Equator Distributors v Joel Muriu & 3 others

The Court examined the limited grant dated 2nd July 1999 issued in High Court Succession Cause No. 1204 of 1999 in respect of the estate of Rachel Wangui Muriu. The grant expressly limited the purpose to instituting proceedings in the suit. On that basis the Court was satisfied the 1st respondent had capacity and locus, rejecting the appellant's contention that only a full grant conferred capacity to sue. The trial court's finding to the same effect was affirmed.

Drawing on comparative authority (People v. Benson; West v. Jaloff) and Kenyan authority on point-of-impact evidence, the Court held a police sketch depicts the layout of the scene and the relationship of vehicles to the surroundings, shedding light on speed and direction. The court, not the sketch, determines the facts from all the evidence. The appellant failed to show the trial court acted on wrong material in giving weight to the sketch.

The Court reaffirmed John Nderi Wamugi and Anyanzwa v. Luigi De Casper, holding that pegging vicarious liability on legal ownership to the exclusion of employer/employee relationship would amount to grave injustice. The 3rd respondent had supervisory power over its driver, not the appellant. The appellant's liability, if any, rested on putting its vehicle in the possession of the 3rd respondent, who engaged a negligent driver, and on the duty of care owed to other road users. The delivery arrangement, being outside the sale contract, was governed by negligence and bailor-bailee law.

The arrangement to deliver the lorry from Nairobi to Voi was not part of the sale agreement. The relationship for delivery was one of bailor and bailee, and the bailee owes a duty of care to the bailor. There is no absolute rule that a gratuitous agent or bailee is not liable to the principal; the liability is founded in tort. The 3rd respondent owed a duty to instruct a driver who would exercise due care and skill. Shiells v. Blackburne and Wilson v. Brett, relied on by the respondents, did not avail them on these facts.

The Court adopted Bowen L.J.'s dictum in Birmingham and District Land Company v. London and North Western Railway Company distinguishing a right to indemnity as such, which flows from the original bargain, from a right to damages which attaches to breach of contract. Since the delivery arrangement was held not to be contractual, the appellant's Third Party Claim for indemnity failed.

The Court found the loss of four lives indicative of imprudent behaviour by both drivers; a motorist must exercise ordinary care and drive at a reasonable speed to keep the vehicle under control. The police sketch showing the point of impact in the middle of the road supported the finding that the lorry driver bore the larger share of blame. The trial court's apportionment was upheld as between the negligent drivers, though the burden is now borne by the 3rd respondent vicariously with the 2nd respondent and shared by the appellant.