss of dependency

Holding

The multiplier of 18 years was not unreasonable: eight years had elapsed between death and judgment, and the trial judge who saw the mother was entitled to find she could live a further 9 or so years

Reasoning

An appellate court exercises only a limited supervisory role over discretionary awards of damages. The deceased died in October 1995; by the date of trial over seven years had elapsed and judgment was delivered eight years after death, so at least a multiplier of 8 was available. The trial judge had seen the deceased's mother testify and was satisfied she was strong enough to live a further 9 or so years after judgment, and had ample evidence for the figure of 18.

p. 4
04

The multiplicand - the 50% dependency ratio

Holding

On the unique facts of the case - an unmarried deceased with a mentally ill mother requiring regular medication and special attention - the trial judge was right to conclude that the deceased probably spent half his net salary on her

Reasoning

The appellant argued it was not usual for a person to spend half his income on his mother, particularly with employed siblings. The court observed that the respondent may have been chipping in, but the facts were unique: the deceased was unmarried and his mother was a mental patient on regular medication needing special attention. The trial judge's conclusion on the 50% rate was therefore not disturbed.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal has a duty to re-evaluate the evidence and make its own conclusions while bearing in mind that it neither saw nor heard the witnesses
  • In civil proceedings, where a fact is especially within the knowledge of a party, the burden of proving or disproving that fact lies on that party; an employer who fails to testify about restrictions on an employee's use of a vehicle risks an adverse inference
  • An appellate court will only disturb the quantum of damages awarded by a trial judge where the judge took into account an irrelevant factor, left out a relevant one, or the award is so inordinately low or high that it is a wholly erroneous estimate of the damage

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 75 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over decisions of the High Court (no specific constitutional/statutory provision expressly invoked in the judgment)

Relief refused

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Setting aside the finding of vicarious liability against the appellant

The appellant, having given the vehicle to its driver, bore the burden under section 112 of the Evidence Act of proving any restrictions on its use and called no evidence

p. 3

Interference with the multiplier of 18 years on loss of dependency

The trial Judge had seen the deceased's mother and had ample evidence that she could live for a further 9 or so years after judgment

p. 4

Reduction of the multiplicand (the 50% dependency ratio)

The facts were unique - the deceased's mother was a mental patient needing special attention and the deceased was probably spending half his net salary on her

p. 4

Costs

The appeal was dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result we order that it be and it is hereby dismissed with costs.
p. 4Final orders - dismissal of the appeal
In civil proceedings when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
p. 3Burden of proof - section 112 of the Evidence Act
We find no basis for interfering with the superior court judgment on liability.
p. 4Vicarious liability upheld on first appeal
We find no basis for interfering with the multiplier. The trial Judge was entitled to and had ample evidence before her to come to that figure.
p. 4Multiplier of 18 years upheld

Issues in the judgment

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minor

The judgment gives the accident vehicle's registration as KXI 424 in the first ground of appeal but as KXZ 424 in the narration of the plaint

minor

The judgment records the de ceased's mother as 'about 70 years old' at the time of trial in February 2002 in the framing of the issues, but later states she was 70 at trial and about 63 at the date of the accident; the ground of appeal itself describes her as about 70

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Horticultural Exporters Ltd v Julius Munguti Maweu [2010] KECA 359 (KLR)", Case Analysis (2010). Civil Appeal No. 9 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/359/eng@2010-03-26

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