1

Law of Tort in Kenya

Law of Torts

There are two types of civil wrongs, and we looked at the first of these - i.e. those
arising from a breach of contract. The second type of civil wrong arises from the
breach of a duty fixed by law, and owed to people
generally and is called a “Tort”. Purposes of tort law:

Like a breach of contract, the breach of a legal duty is (1) to provide a peaceful means
remedied by a civil action. The damages sought would be for adjusting the rights of parties
unliquidated damages, i.e. damages, the amount of who might otherwise take the
which would be fixed by the court (in court proceedings law into their own hands ;
this is called an “Unspecified amount claim”).
(2) to deter wrongful action;
The word “Tort” is an unusual one and conveys little
meaning to the layperson. It has two root sources. One is (3) to encourage socially

from Norman French, meaning “wrong”, which in turn responsible behavior; and,
springs from the Latin “Tortus” meaning “twisted” or
(4) to restore injured parties to
“wrung”.
their original condition, insofar
A “Tort” signifies a “wrong” recognised by law. It can be as the law can do this, by
differentiated from a “crime” (which is also a “wrong” in compensating them for their
law) as follows: injury.

The booklet will introduce you to: Tort embraces subjects such as:
Negligence Nuisance
the nature of tortuous liability Defamation; either Libel
(written) or Slander (spoken)
The “general defences” available to a claim in Tort Trespass which can be: to land
(i.e. those defences which will completely defeat i.e. entering on someone s land
such a claim) without permission): to the
person (i.e. assault, battery or
The persons who can sue and be sued in Tort, false imprisonment), or to goods
including: Vicarious liability and Occupiers’ (i.e. conversion, detention).
Liability.

specific torts, i.e. Negligence, Nuisance (both Public and Private), Trespass etc

The remedies that are available if successful.

Schools of thought
General principle of liability theory

2
This school of thought argues that all harm should be actionable in the absence of
just cause or excuse.

NOTE

Under this theory the law of tort would be forever growing and no cause of action
should be refused because it is new or novel.

Closed Law of Torts theory

The theory argues that the law should be a law of For a successful system of
specific, existing, torts (e.g. negligence, etc.), and Tort law to exist, it is
that no new torts should be created by the Courts necessary to have a
functioning insurance
- only by statute.
system. Insurance
companies are effectively
The basic pattern of Tort
the paymasters.

As a general principle, a claimant will only

succeed in tort if he can prove:

(a) That the defendant has infringed his legal rights (i.e. has committed a tort), and

(b) As a result he has suffered damage.

The paradigm tort consists of an act or omission by the defendant which causes
damage to the claimant. The damage must be caused by the fault of the defendant
and must be a kind of harm recognised as attracting legal liability.

This model can be represented:

act (or omission) + causation + fault + protected interest + damage = liability.

Example:

A drives his car carelessly with the result that B is injured and sustains personal
injuries. The act is A driving the vehicle. This act has caused damage to B. The
damage was as a result of A’s carelessness,
i.e. his fault. The injury suffered by B,
Only a very small per cent of all tort
personal injury, is recognised by law as
claims made go to court and far fewer
attracting liability. A will be liable to B in
go on appeal and appear in the law
the tort of negligence and B will be able to
reports.
recover damages.
Thus, most of the rules of law stated in
In tort, it is usually necessary for a law text- book s may bear little
claimant to establish both act or omission resemblance to the practice of tort
and damages to be able to succeed. law, particularly in the area of
personal injuries.
Exceptions

3
There are certain torts which do not require fault. These are known as torts of strict
liability.

Under strict liability one has a duty not to injure. It does not matter whether the
injury is caused negligently or not, whichever way you cause injury you will be liable.

In some cases the act or omission of the defendant may have caused damage to the
claimant but the claimant may have no action as the interest affected may not be one
protected by law. This is known as ‘damnum sine injuria’ or harm without legal
wrong.

Say for example A opens a shop that sells the same goods as B in the same street, and
then A reduces the price of his goods in order to drive B out of business. B will have
no legal recourse. Even though he has caused damage to B’s business, such interest
may not be protected by law.

There are also cases where conduct is actionable even though no damage has been
caused. This is known as ‘injuria sine damn’ and where a tort is actionable without
proof of damage it is said to be actionable per se.

An example would be the tort of trespass; thus, if X trespasses into Y’s property he
might be liable even though no damage was caused.

The following interests are protected:

Wrongs to persons:

1. Wrongs affecting safety and freedom of the person: Assault, battery, false
imprisonment.

2. Wrongs affecting personal relations in the family: Seduction, enticing away of

servants.

3. Wrongs affecting reputation: Slander and libel.

4. Wrongs affecting estate generally: Deceit, Malicious prosecution, conspiracy.

Wrongs to Property:

This includes torts such as trespass to goods and conversion. Where clothing or a car
is damaged in a negligently caused accident, then a person may have an action for
damages in negligence.

2. Interference with rights analogous to property, such as private franchises, patents,

copyrights.

Economic interests:

Generally this are not protected under torts.

4
States of mind in Torts

Most torts require at least one of the following states of mind: malice, intention and
negligence.

Malice

In law, the word “malice” has two meanings:

1. The intentional doing of an act without just cause or

excuse. In the cause of studying cases in
Torts you will encounter
2. The doing of an act with some improper motive. It concepts such as duty of care,
can be seen, therefore, that it has a different meaning remoteness of damages, fault,
in law than that which we usually give it. (i.e. “ill will” etc. When cases are analysed in
or the desire to do harm) these terms and there is held to
be no liability as there was no
NOTE
duty or the damage was too
In law, the word ‘malice’ essentially means the remote, or the defendant was not
‘intention’ to commit an act, and this applies to the law at fault, this is referred to as
of tort as well. formal conceptualism or black
letter law. What is frequently
With regard to the law of tort, the defendant’s
concealed in this terminology is
intentions (generally speaking) are irrelevant.
the policy reason behind the

Intention decision.

Prosser’s Handbook of the Law of Torts says that: Although as a lawyer you must
know the relevant rules of law,
‘Intention in tort law is not necessarily a hostile to have a deeper understanding
intent, or a desire to do any harm. Rather it is an of how law works in practice you
intent to bring about a result which will invade the must have a clear conception of
interests of another in a way that the law will not the policy issues which shape
sanction.’ legal decisions.

The meaning of intention varies according to the

context in which it is used.

Intention is relevant in three groups of torts:

1. Torts derived from the writ of trespass. Here intention means where a person
desires to produce a result forbidden by law and where they foresee it and carry on
regardless of the consequences.

2. In cases of fraud and injurious falsehood. In these torts the defendant must make a
statement which they know is untrue.

5
3 In cases of conspiracy. If A and B combine together and act to cause injury to C,
then C will have an action provided that they can prove that their primary motive was
to cause them damage.

Negligence

Negligence in tort has several meanings. It may refer to the tort of negligence or it
may refer to careless behaviour.

In the careless behaviour sense the standard set is an objective one. The court will
apply the test of what a ‘reasonable man’ would
have done in the defendant’s position.

Causation The setting of the

A connection must be shown between the standard in negligence
defendant’s breach of duty and the damage depends on what the
suffered by the plaintiff. objective of the
We say that a person’s act caused harm if the negligence formula
harm would not have occurred had the person is. If the objective is to
not committed the act. That is X is a cause of Y if compensate the claimant
Y would not have occurred ‘but for’ X.
for their loss, then it is
Question clearly in the claimant s
What should be the main objectives of Tort interests to set the
Laws? standard as high as
a) Compensation possible. But if the
objective is to deter the
b) Deterrence
defendant, then it is
c) Punitive counter-productive to set
Pick your option (s) and Support your answer a standard
with cases and academic treatises. which is too high to be
attainable.

6
Who is liable in Tort?
A very important case on the
The person who actually commits the tort (called a question of whether a person is
‘tortfeasor’) is the person who is always liable. When properly acting within the
they are many they are known as joint tortfeasors. course of his employment is
Harrison -v- Michelin Tyre Co.
There are, however, some special considerations that Ltd (1985), which defined the
are applicable to certain entities and persons such as,
test of whether an employer was
the state, Minors, Husband and Wife, Judicial
liable or not in the following
immunity, Executors etc.
way:

A detailed examination of these is beyond the scope of

Whether a reasonable man
this booklet.
would say either that the
employee's act was part and
Vicarious Liability:
Under Kenyan law the expression “vicarious liability” parcel of his employment even
though it was unauthorised and
means the liability of a person for the wrongdoing of
prohibited by the employer (in
another, even if the first person has done nothing
which case the employer was
wrong.
liable), or that it was so
This does not mean that one person is deemed to have divergent from his employment
done the wrongful act. It means the person is liable in as to be plainly alien to his
law for the wrongful action of the other. employment, and wholly
disguisable from it, (in which
What is required is that the first person should stand in
case the employer was not
particular relationship to the other person and that the
liable. .
second person’s tort should be referable in a certain
manner to that relation. ... under a contract of service, a
man is employed as part of the
The commonest of these relationships in Law is the
business; whereas under a
liability of a master for the torts of his servants.
contract for services, his work,
Vicarious liability generally arises from a contract
although done for the business, is
service:
not integrated into it but is only
(a) Employer and independent contractor, and necessary to it, and it depends on
whether the person is part and
(b) Employer and employee (master/servant) parcel of the organisation....
Lord Denning MR
Master-Servant Relationship

Who is a servant?

7
Since vicarious liability under Kenya law generally arises from a contract of service
(“servant”) not a contract of services (“independent contractor”) it is important to
determine the indicia if a contract of service.

In an often cited statement in Short v. J & W

In Limpus --v- London General
Henderson Ltd Lord Thankkerton said that there are
Ominibus Co. (1862), a bus
four indications of a contract of service;
driver, whilst racing another

a) The master’s power of selection of is servant (rival) bus for customers, caused
an accident. His employers were
b) The payment of wages or other remuneration held liable because he was doing
what he was employed to do, i.e.
c) The master’s right to control the method of doing the
driving a bus, although in an
work, and
improper way. Contrast,
d) The master’s right of suspension however, Beard -v- London
General Omnibus Co. (1900)
This list has been found helpful in determining where a bus conductor
whether a master-servant relationship exists but it is attempted to turn a bus around
not conclusive. It is not possible to compile an at the end of its route and in
exhaustive list of all the relevant considerations. The doing so he caused an accident.
court stated in Market Investigation Ltd v. Minister of His employers were not
Social Security (1969 ) per Cooke J: vicariously liable since he was
employed as a conductor (only
The most that can be said is that control will no doubt
always have to be considered, although it can no to collect fares) and not to drive

longer be regarded as the sole determining factor; buses. An act of violence will

and that factors which may of importance are such usually take the employee

matters as whether he hires his own equipment, outside the scope of employment

whether he is own helpers, what degree of financial and the employer will not be

risk he takes, what degree of responsibility for liable. In Warren --v- Henlys

investment and management he has, and whether and (1948) a petrol pump attendant

how far he has an opportunity of profiting from sound assaulted a customer during an

management in the performance of his task. argument over payment for

petrol. It was held that the
As we have seen, a person is a servant if his employer employee was personally liable,
retains a right to control not only the work he does, but but his employers were not
also the way in which he does it. The test is the right of vicariously liable. Whereas the
control, not how much control was in fact exercised. employee was doing his job, it
This is the traditional test, but difficulties arise when was not within the scope of his
applying it to professional persons such as doctors. In employment to assault
such cases it may be necessary to consider such criteria customers
as payment of salaries and the power of dismissal.

The rule is that a master is vicariously liable for the

torts of his servants that are committed within the course of his employment. The
tortuous act must be a wrongful way of doing what the employee is employed to do.

8
Employer and independent contractor

Generally speaking, we say that an employer is vicariously liable for the torts
committed by its employees (provided that they are committed during the course of
his employment) but that he is not generally vicariously liable for the torts
committed by an independent contractor hired by him

One of the difficulties, however, is to distinguish between employees and

independent contractors, because, quite often, they overlap and the position is not
clear. In such a case, it is up to the courts to define the relationship. We do have some
basic tests that we can apply, however:

Tests to distinguish between employees and Independent contractors:

The old test for determining an employee was ‘control’ i.e. does the employer control
when and how the person carries out his tasks. Nowadays, however, a number of
additional factors are taken into account. Thus the extent to which the employer
controls the details of the work carried out by a person is now considered alongside
tests relating to: who supplies the tools and equipment, on whose premises the work
is carried out, and what the expressed intention of the parties is.

Decisions stress the difference between the ‘contract of service’ (employees) and the
'contract for services' (independent contractor).

Example of the particulars of the breach of statutory duty:

a) failing to make or keep safe the respondent's place of work;

b) failing to provide or maintain proper apparatus at the place of work;

c) employing the respondent without instructing him on the dangers likely to arise in
connection with the place of work or without providing any or adequate supervision;

d) failing to provide the respondent with proper skills; and

c) failing to provide a safe system of work.

In Kenya Tea Development Authority Ltd -VS- Andrew Mokaya, HCCA

No. 174 of 2006 at Kisii Justice Makhandia (as he then was) made reference to
what the author in Winfield & Julowicz in Tort (13th Edition) has said at page 203:

“At common law the employer's duty is a duty of care and it follows that the burden
of proving negligence rests with the plaintiff workman throughout the case. It has
even been said that if he alleges a failure to provide a reasonably safe system of
working, the plaintiff must plead and therefore prove what the proper system was
and in what relevant aspects it was not observed. It is true that the severity of this
particular burden has somewhat been reduced but it remains clear that for a
workman merely to prove the circumstances of his accident will not normally be
sufficient.”

9
While an employer is under a duty to take reasonable care for the safety of his
employees so as not to expose them to unnecessary risk, it has to be borne in mind
that breach of this duty must be proved by showing that the employer was careless
and therefore negligent regard being had to the nature of work (Williamson Tea
(K) Ltd -VS- Raymond Kipkemoi Arap Korir, HCCA No. 33 of 2009 at
Kericho). The scope of the duty and the standard to be observed cannot be so wide as
to encompass situations that cannot be reasonably foreseen or contemplated.

In Statpack Industries vs James Mbithi Munyao Nairobi HC Civil Appeal

No.152 of 2003 (unreported) Visram J, held at page 7 of his judgment that;

“Coming now to the more important issue of ‘causation’, it is trite law that the
burden of proof of any fact or allegation is on the plaintiff. He must prove a causal
link between someone’s negligence and his injury. The Plaintiff must adduce
evidence from which, on a balance of probability, a connection between the two may
be drawn. Not every injury is necessarily as a result of someone’s negligence. An
injury per se is not sufficient to hold someone liable.”

Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the
Court of Appeal held inter alia that:-

“On a first appeal from the High Court, the Court of Appeal should reconsider the
evidence, evaluate it itself and draw its own conclusions though it should always bear
in mind that it has neither seen nor heard the witnesses and should make due
allowance in that respect. Secondly that the responsibility of the court is to rule on
the evidence on record and not to introduce extraneous matters not dealt with by the
parties in the evidence”

In Pepco Construction Company Limited v Carter & Sons Limited Nairobi

CA No. 80 of 1979 (UR) wherein the Court of Appeal made observation that:-

“A notice of appeal is what gives this court jurisdiction in any appeal. It is a primary
document in terms of rule 85(1) of the Rules. A record of Appeal must contain a valid
copy of the notice of appeal. The omission to include a valid copy renders the appeal
incompetent….; the case of Joseph Limo & 86 others versus Ann merz Civil
Application No.295 of 1998 Omollo JA made observation that:-“A notice of appeal is
the document which initiates an appeal it indicates who is aggrieved by the decision
or part of the decision of the Superior Court and is or are therefore appealing in the
case of Parsi Anjumani versus Mushin Abdulkarim Ali Civil Application Nai 328 of
1998 (UR) there was observation that:-“a notice of appeal is a primary document
within the meaning of rule 85(1) of the rules …; and lastly Nuru Ibrahim Amrudin
versus Amir Mohamed Amir Civil Appeal No. 23 of 1998 (UR) the Court of Appeal
ruled that “an appeal can only be against a decree or an order not against a
Judgment or ruling…”

10
Occupiers liability

This is the liability of an occupier of premises for

damage a done to visitors to the premises.
Occupier s Liability:
Under Kenya laws:
An occupier is a person who has
“an occupier of premises owes the same duty, the some degree of control over the
common duty of care, to all his visitors, except in so far premises. He need not
as he is free to and does extend, restrict, modify or necessarily be the owner. It is
exclude his duty to any visitor or visitors by agreement also possible for there to be more
or otherwise.” than one occupier.

Occupier’s liability at common law In Wheat -v- E. Lacon & Co. Ltd.
(1966) the defendants, who
At common law the duties of an occupier were cast in a were the owners of a public
descending scale to four different kinds of persons. For house, were held to be the
example: occupiers of the premises in
addition to the manager and his
a) The highest duty of care was owed by the occupier to
wife who were in actual
one who entered in pursuance of a contract with him
e.g. a guest in a hotel. In that case there was an implied occupation.

warranty that the premises were as safe as reasonable The test of occupation is:
care and skill could make them.
Whether a person has some
b) A lower duty was owed to the invitee i.e. a person degree of control arising from
who without any contract entered on business of their presence or activity on the
interest both to himself and the occupier e.g. a customer
premises .
coming into a shop to view the wares he was entitled to
expect that the occupier should prevent damage from Premises can include:: Any
unusual danger of which knew or ought to have known. fixed or moveable structure,
including any vessel, vehicle or
c) Lower still was the duty of the licensee i.e. a person
aircraft this includes land,
who entered with the occupiers express or implied
buildings and anything erected
permission but without any community of interest with
on that land whether they are
the occupier; the occupiers duty towards him was to
fixed or movable structures and
warn him of any concealed danger or trap of which he
vehicles, including ships and
actually knew.
aeroplanes.

d) Finally, there was the trespasser to whom there was

'Visitors' are persons lawfully on
owed only a duty to abstain from deliberate or reckless
the premises.
injury.

Occupiers liability deals with the liability of an occupier

of premises and extends to immovable property as open
land house, railway stations and bridges as well as

11
movable structures like ships, gangways or even vehicles although lawyers prefer to
treat injury in the latter as falling with common law negligence.

Under common law lawful visitors who did not fall under the above classifications of
contractual entrants, invitees or licensees were not clearly covered and accidents
arising from the premises and affecting such person were commonly governed by the
general law of negligence.

The position of the common law was thought to be unsatisfactory. As lord Denning
put it in Slatter v. Clay Cross Co.Ltd

“If a landowner is driving his car down his private drive and meets someone
lawfully walking upon it then his is under a duty to take reasonable care so as not
to injure the walker; and his duty is the same no matter whether it is his gardener
coming up with his plants, a tradesman delivering his goods, a friend coming to
tea, or a flag seller seeking a charitable gift”

The law was thus referred to the law reform committee in 1952 as a result of whose
report the Occupier’s Liability Act 1957 was passed.

Modern Law on Occupier’s Liability

Occupiers’ Liability Act (CHAPTER 34 of the LAWS of Kenya) is the governing

act in this area.

Question:

Write a 300 words essay on Occupier’s liability to trespassers under Kenyan law.
Your answer must be supported by appropriate Kenyan case law. Remember foreign
case law only have a persuasive as opposed to a binding value.

12
Strict liability

Strict liability means liability without fault. Most strict liability torts are created by
Acts of Parliament. For example Safety at work laws created to protect employees.

Strict liability under Kenya law is the imposition of

liability without fault for damages on the defendant. Rule Rylands v Fletcher

This is different from negligence as the burden of proof Blackburn J defined the rule as:
is not placed on the plaintiff to prove that the damages
were a result of the defendant’s negligence, only that A person who, for his own
damages occurred and the defendant is responsible. purposes, brings onto land and
keeps there anything likely to do
In strict liability, there is the assumption that the
mischief if it escapes, must do so
manufacturer or supplier was aware of the defect
at his peril, and, if he does not do
before it reached the plaintiff.
so, he is prima facie answerable

How does a Plaintiff Claim Strict Liability? for all damage which is the
natural consequence of its
Under Kenya laws, for a plaintiff to make a claim based escape
on manufacturing defects, the following must be true:
Prerequisites of the operation of
1. The defendant is the manufacturer of the the rule in Rylands v. Fletcher:
defective product
1. the defendant made a non-
2. The product contained defects when purchased natural or special use of his
by the plaintiff land;

3. The defect existed when the defendant sold the 2. the defendant brought onto
product his land something that was
likely to do mischief if it escaped;
The defect was responsible for injury to the
plaintiff.The injury sustained by the plaintiff must be 3. the substance in question in
foreseeable by the manufacturer, within reason. fact escaped; and
Additionally damages may be awarded if the plaintiff
can prove that the defendant was aware of the defect 4. damage was caused to the
when the product was sold to the consumer. plaintiff s property as a result of
the escape.
What are the Responsibilities of Sellers and
Bailors?

Under Kenya laws, the lending of personal property to

another with the agreement to return the property at a later time is called bailment.
The owner is known as the bailor and the recipient of the property is the bailee.

If there are inherent dangers in the use of the property, the bailor is responsible for
warning the bailee of those dangers. Therefore, the bailor is liable for negligence if
appropriate notice is not given to the bailee. Similarly, the seller assumes

13
responsibility from the manufacturer to warn the consumer about the dangers of the
product.

How does Strict Liability Relate to Ultra

Hazardous Activity? Factors to consider

The “ultra-hazardous” activity doctrine states that An analogy can be drawn

certain activities are create a serious risk of danger and between Ultra-hazardous
that liability must be placed on persons engaging in activity and abnormally
this activity regardless of fault. dangerous activity in USA

The courts in US have held that

the following factors can be
In this legal definition the plaintiff under Kenya laws taken into account in
must have engaged in an ultra-hazardous activity determining whether an activity
which caused the plaintiff to suffer injury, loss or is abnormally dangerous
damage and the defendant should have recognized the
likelihood or damage to the plaintiff during the course (a) there is a high degree of risk
of this activity. Some examples of ultra-hazardous of some harm to others;
activity include demolition and the handling of
(b) the harm that results is likely
dangerous animals.
to be serious;

(c) the risk cannot be eliminated

by the exercise of reasonable
care;

(d) the activity is not common;

(e) the activity is not
appropriate for the place where
it is carried on; and

(f) the danger outweighs the

activity s value to the
community.

NOTE

Probably the single most

important factor is that the
activity be one which cannot be
carried out safely, even with the
exercise of reasonable care.

14
Defences to a tort

There are several different defences in tort law which may excuse a defendant of
wrongdoing and prevent him from being held liable for damages to the plaintiff.

The word “defence” bears several meanings in the tort context. First, it is sometimes
used to refer to any argument that persuades the court to find that the defendant is
not liable. So understood, the word “defence” encompasses “absent element
defences”. Absent element defences are denials by the defendant of an element of the
tort in which the plaintiff sues. For example, when a defendant denies that he is the
tortfeasor, denies that his impugned act was voluntary, denies that he was at fault
when proof of fault is required, or denies that the plaintiff suffered damage when
damage is the gist of the tort in which the plaintiff sues.

In a second and stricter sense, the word “defence” refers only to rules that, when
enlivened, result in a verdict for the defendant even if all of the ingredients of the tort
that the plaintiff contends was committed against him are present. A defendant
invokes a defence within this meaning of the word when he argues along the
following line: “Even if I committed a tort, judgment should nevertheless be entered
in my favour because of rule so and so”. Absent element defences do not qualify as
defences when the word “defence” is used in this way.

Thirdly, the word “defence” is used to encompass principles that limit the relief to
which a plaintiff is entitled. An example is the defence of contributory negligence.

Fourthly, the term “defence” is deployed to refer to rules in respect of which the
defendant bears the onus of proof.

‘First-line defence’

Example

“I did not commit the tort of negligence because the claimant has failed to prove
that I did not act as a reasonable person. I was reasonable because...”

Once the claimant has established the basic requirements of the tort then the
defendant is given an opportunity to argue a general defence.

General defences under Kenya law can be classified as:

 The defence of Consent

 When plaintiff is the wrongdoer

 Inevitable Accident

15
  Act of God

 Act in relation to Private Defence

 Necessity

 Act in respect to Statutory Authority

The defence of Consent:

Defence of Consent
This defence is based on the principle of ‘Volenti non
In Smith -v- Baker
fit Injuria’. Latin for: “No wrong is done to one who
(1891) the claimant, who
consents”.
worked in a quarry, was
The general rule is that a person, who has voluntarily injured when a stone fell
agreed to suffer harm, cannot claim damages for such from a crane which his
harm. This consent to suffer harm can be either employers negligently

express or implied. However, such consent must be used to swing stones above

given freely and not obtained by fraud or any other his head. When sued, his
employers pleaded the
illegal means.
defence of volenti. They
The Meaning of 'Consent’ in the law of Tort: were able to show that the
claimant knew of the risk
Consent may result from a specific agreement to run a
of injury, but they could
risk or it can be implied from the claimant's conduct.
not show that he freely
Consent can either be in respect of an intentional act,
consented to run that risk.
which would otherwise be tortuous, or it can be the
-He may have continued to
consent to run the risk of accidental injury.
work under the crane

Mere knowledge does not necessarily imply consent. through fear of losing his
job. The claimant s action,
The claimant must both appreciate the nature of the
therefore, succeeded.
risk of injury and consent to run that risk.

16
Defence of illegality on the part of plaintiff

This defence is based on the maxim ‘Ex turpi causa

Plaintiff as wrongdoer
non oritur actio’ which means ‘no action rises from an
immoral cause’. In other words if one knowingly Lord Mansfield in Holman

engages in an illegal activity he will not be allowed to v Johnson (1775) 1 Cowp

profit from it. 341, said that no court

will lend its aid to a man
This means that, if the action of the plaintiff was who founds his cause of
unlawful itself, then the defendant might raise that fact action upon an immoral or
as a general defence. an illegal act . Bingham LJ
in Saunders v Edwards
NOTE
[1987] 1 WLR 1116
Public policy requires that the Courts will not lend overlaid the principle with

their aid to a man who founds his action upon an the following gloss:

immoral or illegal act. Where the claimant s

action in truth arises ex
However, it remains difficult to identify when a claim turpi causa he is likely to
in tort will be barred on the basis of the defence of fail. Where the claimant
illegality: part of the difficulty stems from the wide has suffered a genuine
variety of factual situations in which the illegal conduct wrong to which the
may arise. allegedly unlawful conduct
is incidental, he is likely to
The Defence of Inevitable Accident
succeed.

An inevitable accident is an occurrence not avoidable

See also English Cases :
by any precaution a reasonable person would be Clunis v Camden and
expected to take. The person invoking the defence Islington Health
must show that something happened over which he or Authority [1998] QB 978,
she had no control, and the effect of which could not 987. And Standard
have been prevented by using great skill and care. He Chartered Bank v
or she must show either the cause of the accident and Pakistan National
the inevitability of its result, or all the possible causes Shipping Corporation
and the inevitability of the result of each. and others (No 2)

Thus, the defence asserts that where an accident is

17
purely inevitable, and is not caused by the fault of either party, the loss lies where it
falls.

NOTE
Inevitable Accident

According to the authorities, once the plaintiff A plaintiff seeking to

establishes a prima facie case of negligence, the onus undermine or defeat a
will shift to the defendant to prove inevitable accident. defendant s reliance on the
In so doing, the defendant is required to show how the defence of inevitable
accident took place and that the accident could not accident must challenge –
have been avoided by the exercise of the greatest care with evidence and
and skill. argument – the
defendant s explanation of
A defendant may thus escape liability by showing one
how the accident, collision
of two things:
or mishap occurred

(i) prove without his negligence.

A plea of inevitable accident in negligence the actual In Stanley -v- Powell

cases is merely a repetition of the general rule
that an actor is not liable for harm unless the cause of (1891) the claimant was
harm was caused by the actor s failure to what injured by a shot fired by
exercise reasonable care . it therefore follows
that: this defence cannot be raised in torts of happened the defendant whilst on an
strict liability. and that organised shoot. The shot
he was not was aimed at pheasants

responsible for it, or but glanced off a tree

before hitting the
(ii) prove all the possible causes of the accident and claimant.
that he was not responsible for any of them. …
See Also:
In Road Accidents some of the factors that may be
taken into account include: road conditions, weather, Holmes v Mather

speed, the condition of the vehicle, the intensity of the (1875) LR 10 Ex 261

vehicle’s headlights, the driver’s experience and (Exch Ch); Stanley v

his/her familiarity with the roadway, the driver’s Powell [1891] 1 QB 86
reaction to the risk presented, any evasive action taken, (QBD).
other traffic on the roadway, and the physical and
mental condition of the driver (ie. fatigued, distracted,
dizzy, experiencing a medical crisis or condition, etc.).

18
The Defence of an Act of God

The defence of act of God can negate the fault element of the tort of negligence on the
ground that the damage was due to an act of God.

The defence covers extraordinarily major intervention,

Act of God
something which is a consequence of furious working
In modern jurisdictions, "act of
of natural forces.
God" is often broadened by
statute to include all natural
An Act of God must not be within the possibility of
phenomena whose effects could
foresight and preventability of a reasonable human not be prevented by the exercise
being. of reasonable care and foresight.

Black s Law Dictionary defines

Difference between an Act of God and
an act of God as An act
Inevitable Accident: occasioned exclusively by
violence of nature without the
1. An accident without the involvement of humans is an
interference of any human
act of God. An accident which humans can’t ordinarily agency. A natural necessity

avoid is inevitable accident. proceeding from physical causes

alone without the intervention of
2. In case of inevitable accidents, the actions may be a man. It is an accident which
could not have been occasioned
result of human activities. Hence, even if one knows
by human agency but proceeded
the occurrence is going to happen, one still can’t avoid from physical causes alone.
it. However there is no room or possibility of human
In Nichols --v- Marsland
foresight in case of an Act of God or Vis Major. (1876) an extraordinary
rainfall caused the banks of
some artificial lakes on the
defendant's property to burst
and the resultant floodwater
carried away a number of
bridges owned by the county
council. The escape of water
was an act of God.

19
Some other defences under Kenya law:

Necessity

This is in respect of intentional damage caused in order to prevent even greater

damage or destruction, or in defence of the realm.

Therefore, if damage is caused to avoid a greater damage, it becomes a good defence.

It includes, for example, destroying properties in the path of a fire to prevent the
spread of the fire. In Cope -v- Sharpe (1912) a fire broke out on the claimant’s
land, and the defendant, a gamekeeper on adjoining land, entered the claimants land
and burnt some of the heather to form a firebreak to prevent the fire spreading to his
employer’s land. When sued for trespass his defence of necessity succeeded since
there was a real threat of fire and the defendant had acted reasonably.

Act in respect to Statutory Authority

Where a statute has expressly authorised the thing to be done, or the thing done is a
necessary consequence of what is authorised by statute then there is a complete
defence to a tort, provided the defendant proves that he used all proper care.

In Vaughan -v-Taff Vale Railway (1860), the defendants, who were authorised to
operate under Statute, were found not liable for fires caused to the claimants land
caused by sparks from the train engines, since the defendants were obliged to operate
the railway and had done so with proper care.

NOTE

Where the damage is not a necessary consequence of what is authorised by Statute

then this cannot give rise to the defence.

Mistake

There are two types of mistakes

a) Mistake of Law.

Mistake of law is no defence and ignorance of law, no excuse

b) Mistake of Fact.

20
The general rule is that mistake is no defence in tort. There are, however, three
exceptions provided the defendant acted reasonably in making the mistake:

(i) False imprisonment -where for example a policeman without a warrant arrests
someone who has not committed a crime when he reasonably believes that they have.

(ii) Malicious prosecution - where the defendant was under the reasonable mistaken
belief that the claimant had committed a crime.

(iii)Defamation - where the defamation was unintentional.When mistake of fact is a

defense.

21
Specific Torts

There are a number of different torts protecting different rights. The more common
torts are:

Torts affecting the person:

•Assault: a menacing act constituting a threat of violence by one person against

another (this is also a crime)

• Battery: any unauthorised interference by one person with the person of another,
however slight (this is also a crime).

• False imprisonment: physical restraint of a person which is not authorised by law.

Knowledge that one is restrained is not necessary to constitute the tort (this can also
be a crime).

• Negligence: breach of a duty of care owed to a person causing foreseeable injury to

the person. This is the first of the Torts that we shall study. The above torts are
classified, in law, as ‘trespass against the person’.

Torts affecting property:

•Private Nuisance: an indirect interference with another's use or enjoyment of land.

Owed to the occupier of land, not generally to an absentee owner unless future
occupation is affected, e.g. by structural damage. Includes interference through
smells, vibrations, and penetration by roots, etc. This is another of the Torts that we
shall be studying

• Trespass to land: direct interference with a person's rights of possession to land.

Includes entry on to property and placing things on property. The duty is owed to the
possessor even if they are not the owner. The tort is actionable per se. We shall be
studying this Tort

• Trespass to goods: a wrongful interference with goods in the possession of another,

e.g. touching, marking or taking away (this can also constitute a crime, e.g. theft).

• Conversion: an act in relation to goods, which constitutes an unjustifiable denial of

the title of the true owner. The wrong is against the true owner. Includes taking away
goods plus a denial that the person from whom they have been taken is the owner.
Sale of goods, which are not one’s own,

constitutes conversion against the true owner (can also be a crime).

• Negligence: a breach of a duty of care in respect of the property of another causing

foreseeable harm.

22
• Strict liability: allowing things stored or collected on land which are natural to the
land to escape and cause damage to the property of another e.g. water escaping from
a reservoir. -Rylands -v- Fletcher (1868).

• Occupiers liability: the duty of care owed by occupiers of land towards those who
lawfully enter the land or even if they enter the land as a trespasser (another of the
torts that we will be learning).

Torts affecting economic rights:

•Interference with contract: Without lawful justification persuading a person to

break a contract with another, or acting in such a way as prevent its performance.

• Intimidation: making a threat intended to cause another to act or refrain from

acting in a certain way to that person's detriment or that of a third party.

• Passing off: representing one's goods or services to be those of another, causing loss
of trade or damage to business reputation. Trading in a name similar to that of
another like business to the confusion of the public.

• Deceit: making a false statement with intent to deceive, intending another to act
upon it to their detriment (this can also be a crime)

• Negligent misstatement: breach of duty of care in giving advice to a person to whom

one owes a duty of care causing them damage of foreseeable kind including purely
economic loss (we shall be covering this in connection with the Tort of negligence
generally).

Torts affecting rights generally

•Public nuisance: behaviour which materially affects the reasonable comfort and
convenience of a class of people who come within the sphere or neighbourhood of its
operation, e.g. carrying on an offensive trade or obstructing the highway. A private
individual can only sue if he or she has suffered special damage over and above that
suffered generally, otherwise the Attorney General on behalf of the public must bring
the action.

• Conspiracy: a combination of two or more persons planning together to injure a

third by unlawful means.

23
Trespass to the person
Definition:
Under Kenyan Laws this is defined as an act of the
defendant which causes the plaintiff reasonable Battery is:

apprehension of the infliction of a battery on him by

1) intentional, (2) harmful or
the defendant. It is an act of the defendant which
offensive (3) contact with the (4)
directly and either intentionally or negligently causes
plaintiff. (Example: A
the plaintiff immediately to apprehend a contact with
intentionally punches B in the
the body of the defendant .This tort under kenya law
nose. A has committed battery.)
protects a person from mental anxiety.
Intent
Rules of the Tort
It is not necessary that A desires
1. There must be some apprehension of contact
to harm B. A has the necessary

2. There must be a means of carrying out the intent for battery if it is the case

threat by the defendant either that: (1) A intended to

cause a harmful or offensive
3. The tort is actionable per se. bodily contact; or (2) A intended
to cause an imminent
4. The tort is generally associated with battery
apprehension on B s part of a
5. Mere words without body movement do not harmful or offensive bodily
constitute assault. contact.

Assault under Kenya law is constituted by:- Example 1: If A shoots at B,

intending to hit him with a bullet
i. A display or show of force then A has the necessary intent

ii. Pointing of a loaded gun for battery.

iii. Cursing in a threatening manner Example 2: If A shoots at B,

intending to miss him, but also
Battery intending to make him think
that he would be hit. A has the
This is defined under Kenya law as the intentional and intent needed for battery.
direct application of force to another person. It has
been defined as any act of the defendant which directly Harmful or offensive
and either intentionally or negligently causes some
Contact is harmful if for
physical contact with the person or body of the plaintiff
example it causes pain or bodily
without his consent.
damage. However, battery also
As a general rule battery is based on an intentional act covers contacts, which are
and is both a crime and a tort. merely offensive The test is
whether or not the contact was
Meaning of Force permitted by the plaintiff.

This is defined under Kenya law as any physical contact

with the body of the plaintiff or with his clothing is

24
sufficient to amount to force. There is battery where the defendant shoots the
plaintiff from a distance just as much as when he strikes him with his fist. Mere
passive obstruction is however not battery.

In the technical sense however, no physical hurt is necessary, for all forms of trespass
are actionable per se i.e. without prove of damage.

Where there is express or implied consent to contact the plaintiff can’t sue. Life
would be difficult if all bodily contact was actionable and courts have struggled to
find some further ingredient to distinguish battery from legally unobjectionable
conduct.

For battery there must be a voluntary act by the defendant intended to bring about
the contact with the plaintiff. The battery need not be committed with the person of
the person of the defendant.

Rules of Battery Under Kenya Law

1. Absence of the plaintiff’s consent

2. The act is based on an act of the defendant mere obstruction is not battery

3. A contact caused by an accident over which the defendant has no control is not
battery

4. There must be contact with the person of the plaintiff it has been observed The
least touching of another person in anger is battery

5. Battery must be direct and the conduct must follow from the defendant’s act

6. The tort is actionable per se. The essence of battery is to protect a person from un-
permitted contacts with his body. The principal remedy is monetary award in
damages.

Assault

Definition: Assault is: (1) intentionally (2) causing apprehension of (3) harmful or
offensive contact

NOTE

Both torts of assault and battery are actionable per se under Kenya law.

25
Where the defendants act has caused no damage the courts may award only nominal
damage but the court may also award aggravated damages because of the injury to
the feelings of the plaintiff arising from the circumstances of the commission of the
tort.
Definition: False imprisonment is: (1)
a sufficient act of restraint that (2)
False imprisonment confines someone to a (3) bounded
area.

In Big Town Nursing Home, Inc. v.

This is defined under Kenya laws as the infliction of
Newman (US) it was held that:
bodily restraint which is not expressly authorized by
False imprisonment is the direct
law. It’s an act which is directly and either intentionally restraint of one person of physical
or negligently causes the confinement of the plaintiff liberty by another without adequate
within an area limited by the defendant. legal justification.

This tort under Kenya law protects a person’s freedom (a) One person cannot give away the
by making unlawful confinement actionable. rights to liberty of another unless
there is (1) a power of attorney, or
It is possible to commit the tort without imprisonment (2) legal guardianship, or (3) mental
of a person in the common acceptance of the tort. In incompetency.
fact neither physical conduct nor anything resembling
Intent: A must show that B either
prison is necessary.
intended to confine him, or at least
that B knew with substantial
Main Ingredients of the Tort
certainty that A would be confined

(a) Knowledge of the plaintiff by B’s actions. The tort of false

imprisonment cannot be committed
Under Kenya laws, knowledge of the restraint is not merely by negligent or reckless acts.
necessary but may affect the quantum of damages Confinement : The idea of
confinement is that A is held within
(b) Intention and directness certain limits, not that she is
prevented from entering certain
The tort under Kenya law is defined to exclude negligent places. (Example: B refuses to allow
imprisonment of another person. The tort must be A to return to her own home. This is
intentional and should be committed directly. not false imprisonment – A can go
Nevertheless, where for reason of lack of intention or anywhere else, so she has not been

directness the plaintiff cannot establish false confined.

imprisonment an action in negligence may still be The imprisonment can be carried out
available. by direct physical means, but also by
threats or by the assertion of legal
(c) The restraint must be complete
authority.

There must be a total restraint placed upon the

plaintiff’s freedom of action.

Rules of the Tort under Kenya Law

1. The tort must be intentional

26
2. It is immaterial that the defendant acted maliciously

3. The restraint or confinement must be total. However, it need not take place in an
enclosed environment

4. It has been observed every confinement of a person is an imprisonment whether it

be in a common prison, private house or in the stocks or even forcibly detaining one
in the public

5. The boundary of the area of confinement is fixed by the defendant. The barriers
need not be physical. A restraint affected by the assertion of authority is sufficient.

6. The imprisonment must be direct and the plaintiff need not have been aware of the
restraint

7. The tort is actionable per se.

8. The principal remedy is a monetary award in damages.

27
Trespass to Land

Trespass to land is the ‘Direct interference with the possession of another person's
land without lawful authority’.

Common law trespass Ingredients of Trespass

As generally used, “trespass” occurs when either:
Possession:

(1) Defendant intentionally enters Plaintiff’s land,

Since trespass is a wrong done to the
without permission.
possessor of land, only he (rather

(2) Defendant remains on Plaintiff’s land without the than the owner, unless, of course, the
owner is also in possession) can sue.
right to be there, even if she entered rightfully.
Possession includes not only physical
occupation, but occupation through
(3) Defendant puts an object on (or refuses to remove
servants and agents. Mere use, for
an object from) Plaintiff’s land without permission.
example by a lodger or licensee

Trespass a tort actionable ‘per se’, i.e. without proof of visitor is not possession in law.

loss. It is actionable merely because it has been Interference:

committed.
•This must be direct interference,
Defences: either by •Entering on land, or
•Remaining on the land after
The general defences of volenti, necessity, inevitable permission to stay has ended. An
accident, self-defence and statutory authority all apply, exception is a tenant who, if he
but mistake is no defence. remains on at the end of his tenancy,
retains possession as a statutory
Special defences, however, are: tenant and therefore does not
become a trespasser. • Placing
•Entry to exercise a common law right. For example, if objects on land. • )f a right to enter
A enters B's land to repossess his goods that B has on the land is abused this may alter
wrongfully taken onto his land. the position of a lawful visitor to that
of a trespasser:
• Entry by licence. When the licence expires the person
becomes a trespasser when he does not leave, in NOTE

contrast to a lessee/tenant who remains in possession.

If a person enters in exercise of a
common law or statutory right and
Remedies available to the person in possession:
abuses the right by a positive act he
i. Damages, nominal or compensatory. is deemed to be a trespasser from the

ii. Injunction. moment he entered the premises, i.e.

a trespass ab initio (from the
iii. Ejection of the trespasser. Reasonable and
beginning).
proportionate force may be used. (i.e.
Proportionate to the amount of force that the
trespasser is using to prevent ejection).

Remedies available to an owner who has been wrongfully dispossessed:

i. Re-entry - however the re-entry must be peaceful.

28
Note:

The law regarding tenants has now been changed so that it is illegal to remove a
tenant without first obtaining a court order.

ii. An action for the recovery of land.

iii. Having recovered possession as above, such person is deemed, by the doctrine
of Possession by Relation, to have been in possession since the moment his
right to possession accrued. He can therefore maintain an action for mesne
profits, (i.e. profits lost to the claimant, or a sum for the defendant’s use and
occupation of the land) whilst the defendant was wrongfully in possession

Conversion

This is defined under Kenya laws as the intentional dealing with goods which is
seriously inconsistent to possession or right to possession of another person. This
tort protects a person’s interest in dominion or control of goods.

The plaintiff must have possession or the right to immediate possession. However, a
bailee of goods can sue 3rd parties in conversion so can a licensee or a holder of a
lien or a finder. Any good or chattel can be the subject matter of conversion. There
must be physical contact resulting in interference with the goods.

Acts of conversion under Kenya law

i. Taking goods or disposing; it has been observed that to take a chattel out by
another’s possession is to convert it or seize goods under a legal process
without justification is conversion.
ii. Destroy or altering
iii. Using a person’s goods without consent is to convert them
iv. Receiving: the voluntary receipt of another’s goods without consent is
conversion.

However, receiving of another’s goods in certain circumstances is not actionable for

example goods received;-

i. In a market overt; the purchaser acquires a good title

ii. Estoppel; if the true owner of the goods is by his conduct denying the sellers
the right to sell, the buyer acquires a good title to the goods
iii. Goods received from a factor or a mercantile agent
iv. A negotiable instrument received in good faith
v. Goods received from a person who has a voidable title before the title is
avoided
vi. Disposition without delivery - a person who sells another goods without
authority but without delivering them to the buyer converts them

29
vii. Disposition and delivery - A person who sells another’s goods without
authority and delivers the same to the buyer is guilty of conversion
viii. Mis-delivery of goods a carrier or a warehouse man who delivers the goods to
the wrong person by mistake is guilty of conversion
ix. Refusal to surrender another’s goods on demand

The principal remedy available is a monetary award in damages and the plaintiff is
entitled to the value of the goods he has been deprived. The value s determined as per
the date of conversion.

If the plaintiff suffers a pecuniary loss as per the result of the conversion he is
entitled to special damages.

30
Negligence

Negligence relates to the protection of the person and of property.

The law in this respect makes a distinction between

intentional and non-intentional, or involuntary, Donoghue -v- Stevenson (1932).
The appellant, Mrs. Donoghue and a
interference with person and property. Where the
friend went into a cafe where the
interference is intentional, the appropriate tort is
friend purchased a bottle of ginger
trespass to the person, trespass to goods or trespass to beer for Mrs. Donoghue.
property.
The appellant (Mrs. Donoghue) had
Where the interference is involuntary (i.e. drunk one glass from the bottle of
unintentional) but negligent the appropriate action lies ginger beer but as she poured out the
in the tort of negligence. second glass, the decomposed
remains of a snail came out of the
As an independent tort, negligence can be defined as bottle. The appellant became ill as a
being: result and sued the manufacturers,
claiming damages. The question
“The breach of a legal duty to take care, owed by before the House of Lords was
the defendant to the claimant, resulting in whether the manufacturer of a
unintended harm to the claimant” product owes the consumer a duty of
care in tort to prevent injury.
There are three essential ingredients of the tort that
must be established: The importance of this decision was
that the consumer (i.e. Mrs.
1. The existence of a legal duty of care owed by the Donoghue) was not the purchaser of

defendant to the claimant the drink, but a friend of the

purchaser. There was, therefore, no
2. A breach of that legal duty by the defendant contractual relationship between her
and the manufacturers of the ginger
3. Injury to the person or damage to property suffered beer. The manufacturers claimed
by the claimant arising out of the breach of the duty. that as there was no contractual
relationship between them, they
It is necessary to examine these three ingredients in could not be liable to her. The House
detail: of Lords decided otherwise, thus
liberating liability in negligence
The existence of a legal duty of care from the rigidity of privity of
The claimant must satisfy the court that a legal duty of contract which had until then been
care is owed to him by the defendant. the deciding factor, it established a
new category of duty owed by a
A legal duty of care means a duty recognised by the manufacturer to the ultimate
law. consumer.

31
How can we define a ‘duty of care’? The most frequently quoted attempt to
rationalise the duty of care is the famous statement by Lord Atkin in Donoghue -v-
Stevenson (1932):

‘You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbour’
In Donoghue v
Stevenson Lord Atkin
stated: “A manufacturer of NOTE
products, which he sells in
such a form as to show that
he intends them to reach
the ultimate consumer in
the form in which they left
Everyone owes a duty to take reasonable care to avoid
him with no reasonable acts or missions whom they can (reasonably) foresee
possibility of intermediate
examination and with the
would be likely to injure their neighbour
knowledge that the absence
of reasonable care in the In Donoghue –v- Stevenson, defined ‘neighbours’ as:
preparation of the
products will result in an
Injury to the consumer's
“.... persons who are so closely and directly affected by
life or property, owes a my act that I ought reasonably to have them in
duty to the consumer to
take that reasonable care.”
contemplation as being so affected, when I am directing
my mind to the acts or omissions which are called into
The case was a
breakthrough in
question.”
connection with the tort of
negligence and formed the ‘the neighbour test’.
basis of the law of
manufacturers' liability for
In connection with the tort of Negligence:
products.

More important, for a A person must take reasonable care..........

keen student of negligence
law, the decision illustrates
To avoid acts and omissions............
the tort of negligence can
be developed to cover
situations for which there Which they can reasonably foresee would be likely to
is The court said that the injure any persons..................
categories of negligence
are never closed, meaning
that the court can adapt Who are so closely and directly affected by their
the neighbour principle to act.............
new situations if and when
they arise. no precise
precedent. That they ought reasonably to have them in
contemplation as being so affected................

When they are directing their mind to the acts or

omissions, which have been called into,
question....................

However,

The duty of care must be owed to the claimant:

32
The problems that arise here involve claimants who are so removed from the area of
the breach of duty of care so that they cease to be foreseeable by the defendant as
likely to be injured by the negligent act or omission, or, to put it in plain English - a
reasonable person would

not have foreseen that their negligent act (or omission) In Bourhill -v- Young (1943), a

would, in the circumstances, have harmed the motorcyclist, driving too fast, was
involved in an accident with a car.
claimant.
Some distance away, in a safe

Foreseeability and proximity position, a pregnant woman heard

the sound of the crash which
The concept of foreseeability or remoteness of frightened her so much that it made
foreseeability is called the test for proximity. her ill and caused her to give birth
later to a still-born child. The court
Thus one can ask: held that she was beyond the area of
foreseeable danger and that the
“Was the commission of the tort the proximate cause defendant owed no duty of care to
of the damage complained of?” her. It would not have been
reasonable for the defendant to have
Technically, the concept of ‘foreseeability’ and contemplated that the accident
‘proximate cause’ is one and the same, looked at from would have had the repercussions,
different angles. with regard to the claimant, that it
did.
“Space, time, distance, the nature of the injuries
sustained and the relationship of the claimant to the Two more cases show a wider

immediate victim of the accident are factors to be operation of this foreseeability . )n

Dooley -v-Cammell Laird & Co. Ltd.
weighed, but not legal limitations, when the test of
(1951), the claimant recovered
reasonable foreseeability is to he applied.” Per Lord
damages for nervous shock caused
Scarman in McLoughlic -v- O’Brian (1982). by fear for the safety of his work
mates, when the sling on a crane,
NOTE
which he was operating, collapsed,

It is firmly established that a careless/negligent person sending its load into the hold of a
ship where the others were working.
should not have to compensate everyone that might
In Chadwick-v- British Transport
suffer as a result of his acts or omissions.
Commission (1967), the claimant
recovered damages for nervous
For example: The English case of Alcock & others -v-
shock after his involvement in a
Chief Constable of South Yorkshire Police
rescue operation following a train
(1991) (the Hillsborough disaster case) is typical of a
accident. The court held that it was
recent move towards restricting the extension of the foreseeable that persons might come
duty of care as a matter of public policy. to the rescue in the case of a crash
and might suffer nervous shock as a
Another example is In Hill -v Chief Constable of result.
West Yorkshire (1989), the court held that the
police do not owe a duty of care to the general public in
relation to the prevention or detection of crime.

33
The main argument against such an extension of the duty of care is based on the
‘floodgates argument’.

Liability for negligent misstatements

This arose out of the decision in Hedley Byrn & Co. Ltd -v- Heller & Partners
Ltd (1963) where the House of Lords established that recovery for economic loss
arising out of a negligent misstatement was possible where:

 The advice was given by an expert

 acting within the sphere of his or her expertise
 who is in a relationship of sufficient proximity to the person receiving the
advice so that the defendant must reasonably know who is going to act on
their advice and the way in which they are going to act.

The more recent decision in Caparo Industries -v- Dickman (1990) has clarified
the situation of liability for negligent misstatement. In this case the court held that
the auditors of a company did not owe a duty of care to shareholders or members of
the public who purchased shares in reliance on the audited accounts, which they had
prepared negligently.

Although it may be foreseeable that persons use the audited accounts for a variety of
purposes, including making decisions about whether or not to purchase shares, and
that they may suffer financial loss if the accounts are inaccurate, this was insufficient
to establish a duty of care. In addition, there must be sufficient proximity between
the claimant and the defendant, and the court must consider it just and equitable to
impose a duty of care.

The person giving the advice or information must be fully aware of the nature of the
transaction in contemplation and that the claimant would rely upon the advice or
information. The court found that the purpose of the auditor was to enable the
shareholders as a body to use the audited accounts to make corporate decisions, and
not for the purpose of individual shareholders making personal decisions as to
whether or not to deal in the securities of the company.

Breach of the duty of care

The test of whether there has been a breach of duty is an objective one based on the
notion of the response to the situation of a ‘reasonable’ person. This is not a
particularly conscientious person but the average, prudent person.

Whether or not there is a breach of a duty of care is always a question of fact,

depending on the circumstances of the case. In determining whether there has been a
breach of duty the courts will take into account the following factors:

The likelihood of harm

34
 The seriousness of the risk and the risk of serious injury

The usefulness or importance of the defendant's activity when the alleged

negligence occurred

The relationship between the risk and the measures taken

The burden of proof and res ipsa loquitur

The likelihood of harm:

The amount of care required to be exercised increases with the likelihood that the
defendant's action will result in harm. Thus if there is only a remote possibility of
harm, a person will be acting reasonably even though he or she does not protect
against the harm being suffered.

The Less likely the harm, the lower the duty of care

The more likely the harm, the higher the duty of care

The seriousness of the risk and the risk of serious injury:

The standards of a ‘reasonable’ person may in certain circumstances be higher,

particularly where the defendant is aware of the need for greater care.

The usefulness or importance of the defendant's activity when the alleged

negligence occurred:

The court will take into account the value to the community of the defendant's
activity at the relevant time.

The relationship between the risk and the measures taken:

The measure taken in avoiding the risk of harm must be balanced against the
likelihood of the risk.

The burden of proof and res ipsa loquitur

“Res ipsa loquitur” is Latin for “the thing speaks for itself”

In normal circumstances the burden of proof is on the claimant to establish the

negligence, i.e. the breach of the duty of care. However, there is a rule of evidence,
which is of great importance in the tort of negligence, since it removes from the
claimant the burden of proof. Is the rule, or doctrine, of Res Ipsa Loquitur.

The doctrine of res ipsa loquitur

35
In certain circumstances, the fact that the accident happened points to no other
explanation other than that the defendant’s negligence must have caused it. In these
circumstances all that the claimant is required to establish is the injury, which they
have suffered. The doctrine establishes prima facie negligence on the part of the
defendant, which they are obliged to rebut if they are to avoid liability.

The doctrine only applies in a limited number of cases, namely where the claimant is
unable to prove the precise cause of the injury, but where the most likely cause was
some act or omission on the part of the defendant, or someone for whom the
defendant is vicariously liable.

In order to establish the application of the doctrine, three requirements must be

established:

1. It must be impossible to establish the negligent action or omission, which caused

the injury.

2. The injury must be such as would not normally have occurred if proper care had
been exercised.

3. The defendant must have had control over the events alleged to be the cause of the
injury.

Remoteness of damage

The doctrine of remoteness of damage states:

•Intended consequences are never too remote;

• If, however, the consequences are unintended, the wrongdoer is liable for the
natural and probable consequence of their wrongful act. In this context a
consequence is natural and probable when it is one which is so likely to result from
the act, that the wrongdoer, acting as a reasonable person, would have foreseen it,
because of their state of knowledge or means of knowledge, and thus would have
avoided doing the act. It follows, therefore, that a defendant will only be liable to
compensate the claimant in respect of the foreseeable result of his act. Anything else
is too ‘remote’

Closely coupled with the doctrine of remoteness of damage is the doctrine that a
claimant’s award of damages can be reduced if he, himself, has in any way
contributed to the damage sustained. It is called “contributory negligence”

Contributory negligence can arise under the following circumstances:

Where the claimant contributes to the accident, e.g. both the claimant and the
defendant were driving negligently when the accident occurred

36
 Where the claimant through his action or omission makes the injury or
damage suffered more serious, e.g. by failing to wear a seat belt in a car or a
crash helmet on a motorcycle

Relevant defences
In The Wagon Mound (1961) an
action was brought by the
Remoteness of Damage: owners of a wharf against the
owners of a ship called The
The second general defence in Tort is that the damage
Wagon Mound . The ship had
suffered was not suffered as a direct result of the tort,
discharged oil into Sydney
i.e. it is too remote from the tort itself. This is called
harbour which ignited when hot
“remoteness of damage”.
metal from welding operations
In essence, a defendant is not liable for damage, which being carried on in the harbour
is not sufficiently clearly linked with the tortuous act of fell onto a piece of cotton waste
the defendant. floating on the oil. As a result the
wharf was severely damaged.
If, for example, the claimant would have suffered the The court held that damage to
same injury despite the defendant’s tortuous conduct, the wharf simply by fouling
he will not receive compensation. would have been foreseeable to
the reasonable man, but not
The test, which is one of ‘reasonable foreseeability’ as
damage by fire since oil on water
established in The Wagon Mound (1961) and
does not usually ignite. The
provides that:
ignition of the oil only occurred
“A defendant is only liable for the consequence of his because the hot metal happened
act that a reasonable man would have foreseen”. to fall onto a piece of highly
combustible cotton waste and
NOTE
such an eventuality was not

The test is an objective test -i.e. what matters is not reasonably foreseeable.

what the defendant actually (personally) foresaw

Note:
(which would be a subjective test) but what a
reasonable man (i.e. your ordinary everyday person. In torts of strict liability (i.e. the
rule in Rylands-v-Fletcher and in
The ‘Thin Skull’ principle
breach of statutory duty), the
There is an exception to the test of foreseeability. The reasonable foreseeability test
general principle is that a tort-feasor (the person does not apply. The defendant
committing the tort) ‘takes his victim as he finds him’. will have to compensate the
If, due to some peculiar weakness, the victim suffers claimant for all the damage that
injury beyond that which is foreseeable, the defendant is the direct result of the tort.
will be liable for the injury actually suffered.

Novus Actus Interveniens:

The other defence is ‘novus actus interveniens’ which, translated from the Latin
means ‘a new intervening act (or cause)’.

37
This, then, is an act, or event, that breaks the connection between the tort and the
subsequent damage and therefore relieves the defendant of liability for such damage.

A defendant will escape liability if he can prove that the injury suffered by the
claimant was the result of a subsequent and intervening event, which broke the chain
of causation linking the injury (damnum) to their tortuous act (injuria). This may be
an act of the claimant himself or the act of a third party over which the defendant had
no control.

38
Remedies

Under Kenya laws the main remedy against tortious loss is compensation in
‘damages’ or money.

In a limited range of cases, tort law will tolerate self-help, such as reasonable force to
expel a trespasser. This is a defence against the tort of battery.

Further, in the case of a continuing tort, or even where harm is merely threatened,
the courts will sometimes grant an injunction. This means a command, for
something other than money by the court, such as restraining the continuance or
threat of harm. Usually injunctions under Kenya law will not impose positive
obligations on tortfeasors, but some jurisdictions can make an order for specific
performance to ensure that the defendant carries out their legal obligations,
especially in relation to nuisance matters.

Damages

Under Kenya laws,the fundamental principle applied to the assessment of an award

of damages is that the claimant should be fully compensated for his loss.

A plaintiff is entitled to be restored to the position that he would have been in, had
the tort not been committed, insofar as this can be done by the payment of money.
(Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39).

Types of Damages

Nominal and contemptuous

Nominal damages under Kenya law will be awarded where the claimant proves that
the defendant has committed a tort but the claimant has suffered no loss.

Contemptuous damages consist of the award of a derisory sum, usually the smallest
coin of the realm of. They are awarded when the court considers that the claimant's
action, although technically successful, was without merit and should not have been
brought. The claimant may then be at risk on costs, which are normally awarded to
the successful party.

General and special

General damage under Kenya law is the damage that is presumed to flow from torts
which are actionable per se, and so need not be specifically pleaded (e.g., loss of
reputation in a libel action). Special damage refers to the damage that the claimant
must plead and prove as part of his cause of action in torts where damage is the gist
of the action (e.g., negligence, nuisance, slander).

39
There is a second and much more commonly used meaning of the distinction
between general damages and special damages. In practice, losses that are capable of
being calculated with reasonable accuracy are pleaded as 'special damages'. Inexact
or unliquidated losses (although they are not presumed and therefore must be
pleaded) are compensated by an award of 'general damages'. For example, in a
personal injuries.

Special damages

The Court of Appeal in the case of Jacob Ayiga Maruja & another Vs. Simeon
Obayo [2005] eKLR held thus-

“We agree and the courts have always recognized that a reasonable award ought to be
made in respect of reasonable and legitimate funeral expenses. But when such a large
sum is claimed for such expenses then there ought to be proof of what the money was
spent on. ”

We, however, must not be understood to be laying down any law that in subsequent
cases, Shs.60,000/= must be given as the reasonable funeral and other expenses.
Those items are and must remain subject to proof in each and every case.

In the Court of Appeal in Butler vs Butler [1984] KLR 225. It was held there as
follows -

“1. A Person’s loss of earning capacity occurs where as a result of injury, his
chances in the future of any work in the labour market or work, as well as paid as
before the accident are lessened by his injury.

2. Loss of earning capacity is a different head of damages from actual loss of

future earnings. The difference is that compensation for loss of future earnings is
awarded for real assessable loss proved by evidence whereas compensation for
diminution of earning capacity is awarded as part of general damages.

3. Damages under the heads of loss of earning capacity and loss of future
earnings, which in English were formerly included as an unspecified part of the
award of damages for pain, suffering and loss of amenity, are now quantified
separately and no interest is recoverable on them.

4. Loss of earning capacity can be a claim on its own, as where the claimant has
not worked before the accident giving rise to the incapacity, or a claim in addition to
another, as where the claimant was in employment then and/or at the date of the
trial.

40
5. Loss of earning capacity or earning power may and should be included as an
item within general damages but where it is not so included, it is not proper to award
it under its own heading.

6. The factors to be taken into account in considering damages under the head of
loss of earning capacity will vary with the circumstances of the case, and they include
such factors as the age and qualifications of the claimant; his remaining length of
working life; his disabilities and previous service, if any.”

Some Relevant Statutes

The Civil Procedure Act

The Limitation of Actions Act

The Law Reform Act

The Government Proceedings Act

The Fatal Accidents Act

The Occupiers’ Liability Act

The Defamation Act

The Public Authorities Limitation Act

The Vexatious Proceedings Act

The Debts (Summary Recovery) Act

The Foreign Judgments (Reciprocal Enforcement) Act

41