Chesire & another v HZ & Company Limited [1982] KECA 9 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the employee was acting in the course of his employment with the employer at the material time so as to make the employer vicariously liable (determined as a preliminary issue by consent)
- 2.To what damages the plaintiffs in each suit are entitled
- 3.Whether the learned judge misdirected himself in considering whether the employee had been given specific instructions as to where he was required to perform his duties (cross-appeal)
- 4.Whether the judge erred in finding that the employee was driving the shoveller in connection with his duties at the time of the accident at Radadi Camp (cross-appeal)
- 5.Whether the learned judge erred in failing to consider the evidence contained in the record of the criminal case admitted by consent at the trial (cross-appeal)
Key legal issues
#Whether the employee was acting within the scope of his employment when he drove the shoveller from Radadi Camp to Mogotio Police Station
The employer, bearing the onus, failed to prove the employee was exclusively on his own business; the journey was at least partly on the employer's business (reporting an accident caused in the course of employment), so the employer is vicariously liable.
The employee was employed to drive the shoveller, was never instructed not to drive it on roads, and habitually drove it on public roads between quarries with the employer's knowledge. He was on duty at the material time, and the journey to Mogotio was at least partly to report an accident he had caused in the course of his employment. Since a master is liable where the servant acts partly on the master's business, and the burden lay on the employer, the employer could not escape liability.
Incidence of the burden of proof on the scope-of-employment issue
By consent the onus lay on the employer to prove the employee was NOT acting in the course of his employment, and that onus was not discharged.
The parties agreed the preliminary issue would be determined with the burden on the employer. The employer relied on supervisors whose evidence was undermined by uncontradicted police and watchman evidence that shovellers were habitually driven on public roads, sometimes by the employee, without objection or instruction to the contrary. The employer also failed to call the employee, who was available in prison, to explain his purpose.
Effect of admitting the record of the criminal proceedings by consent
Consent to admit a record of previous proceedings does not render all its contents evidence in the civil suit; it proved the conviction and allowed use of exhibits and cross-examination on prior depositions.
The employer contended that because the criminal record was admitted as an exhibit, all its contents were automatically evidence. The court rejected this as unsupported by authority, while acknowledging that parties may agree facts or agree to accept prior depositions as true statements, provided the agreement is absolutely clear and unambiguous.
Legal principles established
#- A master is liable for the acts of his servant committed within the course of his employment, whether negligent, deliberate, wanton or criminal; the test is whether the acts were done in the course of employment.
- The master is exempt from vicarious liability only when the servant was exclusively on his own business.
- Where a vehicle is negligently driven for the purposes both of the employer and a third party (or the servant personally), the employer is liable.
- Admitting in evidence by consent a record of previous proceedings does not automatically make all the contents of those proceedings evidence in the subsequent proceedings.
Court orders
#- 1.That the appeal be allowed with costs
- 2.That the judgment and decree, the subject of this appeal, be set aside and that a judgment and decree be substituted in favour of the plaintiffs in the consolidated suits on the preliminary issue as to liability, with costs
- 3.That the cross-appeal be dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Agreed with Law JA that the employer had not proved the employee was exclusively on his own business, and agreed with the orders proposed.
I agree with Law JA, the respondent employer did not prove on the balance of probabilities that its employee was exclusively on his own business when he drove the shoveller from the junction of the road to the camp and the main road to the police station at Mogotio and therefore the respondent company is liable.p. 5
- On appeal from
- High Court of Kenya
- Nakuru Civil Suit No 60 of 1980 and Nakuru Civil Suit No 106 of 1980 (consolidated)
- Jurisdiction invoked
- First appeal to the Court of Appeal against the decision of the High Court (Nakuru) dismissing the consolidated suits
- Consolidated with
- Nakuru Civil Suit No 60 of 1980, Nakuru Civil Suit No 106 of 1980
Relief refused
#The employer's cross-appeal (all three grounds)
The employer, on whom lay the burden of proof, did not discharge the onus of showing the employee was acting outside the scope of his employment; admitting a record of previous proceedings by consent does not make all their contents evidence in subsequent proceedings.
Costs
The appeal allowed with costs to the appellants; judgment and decree on the preliminary issue of liability substituted in favour of the plaintiffs with costs; the cross-appeal dismissed with costs to the appellants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. That the appeal be allowed with costs;
2. That the judgment and decree, the subject of this appeal, be set aside and that a judgment and decree be substituted in favour of the plaintiffs in the consolidated suits on the preliminary issue as to liability, with costs;
3. That the cross-appeal be dismissed with costs.
The master is exempt only when the servant was exclusively on his own business.
I find myself in agreement with Mr Shah’s submission that, in driving the shoveller to Mogotio, the employee was not engaged on purely personal business which had nothing to do with his employer.
Certainly the employer, on whom lay the onus of proving the contrary, has not discharged that onus.
Admitting in evidence by consent a record of previous proceedings does not mean that all the contents of those proceedings automatically become evidence in the subsequent proceedings
Issues in the judgment
#The judgment does not state the actual names of the parties or the appellate case number; the parties are identified only descriptively (first appellant, widow of the deceased, employer) and by reference to the consolidated trial suit numbers.
The judgment refers to the accident at Radadi Camp as occurring at a distance of 'about 500 yards' from the quarry and later describes the drive as 'a distance of 500 metres'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chesire & another v HZ & Company Limited [1982] KECA 9 (KLR)", Case Analysis (1982). Appeal from Nakuru Civil Suit No 60 of 1980 and Nakuru Civil Suit No 106 of 1980. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/9/eng@1982-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.