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Court of AppealPartially AllowedCivil Appeal No. 413 of 2017· [2020] KECA 952 (KLR)

The Board of Governors St. Mary's School v Boli Festus Andrew Sio

Court of Appeal
24 January 2020
WKW. KaranjaMartha Karambu KoomeM.K. KoomeSKS. ole Kantai
3,933 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a school hiring a bus with its own driver is not liable if that driver causes an accident.

What this practically means

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Executive summary

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The respondent, a teacher at St. Mary's School, was injured on 21st November 2000 when a bus hired by the school's Board of Governors to transport pupils and staff to and from a Mombasa trip was allegedly driven carelessly near Makindu, throwing him against the roof. The High Court (Aburili, J.) found the Board vicariously liable for the acts of the bus owner and driver and awarded general and special damages plus loss of future earnings. The Board of Governors appealed on seven grounds, principally that vicarious liability could not attach to a third party's negligence. The Court of Appeal, in a single judgment of the court, allowed the appeal. It held that the bus was hired from an unnamed owner who supplied the driver; the driver was therefore the owner's agent, not the school's, and the owner and driver fell within the independent-contractor doctrine under which an employer is not answerable for the contractor's negligence or that of his servants. Applying Selle v Associated Motor Boat Co, Pickard v Smith and Lalji Bhimji Sanghani v Chemilabs, the court held the trial judge erred in finding vicarious liability, particularly where neither the owner nor the driver had been joined. It further noted, in passing, that the respondent had already been compensated in a separate suit for his redundancy and could not make a further claim. The limitation issue was not live, Waweru J's unappealed ruling having settled it. The appeal was allowed, the High Court judgment set aside, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the appellant was vicariously liable for the negligence of the driver of a hired bus

Holding

No. The bus and driver were provided by an unnamed owner; the driver was the owner's agent, an independent contractor relationship in which vicarious liability cannot attach to the hirer.

Reasoning

The court restated the definition of vicarious liability and the rule in Selle v Associated Motor Boat Co that a principal answers for a servant or agent performing a task for the principal's benefit. It distinguished that from the independent-contractor rule in Charlesworth on Negligence, Pickard v Smith and Lalji Bhimji Sanghani v Chemilabs: an employer is not answerable for casual negligence of an independent contractor or his servants. The bus owner and driver fell within the independent-contractor category, and neither was joined as a party.

p. 4
02

Whether the respondent could claim again for injuries after being compensated in a prior suit for redundancy

Holding

No. Having been awarded damages by a competent court in CMCC No. 3200 of 2007, the respondent could not turn around and make another claim against the appellant.

Reasoning

The court noted in passing that the respondent had sued the appellant for being declared redundant and had been awarded damages by the Chief Magistrate's Court, which were paid. The trial judge was wrong to give further awards; the prior judgment barred a second claim arising from the same employment termination.

p. 4
03

Whether the limitation issue remained live

Holding

No. Waweru, J. had ruled the suit could be maintained on contract, and that ruling was not appealed, so those orders stand.

Reasoning

The appellant had sought striking out on limitation grounds, but the High Court (Waweru, J.) held the suit maintainable in contract though not in tort. That ruling was never reviewed or appealed, so the limitation point was not open on appeal.

p. 3

Legal principles established

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  • An employer who engages an independent contractor is not liable for torts committed by the contractor or the contractor's employees in the course of the work, subject to established exceptions (non-delegable duties, unlawful acts, special risk, absolute duties attaching to ownership of dangerous things).
  • Vicarious liability attaches only where the tortfeasor is the principal's servant or agent carrying out a task on the principal's behalf; a driver provided by the owner of a hired vehicle is the owner's agent, not the hirer's.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court (Aburili, J.) dated 14th September 2016 set aside
  3. 3.Each party to bear their own costs

Authorities

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Cases cited (4)

  • Selle & Another v Associated Motor Boat Company Limited & Others
    [1968] EA 123

    Vicarious liability where a task is delegated to an agent or independent contractor for the employer's or joint benefit.

  • Pickard v Smith
    (1861) 10 C.B. (N.S.) 470

    A person cannot be liable for an act or breach of duty not traceable to himself or his servants.

  • Lalji Bhimji Sanghani and Another v Chemilabs
    [1978] 3 eKLR

    A person is not liable for the negligence of a competent independent contractor.

  • Blake v Woolf
    [1898] 2 QB 426

    Quoted within Lalji Bhimji Sanghani for the independent-contractor rule.

On appeal from
High Court of Kenya at Nairobi
HC. C.C. No. 1085 of 2006
Jurisdiction invoked
First appeal from the High Court under appellate jurisdiction of the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "The Board of Governors St. Mary's School v Boli Festus Andrew Sio", Case Analysis (2020). Civil Appeal No. 413 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/952/eng@2020-01-24

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