[2022] KEHC 11297 (KLR)

Kenya Power & Lighting v Okeyo & another (Civil Appeal 3 of 2021) [2022] KEHC 11297 (KLR) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11297 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Civil Appeal 3 of 2021

F Gikonyo, J

June 6, 2022

Between

Kenya Power & Lighting

Appellant

and

Naftali Nyamweya Okeyo

1st Respondent

John Moturi Bikundo

2nd Respondent

(Being an appeal from the Judgement of Hon. R.M. Oanda. (P.M.) Delivered on 28th October 2019 in Kilgoris PMCC No. 8 of 2017)

Judgment

1. The memorandum of appeal dated May 14, 2020 challenges quantum of damages awarded in the judgment of the trial court delivered on the October 28, 2019. Specific orders that were made by the trial court are: -i.The defendants are 100% liable for the accident.ii.General damages Kshs 3,000,000/=.iii.Special damages Kshs 52,260/=.Total Kshs 3,052, 260/=Plus, costs of this suit and interest.

Submissions 2. The appeal was canvassed by way of written submissions.

Appellant’s Submissions 3. The appellant submitted that the learned trial magistrate erred in finding the appellant vicariously liable for the 1st respondent’s injuries when indeed the 1st respondent was not the appellant’s employee. The appellant urged this court to find that the trial magistrate proceeded on wrong principles of law and misapprehended the evidence on record thus reaching a wrong conclusion.

4. The appellant relied on the following authorities;i.Kiruga V Kiruga & Another [1988] KLR 348. ii.Kamau Vs Mungai & Another [2006] KLR 150. iii.Definition of an independent contractor in Black’s law dictionary 9th edition.iv.Definition of vicarious liability in Black’s law dictionary10th Edition by Bryan A Garner.v.Charles Worth on negligence 4th edition, sweet and maxwell on the subject of “independent contractor”.vi.Pickard V Smith [1861] 10 CB (NS) 470. vii.Lalji Bhimji Sanghani & Another v Chemilabs [1978] 3 eKLR.viii.Kenya Breweries LimitedvMeshack Momanyi Osiemo[2018] eKLR.ix.Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR.x.Articles 50 & 159(2) of the Constitution of Kenya 2010.

1st Respondent’s Submissions 5. The 1st respondent submitted that the 2nd respondent was not working for himself but for the appellant hence vicariously liable. He urged this court to find that the appellant contracted the 2nd appellant to install and / or repair its power lines and by its conduct hence creating agency and principal relationship giving rise to liability by acts of the 2nd respondent.

6. The 1st respondent relied on the following authorities;i.Civil case no 56 of 1987,Karanja vs Phoenix of EA Insurance Co Ltd.ii.Anglo African Merchants Ltd vs Bayley [1970] 1 QB311[ 1969] Lloyds ‘Rep 268 Texts Dey’nolds, FMB Daven Part BJ [1968].iii.Bow stead agency: Sweet & maxwell 13th edn art 84. iv.Civil case no 685 of 2010. Heifer Project International Vs Forest City Expat Services Ltd & Elate Ltd.v.Halsbury’s law of England 4th edition volume (2) paragraph 20. vi.Cheshire and fifoot,the law of contract, 5th edition page 386-394.

ANALYSIS AND DETERMINATION Duty of court 7. As first appellate court, I will re-evaluate the evidence and come to own conclusions, except, giving allowance of the fact that I neither saw nor heard the witnesses; matters of demeanor are best observed by the trial court Selle & Another vs Associated Motor Board Company Ltd. [1968] EA 123).

Issues 8. I have carefully considered the grounds in the appeal, the parties’ written submissions and all authorities cited. I have also read the evidence on record and the judgment of the learned trial magistrate. The issue for determination is;i.Whether the appellant was vicariously liable for the acts and /or omissions of the 2nd respondent?

9. The two relevant strands that must be pursued under this issue are; whether the 1st respondent was an employee of 2nd respondent and whether the 2nd respondent was an independent respondent.

Independent contractor Whose employee? 10. Section 2 of the Employment Act defines an employee: -“Employee means a person employed for wages and a salary and includes an apprentice and indentured learner.

11. Although the 1st respondent pleaded in his plaint that he was an electrician while in employment of the appellant and performing his daily duties under instructions of the 2nd respondent and that he was injured while servicing the power lines of the appellant; the evidence by the 1st respondent showeth;i.That the 1st respondent was at the material time, employed by John Moturi Bikondo, the 2nd respondent and not the appellant.ii.He confirmed that his dues were paid by the 2nd respondent.iii.He also confirmed all the tools of trade were given to him by the 2nd respondent.

12. DW1 stated that repair of KPLC lines is done by staff and issued to the sub-contractor. DW1 stated that all contractors are independent though he could not tell whether the 2nd respondent was sub-contracted.

13. I have noted that the 1st respondent did not produce any document issued by Kenya power & lighting company ltd to show that he was its employee.

14. I find that the 1st respondent was an employee of the 2nd respondent.

Independent Contractor 15. Was the 2nd respondent an independent contractor?

16. An independent contractor is defined in Black’s Law Dictionary 9th Edition as:“One who is entrusted to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it”.

17. From the evidence, the 2nd respondent had been contracted by the appellant to undertake installation and repairs on the power lines. And, the 2nd contractor employed the 1st respondent at the material time. On cross-examination, PW1 indicated that the 2nd respondent was an independent contractor.

18. The material before the court show that the 2nd respondent undertook the installation and repairs on the power lines without close supervision of the appellant. He was therefore an independent contractor

19. Accordingly, I find that the 2nd respondent is an independent contractor.

Liability 20. Who then is liable for the injuries suffered by the 1st respondent?

21. Charlesworth in Negligence, 4th Edition, Sweet and Maxwell on the subject of “independent contractors” declares that an employer is not liable for the negligence of an independent contractor or his servant in the execution of his contract. He writes:“Unquestioningly, no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servant commits some casual act of wrong or negligence, the employer is not answerable.”

22. It is not in dispute that the 1st respondent was injured in the course of employment with the 2nd respondent while doing electricity installation at lolgorian. The 1st respondent stated that he was given a belt by his employer- the 2nd respondent. He went up the electricity pole and he fell from there. This was because the belt he was using snapped.

23. The general rule is that an employer who has employed an independent contractor to undertake services or work on his behalf is not responsible for any tort committed by the contractor or in the course of his work. The employer is also not liable for the tortious act committed by the contractor’s employees.

24. Before I close, I must state that this case does not fall within the exceptions to the said general rule. This is not a case where KPLC contracts with an independent contractor to do an act which he is not entitled to do or to perform a duty which is thrown upon it by law. Neither is it a case where the employer has contracted an independent contractor to do an act which is unlawful or the employer is not entitled to do such as a public or private nuisance or a trespass the employer will in that case be liable if there is resulting damage. Nor is it a case where the employer had contracted independent contractor to perform a task which involves special risks of damage the employer, or the employer is under the absolute duty which attaches ownership of dangerous things (Clerk and Lindsell on Torts 18th Edition page 249 -259 andCharlesworth on Negligence 4th Edition page 78-85.

25. The 1st respondent did not adduce any evidence to show or prove that there was any abnormality with the power lines or the manner in which the poles were installed predisposed any person working on it to any hazard/ or danger.

26. The evidence on record shows that the 1st respondent was injured when the belt issued to him by the independent contractor snapped. There is not any fault associated with the power lines. There was no nexus between the belt in question and the appellant.

27. As earlier stated, John Moturi Bikundo was an independent contractor meaning that he performed his contract with the appellant independently and was therefore responsible for his own employees. The principle of vicarious liability did not therefore apply in this case.

28. For the foregoing reasons, I am satisfied that the learned trial magistrate failed to properly interrogate the pleadings and the evidence placed before him and also failed to take into account the legal principles relevant to the 1st respondent’s claims and thereby arrived at the wrong decision that the appellant was vicariously liable for the respondent’s injuries.

29. In the upshot, I find that the appeal is merited and it is hereby allowed. The part of the judgment of the trial court which holds the appellant vicariously liable for the injuries sustained by the 1st respondent is set aside. The 2nd respondent is wholly to blame for the accident for providing the 1st respondent with a belt not fit for the job. Good quality belts do not snap just like that.

30. Each party shall bear own costs of the appeal.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH TEAMS APPLICATION, THIS 6TH DAY OF JUNE 2022F. GIKONYO M.JUDGEIn the Presence of :1. Ahesa the appellant2. Mr. Kasaso- CA3. Moracha for the 1st Respondent – absent4. No representation for 2nd Respondent