Electoral Commission of Kenya v Nunow Abdi Abdullahi [2005] KECA 38 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a family's compensation claim against the Electoral Commission, ruling it was not responsible for a poll official's drowning during the 1997 elections.
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 appellant was responsible for what happened to the deceased in the accident of 2nd January, 1998.
- 2.Whether the deceased (or the respondent) was entitled to recover damages from the appellant.
- 3.Whether the appellant placed the deceased in a situation that obliged him to adopt a perilous alternative in crossing the River Tana.
- 4.Whether the Agreement of Service contained an implied term that the appellant would provide the deceased with return transport.
- 5.Whether the appellant could be held vicariously liable for the acts of the boat-owner as an independent contractor.
- 6.Whether the deceased was still an employee of the appellant at the time of the accident.
Key legal issues
#Whether the appellant (Electoral Commission of Kenya) was responsible for the death of the deceased.
No. The Commission did not place the deceased in a situation obliging him to adopt a perilous alternative; crossing the Tana River by canoe was the general and not an inherently perilous mode of crossing, and the death was an unfortunate accident.
The Court applied its own decision in Mohammed Farrah v Kenya Ports Authority, which adopted Jones v Boyce: a defendant is liable where his conduct places the claimant before a perilous alternative. Although the election officials were left behind when the materials were airlifted, remaining at the polling station did not oblige the deceased to take a dangerous route. Only one canoe capsized while others crossed safely, so the chosen mode was ordinarily safe and the drowning an unfortunate accident rather than the consequence of a peril imposed by the appellant.
Whether the Agreement of Service contained an implied term that the appellant would provide the deceased with return transport.
No. The Court declined to imply any term, further holding that since the plaint never pleaded an implied term the respondent could not assert one, and that even if pleaded the term would not have been held to exist.
The Agreement of Service was silent on transport. The trial judge had implied a contractual obligation from the circumstances - the appellant knew floods had cut off Musalane and had airlifted the officials in. The Court of Appeal disagreed, holding that what is not in the contract cannot be implied. It added that the plaint made no reference to an implied term, so the point was not open to the plaintiff, and that even if pleaded the term would not have been held to exist on a ten-day casual engagement.
Whether the appellant could be held vicariously liable for the capsizing of the hired canoe.
No. The boat-owner was an independent contractor for whose acts the appellant could not be held vicariously liable, and the loss was in any event not foreseeable.
The Court invoked Weld-Blundell v Stephens for the proposition that no duty is imposed in respect of loss occasioned to another by a third party, even if foreseeable and preventable. The deceased himself negotiated transport with the owners of the canoes. The capsizing was an isolated incident - other boats crossed safely - so foreseeability failed; and even if the risk had been foreseeable, liability could not attach because the boat-owner was an independent contractor. Hiring the canoe was entirely the deceased's own decision.
Whether the deceased was still an employee of the appellant when the accident occurred.
Strictly speaking, no. The ten-day contract of service ran from 21st to 30th December 1997, and the accident occurred on 2nd January 1998.
The deceased was appointed Deputy Presiding Officer on casual terms for ten days with effect from 21st to 30th December 1997 under a written Agreement of Service which he signed. By 2nd January 1998 the engagement had expired and the employment relationship had ended. The Court added, in the alternative, that even if the deceased was still pursuing his duties to the counting hall, his act of hiring a canoe was entirely his own decision for which the appellant could not be held responsible.
What is the duty of the Court of Appeal on a first appeal?
A first appeal is by way of retrial: the Court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Relying on the classic statement of Sir Clement De Lestang VP in Selle v Associated Motor Boat Company, later cited with approval in Jivanji v Sanyo Electrical Company Ltd, the Court affirmed that it is not bound by the trial judge's findings of fact where he has clearly failed to take account of particular circumstances or probabilities, or where a demeanour-based impression is inconsistent with the evidence generally. The Court noted that in this appeal the facts were not in any serious dispute.
Legal principles established
#- On a first appeal from the High Court, the Court of Appeal acts by way of retrial: it must reconsider the evidence, evaluate it itself and draw its own conclusions, making due allowance for not having seen or heard the witnesses, and it is not bound by the trial judge's findings of fact where he has clearly failed to take account of particular circumstances or probabilities.
- A defendant is responsible for a claimant's injury where the defendant's conduct placed the claimant in a situation that obliged him to adopt a perilous alternative or remain in certain peril; but if the injury results from the claimant's own rashness or imprudence in apprehending a danger that did not exist, he cannot recover.
- Travelling by the general and ordinarily safe mode of passage is not an inherently perilous alternative for purposes of the perilous-alternative doctrine; an accident occurring while using the ordinary mode is not attributable to the party who left the claimant behind.
- No term may be implied into a contract where the term does not appear in it, and a litigant cannot assert an implied term that was not pleaded; a contract silent on transport carries no implied obligation to provide it.
- No duty is imposed on one person in respect of loss or injury occasioned to another by a third party, even if that loss or injury is foreseeable and preventable.
- An employer is not vicariously liable for the acts of an independent contractor engaged by the claimant himself, even where the loss was allegedly foreseeable.
Court orders
#- 1.Appeal allowed.
- 2.Judgment of the superior court (High Court at Nyeri) set aside.
- 3.The respondent's suit in the High Court dismissed with costs.
- 4.The appellant awarded 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 Nyeri
- H.C.C.C. No. 331 of 1998
- Jurisdiction invoked
- Not expressly invoked in the judgment; the matter proceeded as a first appeal from the High Court to the Court of Appeal, the Court stating only: 'This being a first appeal we are alive to our duty on a first appeal'
Relief refused
#The plaintiff's claim for special damages of Shs 20,050 and general damages (awarded by the High Court at Kshs 667,438 with costs and interest)
The Court concluded the appellant could not be held responsible for the death; the suit was accordingly dismissed.
An inference that the contract of service contained an implied term to provide the deceased with transport
The Agreement of Service was silent on transport, no implied term was pleaded in the plaint, and in any event the Court would not have held such a term to exist.
Costs
The respondent's suit in the High Court was dismissed with costs (to the appellant), and the appellant was awarded the costs of the appeal: 'order that the respondent's suit in the High Court be dismissed with costs. We also award to the appellant the costs of the appeal.'
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.
Accordingly, we allow this appeal set aside the judgment of the superior court and order that the respondent's suit in the High Court be dismissed with costs. We also award to the appellant the costs of the appeal. It is so ordered.
In our view the relevant authority in a situation of this nature is this Court's decision in Mohammed Farrah v Kenya Ports Authority [1988-92] 2 KAR 283 in which the Court adopted the decision in Jones v Boyce
If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences.
At that moment in time we cannot say that the deceased was placed in such a situation as to oblige him to adopt the alternative of a dangerous route.
It must also be remembered that crossing the river in a canoe was the general mode of crossing the river. It was not an inherently perilous way of crossing the river.
What is not in the contract cannot be implied. Even the plaint made no reference to the existence of any implied term so that it was not open to the plaintiff to assert such a term.
But even if it had been foreseeable the boat-owner was an independent contractor for whose acts the appellant could not be held vicariously liable.
Hence, strictly speaking, by the time the accident occurred on 2nd January, 1998 the deceased was no longer an employee of the appellant.
An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such appeal are well settled.
we have come to the conclusion that the appellant could not be held responsible for what befell the deceased in the unfortunate accident of 2nd January, 1998.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Electoral Commission of Kenya v Nunow Abdi Abdullahi [2005] KECA 38 (KLR)", Case Analysis (2005). Civil Appeal 40 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/38/eng@2005-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.