Anyanzwa V Gasperis  EKLR
|Civil Appeal 31 of 1981
|29 Dec 1981
Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter
Court of Appeal at Nairobi
Anyanzwa v Gasperis
Anyanzwa v Gasperis  eKLR
Anyanzwa v Gasperis
Court of Appeal, at Nairobi December 29, 1981
Law, Miller & Potter JJA
Civil Appeal No 31 of 1981
Negligence - vicarious liability - principal and agent – liability of principal for negligent driving of agent - driver employed by hirer of motor vehicle - circumstances under which owner can be liable for agent’s negligence - whether owner is vicariously liable for negligence of driver employed by hirer.
Insurance - motor insurance - third party risks – driver authorized - liability of insurer to satisfy damages.
A tours and travel company hired a motor vehicle from its owners to carry a party of tourists. The hiring company employed its own driver to drive the hired vehicle. The vehicle overturned and injured some of the tourists. The injured tourists filed a suit against the hirers of the vehicle, and the owners of the hired vehicle, but did not sue the personal representative of the driver (the driver having been killed in the accident). The defence was, among other things, that the hirers were not at the material time agents of the owners of the vehicle, or acting with prior consent and authority of the owners, and could not, therefore, be made liable, as owners of the vehicle, for the negligence of the driver employed by the hirers of the vehicle.
1. For one to establish vicarious liability it must be shown that the agent at the material time was acting on the owner’s behalf and for the owner’s benefit. Mere knowledge or permission of the owners is not enough to establish vicarious liability.
2. The owners were not vicariously liable for the driver’s negligence, because the driver was not driving the vehicle at their request, or as their servant, and they had neither delegated any task/ duty to him nor had they any interest, concern or control over it or the driver at the material time; furthermore the vehicle was not at the material time being driven for their benefit.
3. A third party who has been injured by the negligent act of a driver of an insured motor vehicle of another person may have his damages satisfied by the insurer of that motor vehicle, only if the driver (or if he is deceased, then his personal representative) was joined as a defendant, his negligence established and judgment obtained against the driver or his employer. It is also conditional that the insured motor vehicle was at the material time being driven by the driver as an authorized driver within the terms of the policy of insurance.
1. Selle & Another v Associated Motor Boat Co Ltd  EA 123 (CA-Z)
2. Morgans v Launchbury & Others  2 All ER 606 (HL-E)
3. Hewitt v Bonvin & Another  1 KB 188 (CA-E)
4. Cooke v Santos Maquel & Another High Court of Kenya at Mombasa Civil Case No 250 of 1973 (unreported)
Civil Procedure Act (Cap 21) Order IV rule 1(5)
Civil Procedure Rules (Cap 21, Sub Leg) Order IV rule 1(5)
Mr IT Inamdar for Appellant
Mr Ogango for Respondent