P.A. Okelo & M.M. Nsereko T/A Kaburu Okelo & Partners v Stella Karimi Kobia & 2 others [2012] KECA 246 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a construction company remained legally responsible for its driver's fatal accident even while working on a client's project.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who, between Salama and the resident engineer, was vicariously liable for the actions of the offending driver?
- 2.Whether the High Court properly applied the test of control in attributing vicarious liability
- 3.Whether special damages for funeral expenses were strictly proved
- 4.Whether the multiplier of 15 years applied in the assessment of loss of dependency was erroneous
Key legal issues
#Vicarious liability of a general employer where an employee and equipment are seconded to a hirer under a contract
Salama, as general employer of the driver, remained vicariously liable. The resident engineer merely had authority to tell the driver where and when to work, but had no control over how he executed his skill as a driver; the burden was on Salama to prove it had divested itself of control over both the object and the method of the work, which it failed to discharge.
Applying Churcher and Mersey Docks, the court held the test is whether the hirer had authority to control the manner of execution of the negligent act. The contract obliged Salama to provide vehicles and drivers; Salama insured the vehicle and paid the driver's salary, retaining insurable interest. The resident engineer's direction of tasks and use of the vehicle did not extend to the method of driving, which was the negligent act. The High Court misapplied the control test and relied on a letter of doubtful probative value not pleaded or admitted in agreed documents.
Evidential status of the letter dated 23rd June 1996 purporting to show the resident engineer hired its own driver
The letter was a 'mysterious aberration' of doubtful probative value: its original and author were never availed for cross-examination, it was not mentioned in the statement of agreed issues or the Notice to Admit documents, and Salama in any event admitted complicity in the hiring of the driver, which could not vary the written contract terms.
The plaint specifically averred that the driver was Salama's employee and this was never specifically traversed; the defence was only that control shifted to the resident engineer. The purported letter did not appear in any agreed bundle of documents, so the trial judge's total reliance on it was a factual finding without valid basis, warranting interference on a first appeal.
Strict proof of special damages
The trial court's award of Shs.20,000 for funeral expenses (partially proved against a pleaded claim of Shs.30,000) disclosed no error; there may be special circumstances where supporting documents are unavailable yet common sense dictates the claim was incurred.
Special damages must be specifically pleaded and strictly proved, but the trial judge's common-sense approach in allowing a reasonable sum where only part of the funeral expenses was documented was upheld. The appeal against this award failed.
Interference with the multiplier applied in loss of dependency
The multiplier of 15 years was justified because the deceased, a 44-year-old private-sector employee of the resident engineer, had evidence from his employer that he would have worked until age 65; the public-service retirement age of 55 did not apply to him.
The court applied the principle from Kemfrom Africa v Lubia that quantum will be disturbed only where an irrelevant factor was considered, a relevant one omitted, or the award is so inordinately low or high as to be a wholly erroneous estimate. None was shown here.
Legal principles established
#- Vicarious liability is determined not by agreement between the general employer and the hirer but by whether the hirer had authority to control the manner of execution of the relevant acts; the general employer remains liable unless it proves it parted with control of both the object to be achieved and the method of performance.
- Parties are bound by their pleadings; an averment not specifically traversed is admitted, and a trial court cannot found liability on matters not raised in the pleadings or agreed documents.
- On a first appeal, the Court of Appeal must re-analyse and re-assess the evidence and reach its own conclusions while making due allowance for the fact that it did not see or hear the witnesses.
Court orders
#- 1.Set aside the decree of the High Court given on 31st March, 2003 and issued on 23rd June, 2003
- 2.Substituted an order that the sum of Shs.5,301,362/10 shall be paid by the 2nd respondent (Salama Construction Company Ltd) together with the costs of the suit before the High Court
- 3.Dismissed the suit against the third party (the appellant resident engineer) with costs
- 4.Ordered that each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Allowed the appeal on liability, holding that the driver was a servant of Salama and that Salama retained vicarious liability because the resident engineer had no control over the manner in which the driver executed his skill. Dismissed the challenge to the assessment of damages.
In my view, vicarious liability for the actions of the driver continued to operate against Salama and there was no basis for dismissing the suit against it.p. 10
Wrote the judgment
Concurred fully with the judgment of Waki, JA and proposed allowing the appeal in the terms set out therein.
I have read in draft the judgment of Waki, J.A. and I do concur with it fully and have nothing more to add. I would allow the appeal in terms proposed by him.p. 12
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3061 of 1997
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Challenge to the assessment of damages (special damages for funeral expenses and the multiplier of 15 years)
The trial judge's approach to funeral expenses disclosed no serious error, and the multiplier of 15 was supported by evidence that the deceased would have worked until 65 as a private-sector employee; the quantum findings attracted no basis for interference.
Costs
The 2nd respondent to pay the costs of the suit before the High Court; the suit against the third party dismissed with costs; each party shall bear its own costs of the appeal.
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.
I set aside the decree of the High court given on 31st March, 2003 and issued on 23rd June, 2003 and substitute therefor an order that the sum of Shs.5,301,362/10 shall be paid by the 2nd respondent in this appeal together with the costs of the suit before the High Court.
The appellant has failed in the challenge to the assessment of damages. In all the circumstances, therefore, each party shall bear its own costs of this appeal. It is so ordered.
In my view, vicarious liability for the actions of the driver continued to operate against Salama and there was no basis for dismissing the suit against it.
The onus was on Salama to prove that it had divested itself of both the object to be achieved under the contract but also the method of performing that contract, and that the resident engineer was in control of both. This they failed to do.
Parties are bound by their pleadings.
Issues in the judgment
#The judgment header states it is made under rule 31(2) of the Court of Appeal Rules 2010, although the appeal is from a 2003 judgment and the appeal proceedings refer to the pre-2010 rules; the text does not reconcile this date discrepancy.
Only two of the three judges listed in the coram (Waki and Onyango Otieno) delivered or signed judgments in the copy provided; no judgment of O'Kubasu, JA appears in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P.A. Okelo & M.M. Nsereko T/A Kaburu Okelo & Partners v Stella Karimi Kobia & 2 others [2012] KECA 246 (KLR)", Case Analysis (2012). Civil Appeal No. 183 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/246/eng@2012-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.