Law of Torts in Kenya

A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy

Charles Mwaura Kamau
A Brief Outline of the Law of

Tort in Kenya
By
Charles Mwaura Kamau LLB (Hons) Advocate High Court
of Kenya
mwaurack@gmail.com

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,
Purposes of tort law:
and owed to people generally and is called a Tort.
Like a breach of contract, the breach of a legal duty is
remedied by a civil action. The damages sought would be
unliquidated damages, i.e. damages, the amount of
which would be fixed by the court (in court proceedings
this is called an Unspecified amount claim).
The word Tort is an unusual one and conveys little
meaning to the layperson. It has two root sources. One is
from Norman French, meaning wrong, which in turn
springs from the Latin Tortus meaning twisted or
wrung.
(1) to provide a peaceful

means for adjusting the
rights of parties who
might otherwise take
the law into their own
hands;
(2) to deter wrongful
action;
(3) to encourage socially
responsible behavior;
A Tort signifies a wrong recognised by law. It can be

differentiated from a crime (which is also a wrong in
law) as follows:
and,
The booklet will introduce you to:
condition, insofar as the
the nature of tortuous liability
The general defences available to a claim in Tort

(i.e. those defences which will completely defeat
such a claim)
(4) to restore injured

parties to their original
law can do this, by
compensating them for
their injury.
The persons who can sue and be sued in Tort,

including: Vicarious liability and Occupiers
Liability.
Tort embraces subjects

such as: Negligence
Nuisance Defamation;
either Libel (written) or
Slander (spoken)
Trespass which can be:
to land (i.e. entering on
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

This school of
argues that all harm
actionable in the
just cause or excuse.
NOTE
Under this theory the
would be forever
no cause of action
refused because it is new or
Only a very
per cent of
For a successful
systemsmall
of
alltotort
made go to
Tort law
exist,claims
it is
necessary
to have
court
anda far fewer go on
functioning
insurance
appeal
and appear in the law
system.reports.
Insurance
companies are effectively the
paymasters.
Thus, most of the rules of law
Closed Law of Torts theory
stated in law text- book s may

bear little resemblance to the
practice of tort law,
particularly in the area of
thought
should be
absence of
law of tort
growing and
should be
novel.
The theory argues that the law should be a law of specific, existing, torts (e.g.
negligence, etc.), and that no new torts should be created by the Courts - only by
statute.
The basic pattern of Tort
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 As carelessness, i.e. his fault. The injury suffered by B,
personal injury, is recognised by law as attracting liability. A will be liable to B in the
tort of negligence and B will be able to recover damages.
In tort, it is usually necessary for a claimant to establish both act or omission and
damages to be able to succeed.
Exceptions

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 Bs 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 Ys 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.
States of mind in Torts

Most torts require at least one of the following states of mind: malice, intention and
negligence.
Malice
In the cause of studying
In law, the
encounter concepts such
1. The
cause or
2. The doing of
can be seen,
meaning in law
ill will or the
cases in Torts you will

as duty of care,
remoteness of damages,
fault, etc. When cases
are analysed in these
terms and there is held
to be no liability as there
was no duty or the
word malice has two meanings:

intentional doing of an act without just
excuse.
an act with some improper motive. It
therefore, that it has a different
than that which we usually give it. (i.e.
desire to do harm)
damage was too remote,
NOTE
In law, the
intention to
law of tort as
With regard to
intentions
Intention
Prossers
that:
or the defendant was not

at fault, this is referred to
as formal conceptualism
or black letter law. What
is frequently concealed
in this terminology is the
policy reason behind the
word malice essentially means the

commit an act, and this applies to the
well.
the law of tort, the defendants
(generally speaking) are irrelevant.
decision.
Although as a lawyer you
must know the relevant
Handbook of the Law of Torts says
rules of law, to have a

deeper understanding of
Intention in
tort law is not necessarily a hostile
how law works in
intent, or a
desire to do any harm. Rather it is
practice you must have a
an intent to
bring about a result which will
invade the interests of another in a way that the law will not sanction.
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.
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
may refer to the tort of
refer to careless
In the careless
standard set is an
court will apply the test
man would have done
position.
Causation
A connection must be
defendants breach of
suffered by the
We say that a persons
harm would not have
person not committed
cause of Y if Y would
for X.
Question
What should be the
Tort Laws?
The setting of the

standard in negligence
depends on what the
objective of the
negligence formula
is. If the objective is to
compensate the
claimant for their loss,
then it is
clearly in the claimants
interests to set the
standard as high as
possible. But if the
objective is to deter the
defendant, then it is
counter-productive to
set a standard
which is too high to be
attainable.
several meanings. It
negligence or it may
behaviour.
behaviour sense the
objective one. The
of what a reasonable
in the defendants
shown between the

duty and the damage
plaintiff.
act caused harm if the
occurred had the
the act. That is X is a
not have occurred but
main objectives of
a) Compensation
b) Deterrence
c) Punitive
Pick your option (s) and Support your answer with cases and academic treatises.

A very important case on

the question of whether
Who is liable
a person is properly
The person
tortfeasor) is
they are many
of his employment is
There are,
that are
persons such
Wife, Judicial
A detailed
scope of this
acting within the course

Harrison -v- Michelin Tyre
Co. Ltd (1985), which
defined the test of
whether an employer
was liable or not in the
following way:
Whether a reasonable
man would say either
that the employee's act
in Tort?
who actually commits the tort (called a
the person who is always liable. When
they are known as joint tortfeasors.
however, some special considerations
applicable to certain entities and
as, the state, Minors, Husband and
immunity, Executors etc.
examination of these is beyond the
booklet.
Vicarious
was part and parcel of
Liability:
Under Kenyan
means the
of another,
nothing wrong.
his employment even
law the expression vicarious liability

liability of a person for the wrongdoing
even if the first person has done
though it was
unauthorised and
prohibited by the
employer (in which case
This does not

have done the
liable in law for
What is
stand in
person and
referable in a
The
Law is the
servants.
a contract
(a) Employer
(b) Employer
MasterWho is a servant?
the employer was liable),

or that it was so
divergent from his
employment as to be
plainly alien to his
employment, and wholly
disguisable from it, (in
which case the employer
was not liable.).
... under a contract of
service, a man is
employed as part of the
business; whereas under
a contract for services,
his work, although done
for the business, is not
mean that one person is deemed to

wrongful act. It means the person is
the wrongful action of the other.
required is that the first person should
particular relationship to the other
that the second persons tort should be
certain manner to that relation.
commonest of these relationships in
liability of a master for the torts of his
Vicarious liability generally arises from
service:
and independent contractor, and
and employee (master/servant)
Servant Relationship

Since vicarious
arises from a
contract of
is important to
service.
In an often
Henderson
are four
a) The masters
b) The
remuneration
In Limpus --v- London

General Ominibus Co.
(1862), a bus driver,
whilst racing another
(rival) bus for customers,
caused an accident. His
employers were held
liable because he was
doing what he was
employed to do, i.e.
driving a bus, although in
Contrast, however,
d) The masters
(1900) where a bus
The most that

doubt always
no longer be
factor; and
are such
equipment,
degree of
responsibility
has, and
opportunity of
the
cited statement in Short v. J & W

Ltd Lord Thankkerton said that there
indications of a contract of service;
power of selection of is servant
payment of wages or other
an improper way.
c) The masters
the work, and
This list has

whether a
it is not
an exhaustive
The court
Minister of
liability under Kenya law generally

contract of service (servant) not a
services (independent contractor) it
determine the indicia if a contract of
Beard -v- London
right to control the method of doing
General Omnibus Co.

conductor attempted to
turn a bus around at the
end of its route and in
doing so he caused an
accident. His employers
were not vicariously
liable since he was
employed as a conductor
(only to collect fares) and
not to drive buses. An act
of violence will usually
take the employee
outside the scope of
employment and the
employer will not be
liable. In Warren --vHenlys (1948) a petrol
pump attendant
assaulted a customer
right of suspension
been found helpful in determining
master-servant relationship exists but
conclusive. It is not possible to compile
list of all the relevant considerations.
stated in Market Investigation Ltd v.
Social Security (1969 ) per Cooke J:
can be said is that control will no
have to be considered, although it can
regarded as the sole determining
that factors which may of importance
matters as whether he hires his own
whether he is own helpers, what
financial risk he takes, what degree of
for investment and management he
whether and how far he has an
profiting from sound management in
performance of his task.
As we have
seen, a person is a servant if his
during an argument over
employer
retains a right to control not only the
payment for petrol. It
work he does,
but also the way in which he does it.
was held that the
The test is the right of control, not how much control was in fact exercised. This is the
traditional test, but difficulties arise when applying it to professional persons such as

doctors. In such cases it may be necessary to consider such criteria 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.
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.
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 someones 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 someones 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
Occupiers liability
Occupiers Liability:
An occupier is a person
who has some degree of
control over the
premises. He need not
necessarily be the owner.
It is also possible for
there to be more than
one occupier.
In Wheat -v- E. Lacon
& Co. Ltd. (1966) the
defendants, who were
the owners of a public
house, were held to be
the occupiers of the
premises in addition to
the manager and his wife
who were in actual
occupation.
The test of occupation is:
This is the liability of an occupier of premises for

damage a done to visitors to the premises.
Whether a person has
Under Kenya laws:
arising from their
an occupier of premises owes the same duty, the

common duty of care, to all his visitors, except in so far
as he is free to and does extend, restrict, modify or
exclude his duty to any visitor or visitors by agreement
or otherwise.
Occupiers liability at common law
At common law the duties of an occupier were cast in a
descending scale to four different kinds of persons. For
example:
some degree of control

presence or activity on
the premises.
Premises can include::
Any fixed or moveable
structure, including any
vessel, vehicle or
aircraft this includes
land, buildings and
anything erected on that
land whether they are
fixed or movable
a) The highest duty of care was owed by the occupier to

one who entered in pursuance of a contract with him
structures and vehicles,

including ships and

e.g. a guest in a hotel. In that case there was an implied warranty that the premises
were as safe as reasonable care and skill could make them.
b) A lower duty was owed to the invitee i.e. a person who without any contract
entered on business of interest both to himself and the occupier e.g. a customer
coming into a shop to view the wares he was entitled to expect that the occupier
should prevent damage from unusual danger of which knew or ought to have known.
c) Lower still was the duty of the licensee i.e. a person who entered with the occupiers
express or implied permission but without any community of interest with the
occupier; the occupiers duty towards him was to warn him of any concealed danger
or trap of which he actually knew.
d) Finally, there was the trespasser to whom there was owed only a duty to abstain
from deliberate or reckless 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
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 Occupiers Liability Act 1957 was passed.
Modern Law on Occupiers 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 Occupiers 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.

Strict liability
Strict liability
strict liability
For example
employees.
Strict liability
liability
defendant.
This is
of proof is not
damages were
only that
responsible.
In strict
the
the defect
How does a
Under Kenya
based on
must be true:
1. The
Rule Rylands v
Fletcher
Blackburn J defined the
rule as:
A person who, for his
onto land and keeps
there anything likely to
do mischief if it escapes,
must do so at his peril,
and, if he does not do so,
different from negligence as the burden

placed on the plaintiff to prove that the
a result of the defendants negligence,
damages occurred and the defendant is
he is prima facie
answerable for all
damage which is the
natural consequence of
its escape
Prerequisites of the
operation of the rule in
Rylands v. Fletcher:
1. the defendant made a
non-natural or
2. the defendant brought

onto his land something
3. The
the
under Kenya law is the imposition of

without fault for damages on the
own purposes, brings
special use of his land;
2. The
means liability without fault. Most

torts are created by Acts of Parliament.
Safety at work laws created to protect
that was likely to do

mischief if it escaped;
liability, there is the assumption that

manufacturer or supplier was aware of
before it reached the plaintiff.
Plaintiff Claim Strict Liability?
laws, for a plaintiff to make a claim
manufacturing defects, the following
defendant is the manufacturer of the
defective product
product contained defects when
purchased by the plaintiff
defect existed when the defendant sold
product
3. the substance in
The defect was
responsible for injury to the
question in fact escaped;
plaintiff.The
injury sustained by the plaintiff must
be foreseeable by the manufacturer, within reason.
Additionally damages may be awarded if the plaintiff can prove that the defendant
was aware of the defect when the product was sold to the consumer.
What are the Responsibilities of Sellers and Bailors?

Under Kenya
to another with
a later time is
the bailor and
bailee.
Factors to consider
An analogy can be drawn
between Ultra-
laws, the lending of personal property

the agreement to return the property at
called bailment. The owner is known as
the recipient of the property is the
hazardous activity and
If there are
property, the
bailee of those
for negligence
bailee.
responsibility
consumer
abnormally dangerous
How does
Hazardous
abnormally dangerous
The ultracertain
danger and
engaging in
of risk of some harm to
activity in USA
The courts in US have
held that the following
factors can be taken into
account in determining
whether an activity is
(a) there is a high degree

others;
(b) the harm that results
is likely to be serious;
inherent dangers in the use of the

bailor is responsible for warning the
dangers. Therefore, the bailor is liable
if appropriate notice is not given to the
Similarly, the seller assumes
from the manufacturer to warn the
about the dangers of the product.
Strict Liability Relate to Ultra
Activity?
hazardous activity doctrine states that
activities are create a serious risk of
that liability must be placed on persons
this activity regardless of fault.
(c) the risk cannot be
In this legal
laws must have
which caused
damage and
the likelihood
course of this
hazardous
handling of
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 activitys value to the
community.
NOTE
Probably the single most
important factor is that
the activity be one which
definition the plaintiff under Kenya

engaged in an ultra-hazardous activity
the plaintiff to suffer injury, loss or
the defendant should have recognized
or damage to the plaintiff during the
activity. Some examples of ultraactivity include demolition and the
dangerous animals.

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
Act
of
Act
in
Necessity
Act
God
Defence of
relation to Private Defence
Consent
In Smith -v- Baker
in
(1891) the claimant,

who worked in a
The
quarry, was injured
respect to Statutory Authority
defence of Consent:
This defence is
when a stone fell
based on the principle of Volenti
non fit Injuria.
from a crane which
Latin for: No wrong is done to one
who consents.
his employers
The general rule
negligently used to
swing stones above
is that a person, who has voluntarily
agreed to suffer
his head. When sued,
harm, cannot claim damages for
such harm. This
his employers
consent to suffer harm can be either
express
or
pleaded the defence
implied. However, such consent
must be given
of volenti. They were
freely and not obtained by fraud or
any other illegal
able to show that the
means.
The Meaning of
claimant knew of the

risk of injury, but they
'Consent in the law of Tort:
may
could not show that
result from a specific agreement to
run a risk or it
he freely consented
can be implied from the claimant's
conduct.
to run that risk. -He
Consent can either be in respect of
Consent
an
intentional
may have continued

to work under the
act,
which
would
otherwise
be
tortuous, or it can be the consent to run the risk of accidental injury.

Mere knowledge does not necessarily imply consent. The claimant must both
appreciate the nature of the risk of injury and consent to run that risk.

Plaintif as
Defence of
plaintif
wrongdoer
illegality on the part of
Lord Mansfield in
This defence is
Holman v Johnson
based on the maxim Ex turpi causa
non
(1775) 1 Cowp 341,
actio which means no action rises
said that no court
immoral cause. In other words if
will lend its aid to a
engages in an illegal activity he will
man who founds his
to profit from it.
oritur
from
an
one
knowingly
not be allowed
This means that,
unlawful
itself,
fact as a general
cause of action upon

an immoral or an
illegal act. Bingham
LJ in Saunders v
if the action of the plaintiff was

then the defendant might raise that
defence.
Edwards [1987] 1
NOTE
WLR 1116 overlaid
Public
policy
the principle with the
requires that the Courts will not lend
their aid to a
following gloss:
man who founds his action upon an
immoral
or
Where the
illegal act.
However,
it
claim in tort will
claimants action in
truth arises ex turpi
causa he is likely to
remains difficult to identify when a

be barred on the basis of the defence
of illegality: part
fail. Where the
of the difficulty stems from the wide
variety
claimant has suffered
factual situations in which the illegal
a genuine wrong to
arise.
of
conduct
may
which the allegedly
The
Accident
An
unlawful conduct is
incidental, he is likely
inevitable
avoidable by any
would
be
invoking
the
happened
over
the
effect
prevented
Defence of Inevitable
of
by
to succeed.
See also English
Cases : Clunis v
Camden and
accident
is
precaution
expected
an
a
to
occurrence
reasonable
take.
The
not
person
person
defence must show that something
Islington Health
which he or she had no control, and
Authority [1998]
which
could
not
have
been
using great skill and care. He or she

must
show
the inevitability
and
the
Thus,
the
accident
is
Inevitable Accident
A plaintiff seeking to
undermine or defeat
a defendants
reliance on the
by the fault of
defence of inevitable
falls.
accident must
either the cause of the accident and

of its result, or all the possible causes
inevitability of the result of each.
defence
asserts
that
where
an
purely inevitable, and is not caused

either party, the loss lies where it
challenge with
NOTE
evidence and
According to the
argument the
authorities,
establishes
defendants
prima facie case of negligence, the
explanation of how
onus will shift to the defendant to
the accident, collision
prove inevitable accident. In so
A plea of inevitable accident in

oris
mishap
negligence cases
merelyoccurred
a
repetition of the general
rule
that
without his an
actor is not liable for harm unless the
harm was causednegligence.
by the actors
failure to exercise reasonable care.
In Stanley
-vit therefore follows that:
this defence
Powell (1891) the
defendant
claimant was injured

by a shot fired by the
once
the
plaintiff
doing, the defendant is required to

show how the accident took place
and that the accident could not have
been avoided by the exercise of the
greatest care and skill.
may thus escape liability by showing
one
of
two
(i)
prove
the
an organised shoot.
actual cause of what happened and
that he was not
The shot was aimed
responsible for it, or
defendant whilst on
things:
at pheasants but
(ii) prove all the
glanced off a tree
possible causes of the accident and
that he was not
before hitting the
responsible for any of them.
In
Road
may be taken
conditions,
vehicle,
the
claimant.
See Also:
Holmes v Mather
Accidents some of the factors that

into
account
include:
road
weather, speed, the condition of the

intensity of the vehicles headlights,
the drivers experience and his/her familiarity with the roadway, the drivers reaction

to the risk presented, any evasive action taken, other traffic on the roadway, and the
physical
and
fatigued,
mental condition of the driver (ie.

Act of God
medical crisis or
In modern jurisdictions,
"act of God" is often
The
broadened by statute to
The defence of
element of the
the damage was
include all natural

phenomena whose effects
distracted, dizzy, experiencing a

condition, etc.).
Defence of an Act of God

act of God can negate the fault
could not be prevented by
tort of negligence on the ground that
the exercise of reasonable
due to an act of God.
care and foresight.
The
defence
intervention,
furious working
Blacks Law Dictionary
covers
extraordinarily
major
defines an act of God as
something which is a consequence of
An act occasioned
of natural forces.
exclusively by violence of
An Act of God
nature without the
must not be within the possibility of
foresight
interference of any human
preventability
and
of
reasonable
agency. A natural
human being.
necessity proceeding from

physical causes alone
Difference
without the intervention of
Inevitable
man. It is an accident
1. An accident
which could not have been

occasioned by human
between an Act of God and

Accident:
without the involvement of humans
is an act of God.
agency but proceeded
An accident which humans cant
ordinarily avoid
from physical causes
is inevitable accident.
alone.
2. In case of
In Nichols --v- Marsland
inevitable accidents, the actions may
be a result of
(1876) an extraordinary
human activities. Hence, even if one
knows
rainfall caused the banks
occurrence is going to happen, one
the
still cant avoid

possibility
God
or
of
Vis
of some artificial lakes on

the defendant's property
it. However there is no room or
to burst and the resultant
human foresight in case of an Act of
floodwater carried away a
Major.

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 claimants
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
employers 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.
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.

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 ones 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.
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.

Definition:
Trespass
Battery is:
to the person
1) intentional, (2)
Under Kenyan
defendant
apprehension
the defendant.
directly and
causes the
contact with
under kenya
anxiety.
Rules of the
1.
There
2.
There
threat by the
harmful or offensive (3)

contact with the (4)
plaintiff. (Example: A
intentionally punches B
in the nose. A has
committed battery.)
Intent
It is not necessary that A
desires to harm B. A has
the necessary intent for
battery if it is the case
either that: (1) A
intended to cause a
harmful or offensive
3.
The tort
bodily contact; or (2) A
4.
The tort
imminent apprehension
5.
Mere
constitute
Assault under
i.
ii.
Pointing
iii.
Cursing
Laws this is defined as an act of the

which causes the plaintiff reasonable
of the infliction of a battery on him by
It is an act of the defendant which
either intentionally or negligently
plaintiff immediately to apprehend a
the body of the defendant .This tort
law protects a person from mental
intended to cause an
on Bs part of a harmful
or offensive bodily
contact.
Example 1: If A shoots at
B, intending to hit him
Tort
must be some apprehension of contact
must be a means of carrying out the
defendant
is actionable per se.
is generally associated with battery
words without body movement do not
assault.
Kenya law is constituted by:display or show of force
with a bullet then A has
Battery
This is defined
direct
It has been
which directly
causes some
body of the
As a general
act and is both
the necessary intent for

battery.
of a loaded gun
in a threatening manner
Example 2: If A shoots at
B, intending to miss him,
but also intending to
make him think that he
would be hit. A has the
intent needed for
battery.
Harmful or offensive
Contact is harmful if for
example it causes pain or
under Kenya law as the intentional and

application of force to another person.
defined as any act of the defendant
and either intentionally or negligently
physical contact with the person or
plaintiff without his consent.
rule battery is based on an intentional
a crime and a tort.

Meaning of Force
This is defined under Kenya law as any physical contact with the body of the plaintiff
or with his clothing is 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 cant 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 plaintiffs 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 defendants act
6. The tort is actionable per se. The essence of battery is to protect a person from unpermitted 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.

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) confines someone to
a (3) bounded area.
False imprisonment
In Big Town Nursing

Home, Inc. v. Newman
(US) it was held that: False
This is defined under Kenya laws as the infliction of

bodily restraint which is not expressly authorized by
law. Its an act which is directly and either intentionally
or negligently causes the confinement of the plaintiff
within an area limited by the defendant.
imprisonment is the direct

restraint of one person of
physical liberty by another
without adequate legal
justification.
(a) One person cannot give
This tort under Kenya law protects a persons freedom

by making unlawful confinement actionable.
away the rights to liberty of
It is possible to commit the tort without imprisonment

of a person in the common acceptance of the tort. In
fact neither physical conduct nor anything resembling
prison is necessary.
legal guardianship, or (3)
Main Ingredients of the Tort

(a) Knowledge of the plaintiff
another unless there is (1) a

power of attorney, or (2)
mental incompetency.
Intent: A must show that B
either intended to confine
him, or at least that B knew
with substantial certainty
that A would be confined by
Bs actions. The tort of false
Under Kenya laws, knowledge of the restraint is not

necessary but may affect the quantum of damages
imprisonment cannot be
(b) Intention and directness
Confinement: The idea of
The tort under Kenya law is defined to exclude negligent

imprisonment of another person. The tort must be
intentional and should be committed directly.
Nevertheless, where for reason of lack of intention or
directness the plaintiff cannot establish false
imprisonment an action in negligence may still be
available.
held within certain limits,
(c) The restraint must be complete
committed merely by
negligent or reckless acts.
confinement is that A is
not that she is prevented
from entering certain
places. (Example: B refuses
to allow A to return to her
own home. This is not false
imprisonment A can go
anywhere else, so she has
not been confined.)
There must be a total restraint placed upon the plaintiffs freedom of action.

Rules of the Tort under Kenya Law
1. The tort must be intentional
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.

Trespass
to Land
Trespass to
possession of
authority.
Ingredients of
Common
As generally
Since trespass is a wrong
(1) Defendant
without
the owner, unless, of course,
(2) Defendant
right to be
Possession includes not only
(3) Defendant
an object from)
and agents. Mere use, for
Trespass a tort
loss. It is
committed.
possession in law.
Defences:
The general
inevitable
authority all
done to the possessor of

land, only he (rather than
the owner is also in
possession) can sue.
physical occupation, but
occupation through servants
example by a lodger or
licensee (visitor) is not
Interference:
Entry by
person
leave, in
remains in
Remedies
possession:
law trespass
used, trespass occurs when either:
intentionally enters Plaintiffs land,
permission.
remains on Plaintiffs land without the
there, even if she entered rightfully.
puts an object on (or refuses to remove
Plaintiffs land without permission.
actionable per se, i.e. without proof of
actionable merely because it has been
This must be direct

interference, either by
Entering on land, or
Remaining on the land
after permission to stay has
ended. An exception is a
at the end of his tenancy,
Entry to
example, if A
that B has
land is the Direct interference with the

another person's land without lawful
Possession:
tenant who, if he remains on
Special
i.
ii.
Trespass
retains possession as a
statutory tenant and
therefore does not become
a trespasser. Placing
objects on land. If a right
defences of volenti, necessity,

accident, self-defence and statutory
apply, but mistake is no defence.
defences, however, are:
exercise a common law right. For
enters B's land to repossess his goods
wrongfully taken onto his land.
that of a trespasser:
licence. When the licence expires the

becomes a trespasser when he does not
contrast to a lessee/tenant who
possession.
NOTE
available to the person in
to enter on the land is

abused this may alter the
position of a lawful visitor to
Damages, nominal or compensatory.

Injunction.

iii.
Ejection of the trespasser. Reasonable and 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.
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.
iii.
An action for the recovery of land.

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 defendants 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 persons 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.
ii.
iii.
iv.
Taking goods or disposing; it has been observed that to take a chattel out by
anothers possession is to convert it or seize goods under a legal process
without justification is conversion.
Destroy or altering
Using a persons goods without consent is to convert them
Receiving: the voluntary receipt of anothers goods without consent is
conversion.
However, receiving of anothers goods in certain circumstances is not actionable for

example goods received;-

i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
In a market overt; the purchaser acquires a good title

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
Goods received from a factor or a mercantile agent
A negotiable instrument received in good faith
Goods received from a person who has a voidable title before the title is
avoided
Disposition without delivery - a person who sells another goods without
authority but without delivering them to the buyer converts them
Disposition and delivery - A person who sells anothers goods without
authority and delivers the same to the buyer is guilty of conversion
Mis-delivery of goods a carrier or a warehouse man who delivers the goods to
the wrong person by mistake is guilty of conversion
Refusal to surrender anothers 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.

Negligence
Donoghue -v- Stevenson
Negligence
and of
(1932). The appellant, Mrs.
The law in this

intentional and
interference
interference is
trespass to the
property.
purchased a bottle of ginger
Donoghue and a friend went

into a cafe where the friend
beer for Mrs. Donoghue.
The appellant (Mrs.
Donoghue) had drunk one
glass from the bottle of
relates to the protection of the person

property.
respect makes a distinction between
non-intentional, or involuntary,
with person and property. Where the
intentional, the appropriate tort is
person, trespass to goods or trespass to
ginger beer but as she

poured out the second
Where the
unintentional)
lies in the tort
glass, the decomposed

remains of a snail came out
of the bottle. The appellant
interference is involuntary (i.e.

but negligent the appropriate action
of negligence.
became ill as a result and
As an
defined as
sued the manufacturers,

claiming damages. The
independent tort, negligence can be

being:
question before the House
The breach
by the
in
of Lords was whether the

manufacturer of a product
owes the consumer a duty
of a legal duty to take care, owed

defendant to the claimant, resulting
unintended harm to the claimant
of care in tort to prevent
There are three

must be
injury.
1. The
by the
decision was that the
2. A breach of
purchaser of the drink, but a
The importance of this

consumer (i.e. Mrs.
Donoghue) was not the
essential ingredients of the tort that

established:
existence of a legal duty of care owed
defendant to the claimant
that legal duty by the defendant
friend of the purchaser.
3. Injury to the
by the claimant
There was, therefore, no

contractual relationship
person or damage to property suffered

arising out of the breach of the duty.
between her and the
It is necessary
detail:
manufacturers of the ginger
to examine these three ingredients in
beer. The manufacturers

claimed that as there was
The
no contractual relationship
between them, they could
care
not be liable to her. The
The claimant
of care is owed to him by the defendant.
existence of a legal duty of

must satisfy the court that a legal duty
A legal duty of care means a duty recognised by the law.

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 -vStevenson (1932):
In Donoghue v
Stevenson Lord Atkin
stated: A manufacturer
of 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 him with
no reasonable possibility
of intermediate
examination and with the
knowledge that the
absence of reasonable
care in the preparation of
the products will result in
an Injury to the
consumer's life or
property, owes a duty to
the consumer to take that
reasonable care.
The case was a
breakthrough in
connection with the tort of
negligence and formed the
basis of the law of
manufacturers' liability
for products.
More important, for a
keen student of negligence
law, the decision
illustrates the tort of
negligence can be
developed to cover
situations for which there
is The court said that the
categories of negligence
are never closed, meaning
that the court can adapt
the neighbour principle to
new situations if and
when they arise. no
precise precedent.
You must take reasonable care to avoid acts or

omissions which you can reasonably foresee would be
likely to injure your neighbour
NOTE
Everyone owes a duty to take reasonable care to avoid

acts or missions whom they can (reasonably) foresee
would be likely to injure their neighbour
In Donoghue v- Stevenson, defined neighbours as:
.... persons who are so closely and directly affected by
my act that I ought reasonably to have them in
contemplation as being so affected, when I am directing
my mind to the acts or omissions which are called into
question.
the neighbour test.
In connection with the tort of Negligence:
A person must take reasonable care..........
To avoid acts and omissions............
Which they can reasonably foresee would be likely to
injure any persons..................
Who are so closely and directly affected by their
act.............
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:

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
In Bourhill -v- Young
foreseeable by
the defendant as likely to be injured by
(1943), a motorcyclist,
the negligent
act or omission, or, to put it in plain
driving too fast, was
English - a
reasonable person would
involved in an accident with
not have
omission)
harmed the
Foreseeability
a car. Some distance away,

in a safe position, a
pregnant woman heard the
sound of the crash which
frightened her so much that
it made her ill and caused
The concept of
foreseeability
her to give birth later to a
Thus one can
the area of foreseeable
Was the
cause of the
defendant owed no duty of
Technically,
proximate
from different
the defendant to have
Space, time,
sustained and
immediate
weighed, but
reasonable
Lord Scarman
to the claimant, that it did.
still-born child. The court

held that she was beyond
danger and that the
care to her. It would not
have been reasonable for
contemplated that the
accident would have had the
repercussions, with regard
Two more cases show a

wider operation of this
foreseeability. In Dooley -vCammell Laird & Co. Ltd.
(1951), the claimant
foreseen that their negligent act (or

would, in the circumstances, have
claimant.
and proximity
foreseeability or remoteness of
is called the test for proximity.
ask:
commission of the tort the proximate
damage complained of?
the concept of foreseeability and
cause is one and the same, looked at
angles.
distance, the nature of the injuries
the relationship of the claimant to the
victim of the accident are factors to be
not legal limitations, when the test of
foreseeability is to he applied. Per
in McLoughlic -v- OBrian (1982).
recovered damages for
NOTE
It is firmly
person should
might suffer as
For example:
-v- Chief
Police (1991)
typical of a
extension of
policy.
nervous shock caused by

fear for the safety of his
work mates, when the sling
on a crane, which he was
operating, collapsed,
sending its load into the
hold of a ship where the
others were working. In
Chadwick-v- British
Transport Commission
(1967), the claimant
established that a careless/negligent

not have to compensate everyone that
a result of his acts or omissions.
The English case of Alcock & others
Constable of South Yorkshire
(the Hillsborough disaster case) is
recent move towards restricting the
the duty of care as a matter of public

Another example is In Hill -v Chief Constable of 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.
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
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
In certain circumstances, the fact that the accident happened points to no other
explanation other than that the defendants 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
foreseeable
remote
Closely
remoteness of
claimants
himself, has in
sustained. It is
Contributory
following
Where
In The Wagon Mound

(1961) an action was
brought by the owners of
a wharf against the
owners of a ship called
The Wagon Mound. The
ship had discharged oil
into Sydney harbour
which ignited when hot
metal from welding
operations being carried
on in the harbour fell
onto a piece of cotton
when
Where
suffered
seat belt
waste floating on the oil.

As a result the wharf was
severely damaged. The
court held that damage
to the wharf simply by
fouling would have been
foreseeable to the
Relevant
the claimant in respect of the

result of his act. Anything else is too
reasonable man, but not
coupled with the doctrine of

damage is the doctrine that a
award of damages can be reduced if he,
any way contributed to the damage
called contributory negligence
negligence can arise under the
circumstances:
the claimant contributes to the
accident, e.g. both the claimant and the
defendant were driving negligently
the accident occurred
the claimant through his action or
omission makes the injury or damage
more serious, e.g. by failing to wear a
in a car or a crash helmet on a
motorcycle
defences
damage by fire since oil
Remoteness
on water does not

usually ignite. The
The second
damage
result of the
itself. This is
ignition of the oil only
In essence, a
which is not
tortuous act of
waste and such an
If, for example,

same injury
conduct, he
Note:
occurred because the hot

metal happened to fall
onto a piece of highly
combustible cotton
eventuality was not
reasonably foreseeable.
In torts of strict liability

(i.e. the rule in Rylands-
of Damage:
general defence in Tort is that the
suffered was not suffered as a direct
tort, i.e. it is too remote from the tort
called remoteness of damage.
defendant is not liable for damage,
sufficiently clearly linked with the
the defendant.
the claimant would have suffered the
despite the defendants tortuous
will not receive compensation.
The test, which is one of reasonable foreseeability as established in The Wagon

Mound (1961) and provides that:

A defendant is only liable for the consequence of his act that a reasonable man
would have foreseen.
NOTE
The test is an objective test -i.e. what matters is not what the defendant actually
(personally) foresaw (which would be a subjective test) but what a reasonable man
(i.e. your ordinary everyday person.
The Thin Skull principle
There is an exception to the test of foreseeability. The general principle is that a tortfeasor (the person committing the tort) takes his victim as he finds him. If, due to
some peculiar weakness, the victim suffers injury beyond that which is foreseeable,
the defendant 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).
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.

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).
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 Persons 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.
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

Law of Torts in Kenya

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Law of Torts in Kenya

Загружено:

Авторское право:

Доступные форматы

A Brief Outline of Torts Law in Kenya

@Corporate Infolink Consultancy

A Brief Outline of the Law of

A Brief Outline of Torts Law in Kenya

(1) to provide a peaceful

A Tort signifies a wrong recognised by law. It can be

The booklet will introduce you to:

condition, insofar as the

the nature of tortuous liability

The general defences available to a claim in Tort

(4) to restore injured

The persons who can sue and be sued in Tort,

Tort embraces subjects

The remedies that are available if successful.

A Brief Outline of Torts Law in Kenya

Closed Law of Torts theory

stated in law text- book s may

A Brief Outline of Torts Law in Kenya

A Brief Outline of Torts Law in Kenya

States of mind in Torts

In the cause of studying

encounter concepts such

cases in Torts you will

word malice has two meanings:

damage was too remote,

or the defendant was not

word malice essentially means the

Handbook of the Law of Torts says

rules of law, to have a

A Brief Outline of Torts Law in Kenya

The setting of the

shown between the

A Brief Outline of Torts Law in Kenya

A very important case on

acting within the course

was part and parcel of

his employment even

law the expression vicarious liability

This does not

the employer was liable),

mean that one person is deemed to

A Brief Outline of Torts Law in Kenya

In Limpus --v- London

(1900) where a bus

The most that

cited statement in Short v. J & W

This list has

liability under Kenya law generally

Beard -v- London

right to control the method of doing

General Omnibus Co.

A Brief Outline of Torts Law in Kenya

A Brief Outline of Torts Law in Kenya

A Brief Outline of Torts Law in Kenya

This is the liability of an occupier of premises for

Whether a person has

Under Kenya laws:

arising from their

an occupier of premises owes the same duty, the

some degree of control

a) The highest duty of care was owed by the occupier to

structures and vehicles,

A Brief Outline of Torts Law in Kenya

A Brief Outline of Torts Law in Kenya