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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment as provided· [2025] KECA 166 (KLR)

Bm Security Limited v Joseph Macharia Kibira & 1 other

Court of Appeal of Kenya
7 February 2025
2,527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed an employer isn't automatically liable when an employee uses a work vehicle for personal gain outside his job.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Warsame, Mativo and Gachoka JJAA) allowed a second appeal on the doctrine of vicarious liability. The 1st respondent, while waiting to board a matatu to Nakuru in January 2012, accepted a lift from the 2nd respondent, a driver of a security alarm-response vehicle owned by the appellant, on payment of a fee in tea. The vehicle overturned at Elburgon and the 1st respondent suffered a fractured right scapula and shoulder sprain. The trial magistrate found the driver liable but absolved the employer, holding that the driver acted solely for his own interest. On first appeal, the High Court reversed, holding the employer vicariously liable even if the driver acted contrary to instructions and for his own benefit. The Court of Appeal, confining itself to issues of law as a second appellate court, applied the two-limbed test from Minister of Police v Rabie as adopted in Tabitha Nduhi Kinyua: subjectively, the driver acted wrongfully solely for his own purposes, hoping to enjoy tea; objectively, the deviation bore no connection to the employer's business. The court adopted the Privy Council's classification in Goh Choon Seng, placing the case in the first category where the servant uses the master's time and vehicle for his own purposes. The 1st respondent's ignorance of the employer-driver agreement was irrelevant; the vehicle was branded and he knew it was not a public service vehicle. The court set aside the High Court judgment, reinstated the trial magistrate's judgment, and ordered the 1st respondent to pay the appellant's costs of the appeal.

Key legal issues

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01

Whether the employer is vicariously liable for an employee's negligent act committed for the employee's own benefit and outside the scope of employment

Holding

The employer is not liable; the driver's carrying of an unauthorised passenger for a personal fee was a frolic of his own using the master's time and vehicle, wholly outside the scope of his employment.

Reasoning

Applying the two-limbed Minister of Police v Rabie test as adopted in Tabitha Nduhi Kinyua, the subjective limb asks whether the employee acted solely for his own purposes, and the objective limb asks whether any deviation was closely connected to the employer's business. Here the driver gave the lift hoping to enjoy 'tea' for his own benefit, with no connection to the employer's security business, so liability cannot attach.

p. 4
02

Whether the 1st respondent's ignorance of the contractual prohibition between employer and driver defeats the employer's defence

Holding

The 1st respondent's lack of privity to or knowledge of the employer-driver agreement is irrelevant; the decisive question is whether there were factors, by word or conduct, indicating that the driver had authority to give lifts to strangers. There were none.

Reasoning

The court held the fact that instructions were written or oral does not affect the legal position. The vehicle was branded, the 1st respondent admitted knowing it was not a public service vehicle, and therefore had no reason to believe the driver had authority to carry passengers. Any claim of ostensible authority would have had to be proved by the 1st respondent.

p. 4
03

The scope of the second appellate court's jurisdiction

Holding

As a second appellate court, the Court of Appeal's jurisdiction is limited to issues of law only.

Reasoning

Citing Kenya Breweries Ltd v Godfrey Odoyo, the court confined itself to the legal question of vicarious liability, not a re-evaluation of facts. The appeal turned on whether, as a matter of law, the employer was vicariously liable for the driver's unauthorised carriage of a passenger.

p. 3

Legal principles established

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  • An employer is not vicariously liable where an employee, without the employer's knowledge or permission, uses the employer's time and vehicle solely for his own purposes and personal gain; such conduct falls outside the scope of employment.
  • It is an error of law to hold that a master is always vicariously liable for the negligence of an employee regardless of whether the employee acted contrary to lawful instructions or for his own benefit.
  • The burden of proving that an employee had ostensible authority to ferry passengers lies on the party asserting it.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the learned Judge of the High Court is set aside
  3. 3.The judgment of the trial magistrate reinstated
  4. 4.The 1st respondent shall pay the costs of this appeal to the appellant
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Second appellate jurisdiction under the Court of Appeal's appellate powers; the court stated 'As a second appellate court, our jurisdiction is limited to considering issues of law only' (See Kenya Breweries Ltd. v Godfrey Odoyo [2010] eKLR)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bm Security Limited v Joseph Macharia Kibira & 1 other", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/166/eng@2025-02-07

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