The Court of Appeal stressed the doctrine of vicarious liability as enunciated in Charlesworth on Negligence 4th Edition, Sweet and Maxwell;
“Unquestioningly, no one can be made liable for an act or breach of duty unless it be traceable to himself or his servant or servants in the course of his or her employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work, his or her servant commits some casual act of wrong or negligence, the employer is not answerable.”
A 14 year legal dispute culminated in a January 2020 decision of the Court of Appeal at Nairobi. This was in Board of Governors St. Mary’s School v Boli Festus Andrew Sio  eKLR where the firm of Nyiha, Mukoma & Company Advocates represented the Appellant. This decision upheld a general rule of Common Law that an employer cannot be held vicariously liable for the acts of an independent contractor.
Summary of the Case
The Appellant hired a bus to transport its staff on a trip out of Nairobi. This bus was provided by its owner with a driver.
It was alleged that on the trip back to Nairobi, the bus was carelessly driven, occasioning serious injuries to one of the staff members, the Respondent.
The Respondent claimed that the Appellant did not provide a safe means of transport for its employees and was therefore vicariously liable for the bus driver’s negligence. The learned Judge at the High Court found the same and judgment was awarded against the Appellant, bringing rise to this appeal.
The Appellant’s advocates, Nyiha, Mukoma & Company, argued at the Court of Appeal hearing that the Respondent had not met the requisite standard of proof to discharge the burden. The firm emphasized the Court of Appeal’s holding in Mbuthia Macharia v Annah Mutua Ndwiga & Another  eKLR:
“..the burden of proof in any case…lies with the party who desires any court to give judgment as to any legal right or liability; (it) is for that party to show the facts which he alleges his case depends upon exist…
The central issue sought to be determined by the Court of Appeal was found to be whether the facts brought before the High Court judge allowed her to conclude that the Appellant should be held vicariously liable for the acts of the owner or driver of the hired bus.
It was an undisputed fact by either party before the High Court that the bus hired to transport staff did not belong to the Appellant but rather, belonged to an independent contractor who was not sued or named in the Respondent’s Plaint.
The Court relied on the English case of Pickard v Smith (1861) 10 C.B. (N.S.) 470 and the Kenyan case of Lalji Bhimji Sanghani & Another v Chemilabs  3 eKLR to conclude that no agent-principal or master-servant relationship existed between the owner or driver of the bus and the Appellant. The owner and driver of the hired bus fell within the definition of an independent contractor, resulting in the appeal succeeding and the High Court judgment overturned.
This decision serves as a lesson to the following parties involved in employment law:
- Employers: Ensure all employees or agents perform their duty with utmost skill and care, or risk liability for their negligence.
- Employees: In the unfortunate event an employee is injured or suffers a loss while performing their duties, carefully consider and include all proper parties necessary to the suit.
- Independent Contractors: Be wary of negligent acts committed by the independent contractor’s employees, as the independent contractor will be held liable.
For additional advice on the matter above, kindly contact:
Grace Wangui Koech
Partner (Nyiha, Mukoma & Co Advocates)