Nandwa v Kenya Nazi Ltd [1988] KECA 42 (KLR)
The bottom line
#Kenya's Court of Appeal held an employer fully liable for injuries caused by a defective company vehicle it failed to maintain.
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 defendant employer was negligent in allowing the plaintiff to drive a vehicle with defective steering and brakes
- 2.Whether the trial judge misdirected himself in placing a heavy burden of proof on the plaintiff and relying on hearsay of a police inspection that never took place
- 3.Whether the plaintiff was guilty of negligence in overtaking with a defective vehicle or in failing to report the defects
Key legal issues
#Employer's liability for a defective vehicle used on the road
The defendant employer was held entirely negligent for allowing a defective motor vehicle to be used on the road, the plaintiff having done what a reasonable driver could do.
The plaintiff noticed the steering defect ten minutes before the accident, alerted his companion, and drove at a moderate speed. The defence witnesses corroborated his account. No vehicle inspection or police report existed, the maintenance book was not produced, and the earlier driver who could have reported defects was not called. The evidence of mechanical failure was unmet by the defence.
Duty to maintain vehicles under the Road Traffic Act and duty of care to employees
It was the defendant's duty to keep its vehicle in good mechanical repair and to provide a safe system of work; its inspection system did not cover the eventuality in this case.
Platt JA held that the defendant, as owner, was under a statutory duty under the Road Traffic Act to keep the vehicle in good repair and a common-law duty of care not to expose the plaintiff employee to risk. Failure of maintenance amounted to failure to take precautions for the employee's safety, even if 'permitting' with knowledge was not made out.
Burden of proof and res ipsa loquitur
The formal burden of proof does not shift, but a prima facie inference of negligence suffices unless the defendant provides an adequate answer; res ipsa loquitur itself was not applicable as there was direct evidence of the cause.
Relying on Henderson v Henry E Jenkins & Sons, the court held that once the plaintiff proved facts raising a prima facie inference of negligence in inspection or maintenance, the defendant had to displace it, which it did not. Res ipsa loquitur was inapplicable because there was direct evidence of mechanical failure, though the proven facts spoke for themselves.
Contributory negligence in overtaking
There was no negligence in overtaking another vehicle when it was safe to do so and no oncoming traffic; no contributory negligence was established.
The court rejected the respondent's submission that the appellant's act of overtaking was negligent. Overtaking is a normal procedure where circumstances and road conditions permit, and there was no oncoming vehicle. No evidence supported contributory negligence.
Legal principles established
#- An employer who allows a defective motor vehicle to be driven on the public road is liable in negligence for resulting injury, even in the absence of knowledge of the defect.
- The formal burden of proof in negligence does not shift, but a prima facie inference of negligence suffices unless the defendant gives an adequate answer to displace it.
- Evidence need not be pleaded; the doctrine of res ipsa loquitur is a rule of evidence affecting the onus of proof.
- Overtaking another vehicle when it is safe to do so is not negligence.
Court orders
#- 1.Appeal allowed; judgment of the High Court dismissing the plaintiff's claim set aside
- 2.Judgment substituted for the plaintiff that the defendant is entirely negligent for allowing a defective motor vehicle to be used on the road, resulting in the accident and the plaintiff's injuries
- 3.Costs of the appeal and of the High Court awarded to the appellant; taxed costs to carry interest from the date of taxation to payment in full
- 4.Agreed damages to carry interest from the date of judgment to the date of payment in full at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
First judgment of the court; traced the evidence, held the defendant liable in negligence for allowing a defective vehicle on the road, and proposed allowing the appeal with costs.
I would allow this appeal and set aside the judgment of the High Court in dismissing the plaintiff’s claim.p. 3
Wrote the judgment
Separate concurring judgment agreeing with Gachuhi JA's conclusions, holding the employer liable for failure to maintain the vehicle and observing that res ipsa loquitur was not applicable since there was direct evidence of the cause.
I agree with the orders proposed by Gachuhi JA and as Masime Ag JA also agrees, it is so ordered.p. 4
Wrote the judgment
Third judgment agreeing that the appeal should be allowed, the trial judge having misdirected himself on the evidence, and that the dismissal should be set aside and judgment entered for the appellant with costs.
In the result I agree with my Lords (Platt and Gachuhi) that this appeal should be allowedp. 5
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory appeal; specific provision not stated)
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.
I would allow this appeal and set aside the judgment of the High Court in dismissing the plaintiff’s claim. I would substitute therefore judgment for the plaintiff that the defendant is entirely held negligent for allowing defective motor vehicle to be used on the road that ended in an accident whereby the plaintiff was injured.
the negligence has to be found in the defendant for allowing the driver to drive a defective motor vehicle on the public road
A motor vehicle which has its steering gear, by reason of wear, in such imperfect condition that the driver is liable to loose control of the steering, is a thing which on a highway is necessarily dangerous to persons using the highway
The formal burden of proof does not shift.
It was the duty of the defendant company to keep its vehicle in good mechanical repair under the Road Traffic Act. It was also under a duty of care to the plaintiff to provide a safe system of working and not to expose him to risk.
In the result I agree with my Lords (Platt and Gachuhi) that this appeal should be allowed and that the order of the learned trial judge dismissing the appellant’s plaint with costs should be set aside and substituted with an order giving judgment to the appellant as prayed in the plaint with an order for costs both in this Court and in the Court below.
Issues in the judgment
#The judgment itself cites Hutchins v Maunder with two differing TLR page references
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiongo v Waweru & another (Civil Appeal 544 of 2019) [2026] KECA 826 (KLR)[2026] KECA 826 (KLR)30 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Nandwa v Kenya Nazi Ltd [1988] KECA 42 (KLR)", Case Analysis (1988). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/42/eng@1988-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.