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A Brief Outline of Torts Law in Kenya

@Corporate Infolink Consultancy

Charles Mwaura Kamau

A Brief Outline of the Law of
Tort in Kenya
Charles Mwaura Kamau LLB (Hons) Advocate High Court
of Kenya
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

Purposes of tort law:
(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; and,
(4) to restore injured parties to
their original condition, insofar
as the law can do this, by
compensating them for their
Tort embraces subjects such as:
Negligence Nuisance
Defamation; either Libel
(written) or Slander (spoken)
Trespass which can be: to land
(i.e. entering on someones land
without permission): to the
person (i.e. assault, battery or
false imprisonment), or to goods
(i.e. conversion, detention).
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.
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
A Tort signifies a wrong recognised by law. It can be
differentiated from a crime (which is also a wrong in
law) as follows:
The booklet will introduce you to:
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)

The persons who can sue and be sued in Tort,
including: Vicarious liability and Occupiers

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

This school of thought argues that all harm should be actionable in the absence of
just cause or excuse.
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
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.
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.
For a successful system of
Tort law to exist, it is
necessary to have a
functioning insurance
system. Insurance
companies are effectively
the paymasters.
Only a very small per cent of all tort
claims made go to court and far fewer
go on appeal and appear in the law
Thus, most of the rules of law stated in
law text- book s may bear little
resemblance to the practice of tort
law, particularly in the area of
personal injuries.
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

In tort, it is usually necessary for a claimant to establish both act or omission and
damages to be able to succeed.
There are certain torts which do not require fault. These are known as torts of strict
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
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
2. Wrongs affecting personal relations in the family: Seduction, enticing away of
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.
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

In the cause of studying cases in
Torts you will encounter
concepts such 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 damage was too
remote, 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
Although as a lawyer you must
know the relevant rules of law,
to have a deeper understanding
of how law works in practice you
must have a clear conception of
the policy issues which shape
legal decisions.
2. Interference with rights analogous to property, such as private franchises, patents,
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.
In law, the word malice has two meanings:
1. The intentional doing of an act without just cause or
2. The doing of an act with some improper motive. It
can be seen, therefore, that it has a different meaning
in law than that which we usually give it. (i.e. ill will
or the desire to do harm)
In law, the word malice essentially means the
intention to commit an act, and this applies to the law
of tort as well.
With regard to the law of tort, the defendants
intentions (generally speaking) are irrelevant.
Prossers Handbook of the Law of Torts says that:
Intention in tort law is not necessarily a hostile intent, or a desire to do any
harm. Rather it is 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:
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

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 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 defendants position.
A connection must be shown between the
defendants breach of duty and the damage
suffered by the plaintiff.
We say that a persons act caused harm if the
harm would not have occurred had the person
not committed the act. That is X is a cause of Y if
Y would not have occurred but for X.
What should be the main objectives of Tort
a) Compensation
b) Deterrence
c) Punitive
Pick your option (s) and Support your answer with cases and academic treatises.
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
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

A very important case on the
question of whether a person is
properly acting within the
course of his employment is
Harrison -v- Michelin Tyre Co.
Ltd (1985), which defined the
test of whether an employer was
liable or not in the following
Whether a reasonable man
would say either that the
employee's act was part and
parcel of his employment even
though it was unauthorised and
prohibited by the employer (in
which case 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
... 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 integrated into it but is only
necessary to it, and it depends on
whether the person is part and
parcel of the organisation....
Lord Denning MR

Who is liable in Tort?
The person who actually commits the tort (called a
tortfeasor) is the person who is always liable. When
they are many they are known as joint tortfeasors.
There are, however, some special considerations that
are applicable to certain entities and persons such as,
the state, Minors, Husband and Wife, Judicial
immunity, Executors etc.
A detailed examination of these is beyond the scope of
this booklet.
Vicarious Liability:
Under Kenyan law the expression vicarious liability
means the liability of a person for the wrongdoing of
another, even if the first person has done nothing
This does not mean that one person is deemed to have
done the wrongful act. It means the person is liable in
law for the wrongful action of the other.
What is required is that the first person should stand in
particular relationship to the other person and that the
second persons tort should be referable in a certain
manner to that relation.
The commonest of these relationships in Law is the
liability of a master for the torts of his servants.
Vicarious liability generally arises from a contract
(a) Employer and independent contractor, and
(b) Employer and employee (master/servant)
Master-Servant Relationship
Who is a servant?
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

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 an
improper way. Contrast,
however, Beard -v- London
General Omnibus Co. (1900)
where a bus 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 --v- Henlys
(1948) a petrol pump attendant
assaulted a customer during an
argument over payment for
petrol. It was held that the
employee was personally liable,
but his employers were not
vicariously liable. Whereas the
employee was doing his job, it
was not within the scope of his
employment to assault
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
In an often cited statement in Short v. J & W
Henderson Ltd Lord Thankkerton said that there are
four indications of a contract of service;
a) The masters power of selection of is servant
b) The payment of wages or other remuneration
c) The masters right to control the method of doing the
work, and
d) The masters right of suspension
This list has been found helpful in determining
whether a master-servant relationship exists but it is
not conclusive. It is not possible to compile an
exhaustive list of all the relevant considerations. The
court stated in Market Investigation Ltd v. Minister of
Social Security (1969 ) per Cooke J:
The most that can be said is that control will no doubt
always have to be considered, although it can no
longer be regarded as the sole determining factor;
and that factors which may of importance are such
matters as whether he hires his own equipment,
whether he is own helpers, what degree of financial
risk he takes, what degree of responsibility for
investment and management he has, and whether and
how far he has an opportunity of profiting from sound
management in the performance of his task.
As we have seen, a person is a servant if his employer
retains a right to control not only the work he does, but
also the way in which he does it. 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.
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

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:
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

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

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
The test of occupation is:
Whether a person has some
degree of control arising from
their presence or activity on the
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 structures and
vehicles, including ships and
'Visitors' are persons lawfully on
the premises.

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

This is the liability of an occupier of premises for
damage a done to visitors to the premises.
Under Kenya laws:
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
a) The highest duty of care was owed by the occupier to
one who entered in pursuance of a contract with him
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
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

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.
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.
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

Rule Rylands v Fletcher
Blackburn J defined the rule as:
A person who, for his own
purposes, brings 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, he is prima facie answerable
for all damage which is the
natural consequence of its
Prerequisites of the operation of
the rule in Rylands v. Fletcher:
1. the defendant made a non-
natural or special use of his
2. the defendant brought onto
his land something that was
likely to do mischief if it escaped;
3. the substance in question in
fact escaped; and
4. damage was caused to the
plaintiffs property as a result of
the escape.
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
Strict liability under Kenya law is the imposition of
liability without fault for damages on the defendant.
This is different from negligence as the burden of proof
is not placed on the plaintiff to prove that the damages
were a result of the defendants negligence, only that
damages occurred and the defendant is responsible.
In strict liability, there is the assumption that the
manufacturer or supplier was aware of the defect
before it reached the plaintiff.
How does a Plaintiff Claim Strict Liability?
Under Kenya laws, for a plaintiff to make a claim based
on manufacturing defects, the following must be true:
1. The defendant is the manufacturer of the
defective product
2. The product contained defects when purchased
by the plaintiff
3. The defect existed when the defendant sold the
The defect was responsible for injury to the
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?
A Brief Outline of Torts Law in Kenya
@Corporate Infolink Consultancy
Charles Mwaura Kamau

Factors to consider
An analogy can be drawn
between Ultra-hazardous
activity and abnormally
dangerous activity in USA
The courts in US have held that
the following factors can be
taken into account in
determining whether an activity
is abnormally dangerous
(a) there is a high degree of risk
of some harm to others;
(b) the harm that results is likely
to be serious;
(c) the risk cannot be eliminated
by the exercise of reasonable
(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
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.
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
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 responsibility from
the manufacturer to warn the consumer about the
dangers of the product.
How does Strict Liability Relate to Ultra
Hazardous Activity?
The ultra-hazardous activity doctrine states that
certain activities are create a serious risk of danger and
that liability must be placed on persons engaging in
this activity regardless of fault.

In this legal definition the plaintiff under Kenya laws
must have engaged in an ultra-hazardous activity
which caused the plaintiff to suffer injury, loss or
damage and the defendant should have recognized the
likelihood or damage to the plaintiff during the course
of this activity. Some examples of ultra-hazardous
activity include demolition and the handling of
dangerous animals.

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

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

Defence of Consent
In Smith -v- Baker
(1891) the claimant, who
worked in a quarry, was
injured when a stone fell
from a crane which his
employers negligently
used to swing stones above
his head. When sued, his
employers pleaded the
defence of volenti. They
were able to show that the
claimant knew of the risk
of injury, but they could
not show that he freely
consented to run that risk.
-He may have continued to
work under the crane
through fear of losing his
job. The claimants action,
therefore, succeeded.
Inevitable Accident
Act of God
Act in relation to Private Defence
Act in respect to Statutory Authority
The defence of Consent:

This defence is based on the principle of Volenti non
fit Injuria. Latin for: No wrong is done to one who
The general rule is that a person, who has voluntarily
agreed to suffer harm, cannot claim damages for such
harm. This consent to suffer harm can be either
express or implied. However, such consent must be
given freely and not obtained by fraud or any other
illegal means.
The Meaning of 'Consent in the law of Tort:
Consent may result from a specific agreement to run a
risk or it can be implied from the claimant's conduct.
Consent can either be in respect of an intentional 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.

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Plaintiff as wrongdoer
Lord Mansfield in Holman
v Johnson (1775) 1 Cowp
341, said that no court
will lend its aid to a man
who founds his cause of
action upon an immoral or
an illegal act. Bingham LJ
in Saunders v Edwards
[1987] 1 WLR 1116
overlaid the principle with
the following gloss:
Where the claimants
action in truth arises ex
turpi causa he is likely to
fail. Where the claimant
has suffered a genuine
wrong to which the
allegedly unlawful conduct
is incidental, he is likely to
See also English Cases :
Clunis v Camden and
Islington Health
Authority [1998] QB 978,
987. And Standard
Chartered Bank v
Pakistan National
Shipping Corporation
and others (No 2)
Defence of illegality on the part of plaintiff

This defence is based on the maxim Ex turpi causa
non oritur actio which means no action rises from an
immoral cause. In other words if one knowingly
engages in an illegal activity he will not be allowed to
profit from it.
This means that, if the action of the plaintiff was
unlawful itself, then the defendant might raise that fact
as a general defence.
Public policy requires that the Courts will not lend
their aid to a man who founds his action upon an
immoral or illegal act.
However, it remains difficult to identify when a claim
in tort will be barred on the basis of the defence of
illegality: part of the difficulty stems from the wide
variety of factual situations in which the illegal conduct
may arise.
The Defence of Inevitable Accident

An inevitable accident is an occurrence not avoidable
by any precaution a reasonable person would be
expected to take. The person invoking the defence
must show that something happened over which he or
she had no control, and the effect of which could not
have been prevented by using great skill and care. He
or she must show either the cause of the accident and
the inevitability of its result, or all the possible causes
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A plea of inevitable accident in negligence
cases is merely a repetition of the general rule
that an actor is not liable for harm unless the
harm was caused by the actors failure to
exercise reasonable care. it therefore follows
that: this defence cannot be raised in torts of
strict liability.
Inevitable Accident
A plaintiff seeking to
undermine or defeat a
defendants reliance on the
defence of inevitable
accident must challenge
with evidence and
argument the
defendants explanation of
how the accident, collision
or mishap occurred
without his negligence.
In Stanley -v- Powell
(1891) the claimant was
injured by a shot fired by
the defendant whilst on an
organised shoot. The shot
was aimed at pheasants
but glanced off a tree
before hitting the
See Also:
Holmes v Mather
(1875) LR 10 Ex 261
(Exch Ch); Stanley v
Powell [1891] 1 QB 86
and the inevitability of the result of each.
Thus, the defence asserts that where an accident is
purely inevitable, and is not caused by the fault of
either party, the loss lies where it falls.
According to the authorities, once the plaintiff
establishes a prima facie case of negligence, the onus
will shift to the defendant to prove inevitable accident.
In so doing, the defendant is required to show how the
accident took place and that the accident could not
have been
avoided by
exercise of
care and
A defendant may thus escape liability by showing one
of two things:
(i) prove the actual cause of what happened and that he
was not responsible for it, or
(ii) prove all the possible causes of the accident and
that he was not responsible for any of them.
In Road Accidents some of the factors that may be
taken into account include: road conditions, weather,
speed, the condition of the vehicle, the intensity of the
vehicles headlights, the drivers experience and his/her familiarity with the roadway,
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Act of God
In modern jurisdictions, "act of
God" is often broadened by
statute to include all natural
phenomena whose effects could
not be prevented by the exercise
of reasonable care and foresight.
Blacks Law Dictionary defines
an act of God as An act
occasioned exclusively by
violence of nature without the
interference of any human
agency. A natural necessity
proceeding from physical causes
alone without the intervention of
man. It is an accident which
could not have been occasioned
by human agency but proceeded
from physical causes alone.
In Nichols --v- Marsland
(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.

the drivers reaction to the risk presented, any evasive action taken, 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.).
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,
something which is a consequence of furious working
of natural forces.
An Act of God must not be within the possibility of
foresight and preventability of a reasonable human
Difference between an Act of God and
Inevitable Accident:
1. An accident without the involvement of humans is an
act of God. An accident which humans cant ordinarily
avoid is inevitable accident.
2. In case of inevitable accidents, the actions may be a
result of human activities. Hence, even if one knows
the occurrence is going to happen, one still cant avoid
it. However there is no room or possibility of human
foresight in case of an Act of God or Vis Major.

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Some other defences under Kenya law:

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.
Where the damage is not a necessary consequence of what is authorised by Statute
then this cannot give rise to the defence.

There are two types of mistakes
a) Mistake of Law.
Mistake of law is no defence and ignorance of law, no excuse
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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

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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).
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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
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.

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Battery is:
1) intentional, (2) harmful or
offensive (3) contact with the (4)
plaintiff. (Example: A
intentionally punches B in the
nose. A has committed battery.)
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
bodily contact; or (2) A intended
to cause an imminent
apprehension on Bs part of a
harmful or offensive bodily
Example 1: If A shoots at B,
intending to hit him with a bullet
then A has the necessary intent
for battery.
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 bodily
damage. However, battery also
covers contacts, which are
merely offensive The test is
whether or not the contact was
permitted by the plaintiff.
Trespass to the person

Under Kenyan Laws this is defined as an act of the
defendant which causes the plaintiff reasonable
apprehension of the infliction of a battery on him by
the defendant. It is an act of the defendant which
directly and either intentionally or negligently causes
the plaintiff immediately to apprehend a contact with
the body of the defendant .This tort under kenya law
protects a person from mental anxiety.
Rules of the Tort
1. There must be some apprehension of contact
2. There must be a means of carrying out the
threat by the defendant
3. The tort is actionable per se.
4. The tort is generally associated with battery
5. Mere words without body movement do not
constitute assault.
Assault under Kenya law is constituted by:-
i. A display or show of force
ii. Pointing of a loaded gun
iii. Cursing in a threatening manner

This is defined under Kenya law as the intentional and
direct application of force to another person. It has
been defined as any act of the defendant which directly
and either intentionally or negligently causes some
physical contact with the person or body of the plaintiff
without his consent.
As a general rule battery is based on an intentional act
and is both a crime and a tort.
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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
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
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 un-
permitted contacts with his body. The principal remedy is monetary award in

Definition: Assault is: (1) intentionally (2) causing apprehension of (3) harmful or
offensive contact
Both torts of assault and battery are actionable per se under Kenya law.
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Definition: False imprisonment is: (1)
a sufficient act of restraint that (2)
confines someone to a (3) bounded
In Big Town Nursing Home, Inc. v.
Newman (US) it was held that:
False imprisonment is the direct
restraint of one person of physical
liberty by another without adequate
legal justification.
(a) One person cannot give away the
rights to liberty of another unless
there is (1) a power of attorney, or
(2) legal guardianship, or (3) mental
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
imprisonment cannot be committed
merely by negligent or reckless acts.
Confinement: The idea of
confinement is that A is held within
certain limits, 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
The imprisonment can be carried out
by direct physical means, but also by
threats or by the assertion of legal
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.

False imprisonment

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.
This tort under Kenya law protects a persons freedom
by making unlawful confinement actionable.
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.
Main Ingredients of the Tort
(a) Knowledge of the plaintiff
Under Kenya laws, knowledge of the restraint is not
necessary but may affect the quantum of damages
(b) Intention and directness
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
(c) The restraint must be complete
There must be a total restraint placed upon the plaintiffs freedom of action.
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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
7. The tort is actionable per se.
8. The principal remedy is a monetary award in damages.

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Ingredients of Trespass
Since trespass is a wrong done to the
possessor of land, only he (rather
than the owner, unless, of course, the
owner is also in possession) can sue.
Possession includes not only physical
occupation, but occupation through
servants and agents. Mere use, for
example by a lodger or licensee
(visitor) is not possession in law.
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 tenant who, if he
remains on at the end of his tenancy,
retains possession as a statutory
tenant and therefore does not
become a trespasser. Placing
objects on land. If a right to enter
on the land is abused this may alter
the position of a lawful visitor to that
of a trespasser:
If a person enters in exercise of a
common law or statutory right and
abuses the right by a positive act he
is deemed to be a trespasser from the
moment he entered the premises, i.e.
a trespass ab initio (from the
Trespass to Land

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

Common law trespass
As generally used, trespass occurs when either:
(1) Defendant intentionally enters Plaintiffs land,
without permission.
(2) Defendant remains on Plaintiffs land without the
right to be there, even if she entered rightfully.
(3) Defendant puts an object on (or refuses to remove
an object from) Plaintiffs land without permission.
Trespass a tort actionable per se, i.e. without proof of
loss. It is actionable merely because it has been
The general defences of volenti, necessity, inevitable
accident, self-defence and statutory authority all apply,
but mistake is no defence.
Special defences, however, are:
Entry to exercise a common law right. For example, if
A enters B's land to repossess his goods that B has
wrongfully taken onto his land.
Entry by licence. When the licence expires the person
becomes a trespasser when he does not leave, in
contrast to a lessee/tenant who remains in possession.
Remedies available to the person in possession:
i. Damages, nominal or compensatory.
ii. 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).
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Remedies available to an owner who has been wrongfully dispossessed:
i. Re-entry - however the re-entry must be peaceful.
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 defendants use and
occupation of the land) whilst the defendant was wrongfully in possession


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. 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.
ii. Destroy or altering
iii. Using a persons goods without consent is to convert them
iv. Receiving: the voluntary receipt of anothers goods without consent is
However, receiving of anothers 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
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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
vi. Disposition without delivery - a person who sells another goods without
authority but without delivering them to the buyer converts them
vii. Disposition and delivery - A person who sells anothers 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 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.

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Donoghue -v- Stevenson (1932).
The appellant, Mrs. Donoghue and a
friend went into a cafe where the
friend purchased a bottle of ginger
beer for Mrs. Donoghue.
The appellant (Mrs. Donoghue) had
drunk one glass from the bottle of
ginger beer but as she poured out the
second glass, the decomposed
remains of a snail came out of the
bottle. The appellant became ill as a
result and sued the manufacturers,
claiming damages. The question
before the House of Lords was
whether the manufacturer of a
product owes the consumer a duty of
care in tort to prevent injury.
The importance of this decision was
that the consumer (i.e. Mrs.
Donoghue) was not the purchaser of
the drink, but a friend of the
purchaser. There was, therefore, no
contractual relationship between her
and the manufacturers of the ginger
beer. The manufacturers claimed
that as there was no contractual
relationship between them, they
could not be liable to her. The House
of Lords decided otherwise, thus
liberating liability in negligence
from the rigidity of privity of
contract which had until then been
the deciding factor, it established a
new category of duty owed by a
manufacturer to the ultimate

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,
interference with person and property. Where the
interference is intentional, the appropriate tort is
trespass to the person, trespass to goods or trespass to
Where the interference is involuntary (i.e.
unintentional) but negligent the appropriate action lies
in the tort of negligence.
As an independent tort, negligence can be defined as
The breach of a legal duty to take care, owed by
the defendant to the claimant, resulting in
unintended harm to the claimant
There are three essential ingredients of the tort that
must be established:
1. The existence of a legal duty of care owed by the
defendant to the claimant
2. A breach of that legal duty by the defendant
3. Injury to the person or damage to property suffered
by the claimant arising out of the breach of the duty.
It is necessary to examine these three ingredients in
The existence of a legal duty of care
The claimant must satisfy the court that a legal duty of
care is owed to him by the defendant.
A legal duty of care means a duty recognised by the law.
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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
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
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

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
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
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....................
The duty of care must be owed to the claimant:
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In Bourhill -v- Young (1943), a
motorcyclist, driving too fast, was
involved in an accident with 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 her to give birth
later to a still-born child. The court
held that she was beyond the area of
foreseeable danger and that the
defendant owed no duty of care to
her. It would not have been
reasonable for the defendant to have
contemplated that the accident
would have had the repercussions,
with regard to the claimant, that it
Two more cases show a wider
operation of this foreseeability. In
Dooley -v-Cammell Laird & Co. Ltd.
(1951), the claimant recovered
damages for 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
recovered damages for nervous
shock after his involvement in a
rescue operation following a train
accident. The court held that it was
foreseeable that persons might come
to the rescue in the case of a crash
and might suffer nervous shock as a
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)
would, in the circumstances, have harmed the
Foreseeability and proximity
The concept of foreseeability or remoteness of
foreseeability is called the test for proximity.
Thus one can ask:
Was the commission of the tort the proximate cause
of the damage complained of?
Technically, the concept of foreseeability and
proximate cause is one and the same, looked at from
different angles.
Space, time, distance, the nature of the injuries
sustained and the relationship of the claimant to the
immediate victim of the accident are factors to be
weighed, but not legal limitations, when the test of
reasonable foreseeability is to he applied. Per Lord
Scarman in McLoughlic -v- OBrian (1982).
It is firmly established that a careless/negligent person
should not have to compensate everyone that might
suffer as a result of his acts or omissions.
For example: The English case of Alcock & others -v-
Chief Constable of South Yorkshire Police
(1991) (the Hillsborough disaster case) is typical of a
recent move towards restricting the extension of the
duty of care as a matter of public policy.
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Charles Mwaura Kamau

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.
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Charles Mwaura Kamau

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
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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
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

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
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Charles Mwaura Kamau

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 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 reasonable man, but not
damage by fire since oil on water
does not usually ignite. The
ignition of the oil only occurred
because the hot metal happened
to fall onto a piece of highly
combustible cotton waste and
such an eventuality was not
reasonably foreseeable.
In torts of strict liability (i.e. the
rule in Rylands-v-Fletcher and in
breach of statutory duty), the
reasonable foreseeability test
does not apply. The defendant
will have to compensate the
claimant for all the damage that
is the direct result of the tort.
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 claimants 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
Where the claimant contributes to the accident,
e.g. both the claimant and the defendant were
driving negligently when the accident occurred
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

Remoteness of Damage:
The second general defence in Tort is that the damage
suffered was not suffered as a direct result of the tort,
i.e. it is too remote from the tort itself. This is called
remoteness of damage.
In essence, a defendant is not liable for damage, which
is not sufficiently clearly linked with the tortuous act of
the defendant.
If, for example, the claimant would have suffered the
same injury despite the defendants tortuous conduct,
he will not receive compensation.
The test, which is one of reasonable foreseeability as
established in The Wagon Mound (1961) and
provides that:
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Charles Mwaura Kamau

A defendant is only liable for the consequence of his act that a reasonable man
would have foreseen.
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 tort-
feasor (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.
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Charles Mwaura Kamau


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.

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
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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.
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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

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