Meto & Another v Kihanguru & 3 Others
The bottom line
#Kenya's Court of Appeal confirmed that a lorry owner must pay for his driver's negligence, even if the driver disobeyed instructions not to carry passengers.
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 (owner of the lorry) is vicariously liable for the negligent acts of the first appellant (its driver) notwithstanding the driver's alleged deviation from instructions not to carry passengers
- 2.Whether the respondents were trespassers on the lorry or bona fide passengers/hirers
- 3.Whether the second appellant discharged its burden of proving the presence of a notice prohibiting unauthorised passengers
Key legal issues
#Vicarious liability of vehicle owner for driver's negligence despite instructions not to carry passengers
The second appellant is vicariously liable; the driver was its servant and agent using the lorry for hire at its express instructions, and any specific instructions were a matter internal to the employment relationship
Applying Morgans v Launchbury, liability on the owner is fixed where the driver is the owner's servant or acting as his agent, using the vehicle at the owner's request in performance of a delegated task. Here the driver was authorised to ply for hire to the public, the respondents were expected to board, and no prohibition notice existed. Internal instructions cannot defeat third-party claims.
Limits of a second appeal - concurrent findings of fact
Findings of fact by the two courts below, not being points of law, cannot be canvassed in a second appeal
The Court noted that the two courts below concurrently established the salient facts - that the respondents were permitted hirers, no notice was displayed, and the driver acted in the course of employment. As these are not matters of law, the Court was not entitled to interfere with them, and grounds 2 and 3 of the memorandum of appeal necessarily failed.
Distinguishing Twine v Bean's Express Ltd
Twine was distinguished on its facts: unlike Twine, there was no notice prohibiting passengers, the driver was authorised to hire out the lorry to the public, and the respondents were expected to accompany their goods
In Twine the employer had expressly instructed the driver not to carry unauthorised travellers and displayed prominent notices to that effect, so the employer could not reasonably anticipate the passenger. Here the employer authorised the driver to ply for hire to the general public and knew the hirers would board the lorry, making the facts distinctly different.
Legal principles established
#- An owner of a vehicle is vicariously liable for the negligence of its driver where the driver is the owner's servant acting on the owner's behalf, using the vehicle at the owner's express or implied request in performance of a task delegated by the owner; internal instructions to the driver do not affect liability to third parties
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- HCCC No 74 of 1995
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the appellate jurisdiction of the Court (no specific provision quoted in the judgment)
Relief refused
#Second appellant's contention that it owed no duty of care to the respondents as trespassers
Concurrent findings of fact showed respondents were permitted hirers and no prohibition notice was displayed; findings of fact not canvassable on second appeal
Costs
The appeal is dismissed with costs to the respondents
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.
In order to fix liability on the owner of a car for the negligence of the driver, it is necessary to show either that the driver was the owner’s servant or at the material time the driver was acting on the owner’s behalf as his agent.
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.
Even if the second appellant had given to the driver specific instructions, that would simply be a matter between the second appellant and his employee or agent and would in no way affect the second appellant’s liability to the respondents.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Meto & Another v Kihanguru & 3 Others", Case Analysis (2002). Civil Appeal No 120 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/314/eng@2002-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.