Chesire and another v HZ & Company Limited

 Court of Appeal, at Nakuru

 October 22, 1982

Law, Potter JJA & Kneller Ag JA

 Civil Appeal No 55 of 1981

Negligence - vicarious liability - liability of employer for employee’s negligence - employee hired to drive shoveller vehicle within construction camp and designated area - employee drove shoveller on main road to report accident to the police station - whether trip to the police station was within the scope of his employment - whether trip to police station was contrary to employer’s instructions - whether employer was vicariously liable - onus of proof to establish escape was in connection with employment - Fatal Accidents Act (Cap 32) - Evidence Act (Cap 80) Section 47A.

 In December 1979, the respondent’s vehicle, while being driven by its employee, collided with a motor-car owned by the first appellant and driven by one Chesire, who died as a result of the collision. Both the first appellant and a widow of the deceased filed separate suits claiming damages from the respondent. The suits were later consolidated. Among the issues for determination was whether the respondent’s employee had been acting in the course of his employment at the material time so as to make the respondent liable.

The respondent’s vehicle was a shoveller designed to scoop up earth and to deposit it into lorries. It was licensed to be driven on public roads like any ordinary motor vehicle.

The evidence for the respondent was that the employee driver had for an unknown reason driven the shoveller to a roadside camp occupied by other employees of the respondent where he was forced to reverse in flight after angry people cast stones at him for knocking down some overhead wires. As he reversed the shoveller to the main road, he knocked and seriously injured a man and thereafter drove for 36 kilometres to the nearest police station. It was during this journey that the shoveller was involved in seven collisions, two of which led to the consolidated suits. It was contended that the employee had been acting outside the scope of his duty and so the employer was not vicariously liable for his negligence.

The learned judge found that the employee had at the material time used the shoveller for personal transport purposes to report an accident and this purpose was not within the scope of his employment, and he dismissed the two suits. From that decision, the plaintiffs appealed and the defendants made a cross-appeal. Three witnesses had testified that the respondent’s employee had been in the habit of driving the shoveller on a public road and from quarry to quarry.

Held:

1. The onus of proving, on a balance of probabilities, that the employee was acting outside the scope of his employment was on the employer, which onus was not discharged.
2. The employee was in the habit of driving the shoveller on a public road and from quarry to quarry with the knowledge of the employer and he had not been issued any specific instructions not to do so. The shoveller was always therefore driven on the public road for duties auxillary to those of his employment. The respondent’s employee may have undertaken the journey to the police station to seek protection from the stone-throwing people but it was also to report to the police an accident he had caused in the course of his employment. Where a vehicle is negligently driven for the purposes of both the employer and a third party, the employer is liable.
3. Having regard to the evidence, in driving the shoveller to the police station, the employee had, at least in part, engaged in his employer’s business and the employer was accordingly liable for his employee’s negligence.
4. As regards the cross-appeal, the learned High Court judge had not misdirected himself in law in considering whether the employee had or had not been given specific instructions as to where he was required to perform his duties.
5. Admitting in evidence by consent a record of previous proceedings does not mean that all the contents of those proceedings automatically become evidence in subsequent proceedings.
6. (Obiter Law JA) the employee should have been called as a witness to shed more light on why he drove on the public road and to assist the employer to discharge his burden.

 Appeal allowed with costs. Cross appeal dismissed with costs.

Cases

1. McKean v Raynor Bros Ltd [1942] 2 All ER 650 at p 652 Disapproved
2. Muwonge v Attorney General of Uganda [1967] EA 17 Applied & Approved
3. Limpus v London General Omnibus Company [1862] 1 H & C 526 Referred
4. A & W Hemphill Ltd v Williams [1966] 2 Lloyd’s LR 101 Approved
5. Jivandas & Co Ltd v Nakadama [1972] EA 489 Applied

Texts

 RF Heuston, Salmond on the Law of Torts, Sweet & Maxwell: London, 13th Edn (1961) p 133

Statutes

1. Fatal Accidents Act (Cap 32)
2. Evidence Act (Cap 80) Section 47A
3. Traffic Act (Cap 403) Sections 2, 73

Advocates

1. Mr AB Shah & Mr KM Patel for Appellants
2. Mr Barasa for Respondent

Kiungani Farmers Co Ltd v Mbugua

Court of Appeal, at Nakuru October 2, 1982

Madan, Potter JJA & Kneller Ag JA

Civil Appeal No 46 of 1982

(Appeal from the High Court at Eldoret, Mbaya Ag J)

Limitation of Actions - objection to suit by virtue of limitation – when limitation time when time begins to run - provisions of section 4(2) of the Limitation of Actions Act.

Contempt of Court - meaning of - whether one is in contempt where there is a stay of execution.

Civil Practice and Procedure - cause of action - when cause of action is not connected with original issues - trespass over land based on occupation over a void transaction.

The respondent acquired shares in the capital of the appellant company and consequently took possession of a certain parcel of land allotted to him as shareholder. The appellant company thereafter evicted the respondent from the land and prosecuted him for trespass. The respondent instituted a suit against the company and the trial court held that the respondent was unlawfully evicted and that he had suffered damages. The appellants have appealed against this decision arguing inter alia that the eviction was lawful, the respondent was not entitled to damages because he was in contempt; the plaint ought to have been dismissed because the appellants agents were not enjoined and that the damages were awarded contrary to the provisions of the Land Control Board (cap 302).

Held:

1. The allotment of shares to the respondent by the appellant company was a dealing in agricultural land contrary to the Land Control Act (cap 302) and therefore void under section 7 and the respondent could only recover the consideration paid by him to the company for shares.

2. The respondents cause of action was not connected with a void transaction concerning agricultural land and neither was it ousted because he was convicted of trespass.

3. The cause of action arose out of the trespass to his person and property and even though he had no right to the land he was entitled to be allowed to move out peacefully taking his property with him.

4. The respondent was not in contempt of court because the court has granted a stay of execution against his eviction.

5. The failure by the respondent to enjoin the servants and agents of the appellant company does not render the plaint defective, since he had already enjoined the employer.

6. The appellant cannot be allowed to rely upon the law of limitation because it did not specifically plead it as required by order VI rule 4 of the Civil Procedure Rules, furthermore the plaintiffs cause of action accrued when it became crystallized in 1973 and he instituted the suit in 1976 well within the limitation period of 3 years as prescribed by section 4(2) of the Limitation of Actions Act (cap 22).

Cases

Iga v Makerere University [1972] EA 65

Statutes

1. Trespass Act (cap 294) section 3(1)

2. Land Control Act (cap 302) sections 6, 7

3. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 4

4. Limitation of Actions Act (cap 22) section 4(2)

Ugenya Bus Services v Gachoki

Court of Appeal, at Nakuru October 2, 1982

Madan, Potter JJA & Kneller Ag JA

Civil Appeal No 66 of 1981

(Appeal from the High Court at Nakuru, Mead J)

Damages - general damages - compensation for damage to motor vehicle - motor vehicle belonging to a third party - whether respondent entitled to damages where he does not own the vehicle.

Damages - special damages - assessment of - reference to award made five years previously - whether judge entitled to make his own assessment.

Damages – general damages – for personal injuries – leg and shoulder fractures, lacerated wound on hand, amputation of right leg – quantum of damages.

Following a road accident in which the respondent’s vehicle was struck from the rear by the appellant’s omnibus, the respondent suffered fractures in his right leg and shoulder and a lacerated wound over his right hand. For these injuries, the respondent was hospitalized for about two months and his right leg was amputated.

In the respondent’s suit against the appellant, the High Court originally entered ex parte judgment for the respondent for Shs 130,000 in special damages. The ex parte judgment was later set aside and a trial was held. When judgment was delivered about five years later, the Court, “taking account of inflation”, made an award of Shs 200,000 together with special damages representing the purchase price of the respondent’s vehicle.

The appellant appealed contending that the judge erred in increasing the award of special damages, that the award was excessive and that since the vehicle never belonged to the respondent, he should not have been awarded compensation for damage to it.

Held:

1. The respondent was entitled to compensation for the damage to the car because the property in that car passed to him when the car was delivered to him and, in any event, the loss was his because he would have to make good the damage to any other owner.

2. In his award for special damages, the judge had made it clear that he was expressing his opinion about an award made about five years previously and he was entitled to make his own assessment, be it more or less, on the date of his decision.

3. The award of Shs 200,000 for the respondent’s injuries, pain and suffering and loss of amenities was not excessive.

4. The trial judge was right to hold on the evidence before him that the appellant’s driver was solely responsible for the accident and that the respondent did not contribute in any way.

Cases

Mutuya v Mbika & another High Court Civil Case No 442 of 1980 (unreported)

Statutes

No statutes referred.

Advocate

Mr Owuor for the Appellant.

Criminal law - murder contrary to Section 203 of the Penal Code -defences - murder - defence of insanity and of provocation - preliminary inquiry showed accused was schizophrenic - accused found to be normal on second examination - onus of proof where insanity is pleaded - evidence that accused mentally confused but n ot insane - no evidence of provocation - accused convicted and sentenced to death - whether conviction proper.

The appellant was charged with the murder of his wife who he had killed together with his son by striking them with an axe. The learned judge, upon being informed that the defence would be one of insanity, authorized that the appellant undergo a mental examination. A preliminary inquiry had earlier been conducted in which it was stated that the appellant may have suffered from schizophrenia at the time of committing the killings. Three days after the killings, the appellant had made a statement to the police admitting to committing them, saying that he had done it because he had been very annoyed upon finding his wife making love with “another husband”. He stated further that he had committed the killings because sometimes his “head becomes bad”. At the trial, he also stated that he had committed the offence because he “was not normal”. His examining doctor, who was the appellant’s own witness, testified that he had found no evidence of mental illness and that the behaviour of mental confusion described by the appellant’s father and brother in their evidence did not amount to insanity. The doctor who had testified at the preliminary inquiry, however, had failed to appear at this hearing.

It was submitted for the appellant that there was a possibility that he was legally insane at the time of committing the offence, or, alternatively, that there was a possibility that he had acted under a provocation sufficient to reduce the charge to manslaughter. Of the three assessors, one had considered the appellant guilty but insane and the remaining two considered him guilty of the offence.

The appellant was convicted of the offence of murdering his wife and sentenced to death. He then

appealed to the Court of Appeal.

Held:

1. An accused person has to raise the defence of insanity as per Section 12 of the Penal Code (Cap 63) and bear the onus of having to prove that insanity on a balance of probabilities. 2. There was no reason found to differ with the trial judge’s finding that there was no evidence that the appellant’s wife had been unfaithful to him and certainly no evidence that he had caught her in an act of adultery and that there was no evidence in support of the defence of provocation. 3. There was no doubt that the conclusion of the trial judge that the appellant was not suffering from any mental disease at the time of the offence, was correct. 4. The court was concerned that the appellant’s history of possible mental illness may not have been well investigated and this concern should be conveyed to those responsible for advising the president on the exercise of the prerogative of mercy. Appeal dismissed. Cases No case referred to. Statutes www.kenyalawreports.or.ke Penal Code, Cap 63 Section 12, Section 207 and Section 208 Advocates Mr Onganyi for Appellant Mr Etyang for Prosecution