Kibet Arap Meto & Another vs Philip W. Kihanguru & 3 Others [2002] KECA 192 (KLR)
The bottom line
#A lorry owner must pay for injuries its driver causes, even when the driver disobeyed the owner's private 'no passengers' instruction.
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 second appellant, as owner of the lorry, is vicariously liable for the first appellant driver's negligence where the driver carried the respondents as passengers contrary to the owner's instructions - identified by the court as 'the only substantial ground of appeal before us'.
- 2.Whether the concurrent findings of fact of the two courts below (that the respondents were hirers and not trespassers, that no prohibition notice was displayed on the lorry, and that the driver was acting in the course of his employment) can be canvassed in a second appeal.
Key legal issues
#Scope of a second appeal: whether the concurrent factual findings of the two courts below are open to challenge.
They are not. The findings that the respondents were hirers and not trespassers, that no prohibition notice was displayed, and that the driver was acting in the course of his employment were findings of fact, not law; grounds 2 and 3 of the memorandum of appeal, which challenged them, necessarily failed.
The court reiterated the settled limitation that a second appeal confines the appellate court to points or matters of law. Counsel for the appellants properly declined to address the court on the concurrent findings. Since the findings that the respondents were permitted hirers, that no notice was displayed, and that the driver was transporting the respondents' goods in the course of his employment were factual, the court had no power to interfere with them and those grounds of appeal had to fail.
Whether the owner of the lorry is vicariously liable for the driver's negligence where the driver carried passengers contrary to the owner's instructions.
Yes. The driver was the second appellant's servant, acting as its agent and using the lorry for hire at the owner's express instructions; the agency test in Morgans v Launchbury was satisfied, so the owner is jointly and severally liable with the driver for the damages awarded.
Applying the agency test from Morgans v Launchbury, the court found the driver was using the lorry at the owner's express request and in performance of a delegated task: plying for transport business and hiring out the lorry to the general public. The driver admitted his negligence, and it was undisputed that he was the owner's servant and agent at the material time. A mere internal instruction against passengers, unaccompanied by any displayed notice, did not take the journey outside the scope of employment.
Whether Twine v Bean's Express, relied on by the appellants, compelled a finding of no vicarious liability.
No. Twine was distinguishable on three facts: no notice or warning was displayed on the lorry; the driver was authorised by his employer to ply for transport business and hire out the lorry to the general public; and the owner knew the hirers were expected to accompany their goods on board.
In Twine the employer had expressly forbidden the carriage of passengers, displayed prominent notices to that effect on the van, and could not reasonably have anticipated the victim as a passenger; liability was accordingly denied. Here the converse was true on each point, so the authority offered the owner no shelter. The court treated Morgans v Launchbury as in all fours with the present case and adopted its agency analysis as the governing doctrine.
Legal principles established
#- On a second appeal, the Court of Appeal cannot entertain challenges to concurrent findings of fact of the two courts below; only points or matters of law are open to it, and it is not entitled to interfere with such findings.
- An owner of a vehicle who expressly or impliedly requests or instructs the driver to drive it in performance of a task or duty carried out for the owner is vicariously liable for the driver's negligence in the operation of the vehicle.
- A prohibition on carrying passengers communicated only to the driver, with no notice or warning displayed on the vehicle, does not convert hirers permitted onto the vehicle into trespassers, nor does it displace the owner's vicarious liability where the driver was authorised to ply the vehicle for hire to the general public.
Court orders
#- 1.The appeal is dismissed.
- 2.The appeal is dismissed with costs (the appellants to bear the costs of the appeal).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 74 of 1995
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter is before the Court of Appeal at Nakuru as a second appeal from the High Court of Kenya at Nakuru.
Relief refused
#The appellants' plea that the second appellant owed no duty of care to the respondents because, having boarded contrary to the owner's no-passengers instruction, they were trespassers on the lorry.
The two courts below concurrently found that the respondents were permitted hirers and that no notice or warning of the prohibition was displayed anywhere on the lorry; those being findings of fact, they could not be revisited on second appeal.
The submission that the driver's contravention of the instruction not to carry passengers constituted a deviation sufficient to take his actions outside the scope of his employment, so that no vicarious liability lay against the second appellant.
The driver was the second appellant's servant, acting as its agent and using the lorry for hire at the owner's express instructions; the agency test in Morgans v Launchbury was satisfied and Twine v Bean's Express was distinguished on its facts.
Costs
The appeal was dismissed with costs - 'in the result, this appeal should be dismissed with costs. We so order.'
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.
This being a second appeal the above findings not being points or matters of law cannot be canvassed before us and we would not be entitled to interfere with them.
Where A, the owner of a vehicle, expressly or impliedly requests or instructs B to drive the vehicle in performance of some task or duty carried out for A, A will be vicariously liable for B's negligence in the operation of the vehicle.
The respondents were not tresspassers on the lorry but were hirers who had been permitted thereon by the first appellant.
For these reasons we think that the two courts below were right in their decisions and in the result, this appeal should be dismissed with costs. We so order.
Issues in the judgment
#Corrupted party designation in the heading: '1ST RESOIBDEBT' appears where '1ST RESPONDENT' is evidently intended.
Garbled, interleaved text at the transition from the opening summary to the facts, apparently merging 'in favour of the respondents' with 'The facts giving rise to the suit'.
The name of the second authority is corrupted in the text, reading 'LA UNCHBURY' where 'LAUNCHBURY' is evidently intended.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibet Arap Meto & Another vs Philip W. Kihanguru & 3 Others [2002] KECA 192 (KLR)", Case Analysis (2002). Civil Appeal 120 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/192/eng@2002-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.