Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 270 of 2016· [2020] KECA 480 (KLR)

Amalgamated Logistics International Ltd & another v MMK [2020] KECA 480 (KLR)

Court of Appeal of Kenya
24 July 2020
Mohamed Abdulahi WarsameM. WarsamePKP. O. KiageSKS. Gatembu Kairu
3,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal held an employer fully liable for its driver's accident even though the driver was never sued, cutting the payout only slightly to Ksh. 16.4 million.

What this practically means

#

Executive summary

#
The respondent, MMK, a schoolgirl rendered paraplegic with 100% disability after a road traffic accident on the Nairobi–Limuru road on 5th December 2010, obtained judgment against the appellants in the High Court (Sergon, J) awarding Kshs. 17,722,004, including general damages, special damages, loss of earning capacity and future medical expenses. The trial judge found the appellants wholly liable, holding that liability could not be apportioned to the driver of the Toyota, who was not joined as a party. On appeal, the appellants contended that the 2nd appellant was not the driver of the truck, that the 1st appellant could not be vicariously liable for the unsued driver David, and that the quantum was excessive. The Court of Appeal, in a single judgment of the court (Warsame, Kiage and Gatembu Kairu, JJ.A), framed three issues: liability, the apportionment of 100% liability, and excessiveness of the award. It held the 1st appellant vicariously liable for the driver's negligence in the course of employment irrespective of non-joinder, reaffirming that no suit is defeated by non-joinder of a party. It upheld the 100% liability finding, agreeing the trial judge properly preferred the inquest findings and investigation report over the Police Constable's expert evidence, and disbelieving the 2nd appellant's contradictory testimony. On quantum, the Court found the award faultless save for the multiplier of 35, which it reduced to 30, yielding a net award of Kshs. 16,424,004. The appeal therefore only partially succeeded; the appellants were ordered to pay the respondent the costs of the suit and half the costs of the appeal.

Key legal issues

#
01

Vicarious liability of the 1st appellant for the driver's negligence notwithstanding that the driver was not sued

Holding

The 1st appellant was vicariously liable because the driver was its employee/agent acting in the course of employment; non-joinder of the driver does not defeat the claim.

Reasoning

Applying Salmond on Torts and the test in Joseph Cosmas Khayigila v Gigi & Co Ltd, the Court found it undisputed that David was driving the truck on the 1st appellant's instructions, delivering a coffee consignment from Kampala to Mombasa. His negligence occurred in the course of his duties, attaching liability to the 1st appellant. The contention that the driver's non-joinder invalidated the suit was rejected as a suit cannot be defeated by non-joinder.

p. 4
02

Whether the trial court erred in holding the appellants 100% liable

Holding

The finding of 100% liability was upheld; the Police Constable's expert evidence was contradicted by other evidence and the inquest findings, and the 2nd appellant was found not credible.

Reasoning

The investigation report by PW1 indicated the Toyota was hit from the rear, and DW4 testified the truck had no rear damage, undermining the tyre-burst theory. The 2nd appellant gave contradictory evidence about the point of impact, which the trial judge disbelieved. The inquest, which recommended prosecution of the driver, properly persuaded the trial judge. The appellants' failure to join David also precluded complaint about the apportionment.

p. 4
03

Whether the award of Ksh. 17,722,004 was manifestly excessive

Holding

The award was upheld except for the multiplier of 35, which was reduced to 30, producing a net total of Ksh. 16,424,004.

Reasoning

The Court was conscious that an appellate court should not substitute its own views for the trial court's merely because it is higher. It found the award faultless apart from the multiplier, and, considering the respondent's age (17 at the accident) and the uncertainty of her future prospects, reduced the multiplier to 30 and recomputed the heads of damages accordingly.

p. 5

Legal principles established

#
  • A master is vicariously liable for the torts of his servant committed in the course of employment irrespective of whether the servant was joined as a party to the suit.
  • No suit shall be defeated by reason only of the misjoinder or non-joinder of a party.
  • A first appellate court must re-evaluate, re-assess and re-analyse the entire record but exercises that jurisdiction with caution, and will not interfere merely because it might have reached a different conclusion.
  • An appellate court should not substitute the views of the trial court with its own simply because it is hierarchically higher.
  • A party who deliberately elects not to join a person as a party cannot later complain of an adverse finding attributable to that non-joinder.

Court orders

#
  1. 1.The multiplier of 35 applied by the learned Judge is set aside and reduced to 30
  2. 2.The award is amended to a net total of Ksh. 16,424,004 (general damages for pain and suffering Ksh. 6,000,000; loss of earning capacity Ksh. 3,600,000; special damages Ksh. 176,004; diapers Ksh. 1,080,000; wheelchair Ksh. 480,000; nursing care Ksh. 3,600,000; special bed Ksh. 300,000; physiotherapy Ksh. 1,188,000)
  3. 3.The appellants shall pay to the respondent the costs of the suit and half of the costs of this appeal

Authorities

#

Cases cited (11)

  • PETERS VS. SUNDAY POST LIMITED
    [1958] EA 424
  • ABOK JAMES ODERA T/A A. J. ODERA & ASSOCIATES V JOHN PATRICK MACHIRA T/A MACHIRA & CO. ADVOCATES
    [2013] eKLR
  • SELLE -VS- ASSOCIATED MOTOR BOAT CO.
    [1968] EA 123
  • JOSEPH COSMAS KHAYIGILA V GIGI & CO. LTD & ANOTHER
    Civil Appeal No. 119 of 1986
  • TEACHERS SERVICE COMMISSION V WJ & 5 OTHERS
    [2020] eKLR
  • KENYA BUS SERVICES LTD V DINA KAWIRA HUMPHREY
    [2003] eKLR
  • EQUATOR DISTRIBUTORS V JOEL MURIU & 3 OTHERS
    [2018] eKLR
  • ATTORNEY GENERAL V KENYA BUREAU OF STANDARDS & ANOTHER
    [2018] eKLR
  • BOARD OF GOVERNORS OF KANGUBIRI GIRLS HIGH SCHOOL & ANOTHER V JANE WANJIKU MURIITHI & ANOTHER
    [2014] eKLR
  • SKY SECURITY SERVICES V ISAAC KIIRU KING’ORI
    [2016] eKLR
  • WEST (HI) & SONS LIMITED V SHEPHERD
    (1964) AC 326
On appeal from
High Court of Kenya at Nairobi
HCCC No. 238 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Amalgamated Logistics International Ltd & another v MMK [2020] KECA 480 (KLR)", Case Analysis (2020). Civil Appeal No. 270 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/480/eng@2020-07-24

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