Bm Security Limited v Joseph Macharia Kibira & 1 other
The bottom line
#Kenya's Court of Appeal confirmed an employer isn't automatically liable when an employee uses a work vehicle for personal gain outside his job.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer is vicariously liable for an employee's negligent act committed for the employee's own benefit and outside the scope of employment
The employer is not liable; the driver's carrying of an unauthorised passenger for a personal fee was a frolic of his own using the master's time and vehicle, wholly outside the scope of his employment.
Applying the two-limbed Minister of Police v Rabie test as adopted in Tabitha Nduhi Kinyua, the subjective limb asks whether the employee acted solely for his own purposes, and the objective limb asks whether any deviation was closely connected to the employer's business. Here the driver gave the lift hoping to enjoy 'tea' for his own benefit, with no connection to the employer's security business, so liability cannot attach.
Whether the 1st respondent's ignorance of the contractual prohibition between employer and driver defeats the employer's defence
The 1st respondent's lack of privity to or knowledge of the employer-driver agreement is irrelevant; the decisive question is whether there were factors, by word or conduct, indicating that the driver had authority to give lifts to strangers. There were none.
The court held the fact that instructions were written or oral does not affect the legal position. The vehicle was branded, the 1st respondent admitted knowing it was not a public service vehicle, and therefore had no reason to believe the driver had authority to carry passengers. Any claim of ostensible authority would have had to be proved by the 1st respondent.
The scope of the second appellate court's jurisdiction
As a second appellate court, the Court of Appeal's jurisdiction is limited to issues of law only.
Citing Kenya Breweries Ltd v Godfrey Odoyo, the court confined itself to the legal question of vicarious liability, not a re-evaluation of facts. The appeal turned on whether, as a matter of law, the employer was vicariously liable for the driver's unauthorised carriage of a passenger.
Legal principles established
#- An employer is not vicariously liable where an employee, without the employer's knowledge or permission, uses the employer's time and vehicle solely for his own purposes and personal gain; such conduct falls outside the scope of employment.
- It is an error of law to hold that a master is always vicariously liable for the negligence of an employee regardless of whether the employee acted contrary to lawful instructions or for his own benefit.
- The burden of proving that an employee had ostensible authority to ferry passengers lies on the party asserting it.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the learned Judge of the High Court is set aside
- 3.The judgment of the trial magistrate reinstated
- 4.The 1st respondent shall pay the costs of this appeal to the appellant
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Second appellate jurisdiction under the Court of Appeal's appellate powers; the court stated 'As a second appellate court, our jurisdiction is limited to considering issues of law only' (See Kenya Breweries Ltd. v Godfrey Odoyo [2010] eKLR)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bm Security Limited v Joseph Macharia Kibira & 1 other", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/166/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.