3.1 Introduction
The word tort has been derived from the Latin tortus which means crooked or twisted. In French, tort means a wrong. In law, tort denotes certain civil wrongs. It means, a tort is a civil wrong. Sir F. Pollock has defined tort as “An act which causes harm to a determinate person, whether intentionally or not, not being a breach of duty arising out of personal relation or contract, and which is either contrary to law, or an omission of a specific legal duty, or a violation of an absolute right”.

Every tort results from the breach of a certain duty which is primarily fixed by law unlike other civil wrongs such as breach of contract, where the duty in question is fixed by the parties themselves. Thus, the duty not to defame, injure or damage the property of any person is one fixed by the law and its breach may constitute a tort, whereas the duty to supply goods under a contract of sale is a duty created by the parties themselves in their contract. In tort, the duty is imposed on persons generally, i.e. on every individual, but in other cases the duty is imposed only on the parties concerned, e.g. the duties created by a contract are imposed only on the parties to the contract and on no one else. Similarly, the duty in tort is owed to every other person, unlike in contract cases where one contracting party owes his contractual obligation to the other contracting party and to no one else.

A tort, as such, differs from other civil wrongs in a number of respects. It is a common law wrong which is usually remedied by an award of “Unliquidated Damage”. Unliquidated damages are those whose quantum or a assessment is left for the determination to a court at its disretion. These are distinct from liquidated damages which are fixed by the plaintiff. Certain other remedies are also available which will considered when the various torts are separately dealt with A person who commits a tort is called a tortfeasor. Where two or more persons commit a tort, they are known as joint tortfeasors. They may be sued jointly, or any one of them may be sued for the whole of the damage. In case of the joint tortfeasors, there is a right of contribution, under which the court may apportion the damages between them in such a way as is just, having regard to their respective degrees of blame.

3.2 Function of the Law of Torts
The primary function of the law of torts is to compensate persons injured by the civil wrongs of others, by compelling the tortfeasor to pay for the damage occasioned by his tort. Besides this, there are certain other functions and these include the following.

1. To Determine Rights Between Parties to a Dispute. A party to a dispute may bring an action for a declaration of his rights; and once the court makes a declaration, the rights of the parties are determined.
2. To Prevent a Continuance or Repetition of Harm. When the injury complained of is of a continuous nature or likely to be repeated by the tortfeasor, the injured party may be granted an injunction to prevent its continuance or repetition, e.g. in cases or trespass to
3. To Protect Certain Rights Recognized by Law. There are certain rights which every individual is entitled to land which are recognized by law. These rights are protected by the law of torts e.g. a person’s reputation or right to good name is protected by the tort for negligence with imposes a duty of care on every other person.
4. To Restore Property to its Rightful Owner. Where property is wrongly taken away from its rightful owner or otherwise dealt with contrary to his rights, he may seek a restitution of the property or its value since the wrongful act amounts to the tort of trespass to goods (or land).

3.3 Nature of tortuous liability
A tort is a civil wrong which is usually remedied by an ward of unliquidated damages. Prof. P.H. Winfield asserts that “tortuous liability arises from the breach of a duty primarily fixed by law; such duty is towards person generally, and its breach is redressible by an action for unliquidated damages”. Every person is under a duty to compensate for his wrongful acts which have resulted in injury to
another person. It is this duty to compensate that determines his liability in tort. Generally, the plaintiff must prove that he has suffered harm and that there has in consequence been a violation of his legal right. Some civil wrongs are actionable even if no damage is suffered e.g. trespass to land. Whether the plaintiff has any remedy in some cases of tort depends on the following two principles of general application:-

1. Damnum Sine Injuria:
Literally translated, this phrase means “Harm without legal injury.” It refers to a circumstance where a person has suffered actual harm without any violation of his legal right. A person aggrieved in this way has no legal remedy. Mogul Steamship Co. v. McGrefor, Gow & Co. (1982) Certain ship-owners reduced their freight charges for the sole purpose of driving their rival out of business. The plaintiff, who had thus been driven out of business, brought an action against the ship-owners. Held: a trader ruined by the legitimate competition of his rivals could have no redress in tort.

2. Injuria Sine Dumno:
This refers to a situation where a person suffers a violation of his right without any actual loss or damage sustained by him. This is especially so in the case of torts which are actionable ‘per’ se’ (i.e. without proof of any damage) e.g. trespass to land, libel e.t.c.
The Court can award the damages to the plaintiff in such case. Ashby v. White, (1703) In this case the defendant, a returning officer, wrongfully refused to register a properly tendered vote of the plaintiff who was a legally qualified voter. In spite of this, the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote. It as held that the defendant was liable because he deprived the plaintiff of his legal right of registering his vote.

3.4 Determination of tortuous liability
Tortuous liability can be also determined on the basis of the following principle

The Fault principle
Most torts are based on the fault principle. Under this principle, it is necessary to establish some fault on the part of the wrongdoer before he can be made liable in tort. A person is said to be at fault where he fails to live up to some ideal standard of conduct set by law. Three elements are relevant in the determination of fault, and any one of them may be relied upon:-

  • Intention
    Where a person does a wrongful act desiring that its consequences should follow, he is said to have intended it; and to that extent there is some amount of fault on his part.
  • Recklessness:
    An act is said to be done recklessly where it is done without caring whatever its consequences might be. Recklessness, as such, constitutes fault on the part of the wrongdoer.
  • Negligence:
    A person is also at fault where he does a wrongful act negligently i.e. there the circumstances are such that he ought to have for seen the consequences of his act and a voided it altogether.

3.5 Distinction between Tort, Crime and Breach of Contract

We may distinguish between a tort, a crime and a breach of contract as under:

  • Tort and Crime:
    A crime is la breach of public rights whereas a tort is a civil wrong. The main object of criminal proceeding is the punishment to the criminal persons but the object of proceedings in tort is not punishment. Its main aim is the compensation to the plaintiff for the loss or injury caused by the defendant i.e. damages. Some cases may be actionable under criminal law and law of torts e.g. if ‘A’ assaults ‘B’, there is both a crime and a tort.
  • Tort and Breach of Contract:
    In contract, the duties are fixed by the parties to a contract. But in tort, the duties are fixed by law (common law or statute). In some cases, a breach of contract and tort may take place simultaneously. We assume ‘X’ employs a private surgeon to operate his wife. If ‘Y’ fails to perform his duty properly then ‘X’ has a cause of action against ‘Y’ for (i) breach of the contractual duty of care, and (ii) the tort of negligence.

3.6 Malice
Malice means ill-will or desire to cause damage to someone. In legal sense, malice means a wrongful act which is done purposely without having a lawful act with is done purposely without having a lawful excuse. In tort, the intention or motive for an action is generally irrelevant. The general rule is that a bad intention does not make a lawful action as unlawful and similarly an
innocent or food intention is not a defence to a tort.

Wilkinson v. Downton (1897) A, as a practical joke, told Mrs. B that her husband had met with an accident. Mrs. B suffered a nervous shock and was ill as a result. Mrs. B brought an action against A for false and malicious representation. The fact that A passed the information as a joke was irrelevant, and Mrs. B was entitled to damages. Malice in itself is not a tort, but it can be an important element in certain torts. Main examples of such torts are: Malicious persecution.

3.7 General Defences
A person sued in tort has at his disposal certain defences, some of which are restricted to particular torts (e.g. contributory negligence is a defence only to the tort of negligence), while other are of a general nature. Specific defences are dealt with together with their respective torts. This section is restricted to general defences.

The following general defences are available to a defendant in every action for tort where they are appropriate:-

  • Volenti non Fit Injuria
  • Inevitable Accident
  • Act of God
  • Necessity
  • Self-defence
  • Mistake.
  • Statutory Authority
    These are explained below

3.7.1 Volenti Non Fit Injuria
Volenti non fit injuria is also known as the voluntary assumption of risk. Where a defendant pleads this defence, he is in effect saying that the plaintiff consented to the act with is now being complained of. The plaintiffs consent may be either express or implied from his conduct. Before ‘volenti’ can be upheld as a defence, it must be proved that the plaintiff was at the material time aware of the nature and extent of the risk involved for a person cannot consent to what is not within his knowledge. By his consent the plaintiff voluntarily assumes the risk of whatever consequences might follow from the act he has consented to, consequently, where ‘volenti’ is
successfully pleaded its effect is to deny the plaintiff any remedy at all against the defendant: Volenti non fir injuria means no injury can be done to a willing person. For example, a football player cannot complain for being injured while playing the game. Khimji v. Tanga Mombasa Transport Co. Ltd. (1962).

The plaintiffs were the personal representatives of a deceased who met his death while traveling as a passenger in the defendant’s bus. The bus reached a place where the road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passenger, including the deceased. The bus got drowned together with all those aboard it. The deceased’s dead body was found the following day. Held: The plaintiffs’ action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.

Apart from instances like those of the above case, the defence of ‘volenti’ has been pleaded in a number of situations, including the followings:
1) A passenger injured by the act of a driver whom he knew to be under the influence of drink at the material time.
2) A spectator at a game, match or competition injured by the act of the players of participants.
(3) A patient injured by the act of his surgeon, where the patient has consented to the operation.

The viability of the defence depends on the circumstances of each case; otherwise the consenting party does not, by his consent, necessarily give an open cheque to the other party to act negligently, high-handedly or in any manner he pleases.

Haynes v. Harwood, (1935)
The defendant’s servant left a van and horses unattended in a crowded street. A boy threw a stone at the horses and they bolted. This exposed a woman and some children nearby to some grave danger. The plaintiff, a police constable, managed to stop both horses; but he did so at great personal risk and in fact sustained severe injuries. In an action brought against him, the defendant pleaded volenti. Held: (1) The doctrine of country assumption of risk did not apply because the plaintiff, in rescuing the persons in imminent danger, had acted under an emergency caused by the defendant’s wrongful act. (2) It was immaterial that the persons to be saved were
strangers, and the defendants were liable.

3.7.2 Inevitable Accident
An inevitable accident is one which cannot be prevented by the exercise of ordinary care, caution and skill. It therefore occurs only where there is no negligence on the part of the person whose act is complained against. Since the law of torts is generally based on the fault principle, and since an inevitable accident does not impose fault on the part of the alleged wrongdoer, it follows that an injury which has resulted from an inevitable accident is not actionable in tort.

Stanley v. Powell, (1891)
The plaintiff was employed to carry cartridges for a shooting party. A member of the party fired at a pheasant but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued. Held: the defendant was not liable as the plaintiff’s injury resulted from an inevitable accident.

3.7.3 Act of God
An act of God (or vis major) is also an inevitable accident caused by natural forces unconnected with human beings e.g. storm. In this case also, any resultant injury is not attributable to anyone’s thunder etc. in this case also, any resultant injury is not attributable to anyone’s fault and as, therefore, not actionable in tort.

Nichols v. Marsland, (1876)
The defendant had a number of artificial lakes on his land. An unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff’s bridges were swept by act of God and the defendant was not liable.

3.7.4 Necessity:
A person may sometimes find himself in a position whereby he is forced to interfere with rights of another person so as to prevent harm to himself or his property. For instance, if he is about to be shot he may feel constrained to use the person next to him as a shield against the gunman; or being hungry he may steal food in order to survive; in the process taking the latter with him into the pit. In all these cases he may seek to justify his action as a matter of necessity. It is based on the maxim “salius populi supreme lex” i.e. the welfare of the people is the supreme law. All the cases decided on the defence of necessity point to the fact that this defence is difficult to maintain and is very rarely allowed by court. The general rule is that no person should unduly interfere with person of property of another. It is only in exceptional circumstances of an urgent situation of imminent danger that this defence may be upheld:

Cope v. Sharpe (1912)
The defendant committed certain acts of trespass on the plaintiff’s land in order to prevent fire from spreading to his master’s land. The fire never in fact caused the damage and would not have done so even if the defendant had not taken the precautions he took. But the danger of the fire spreading to the master’s land was real and imminent. Held: The defendant was not liable as the risk to his master’s property was real and imminent and a reasonable person in his position would have done what the defendant did. In view of the difficulty posed by the above defence, it is not advisable for a defendant to rely solely on it, especially where there are other defences. It is safer to plead it as an alternative to another defence.

3.7.5 Self Defence
It is sometimes said that a person who is attacked does not owe his attacker a duty to escape. Everyone whose person is threatened is entitled to defend himself; and he may do so by using force. Force, however, may only be used where necessary, otherwise the person claiming for defend himself might fond himself liable to his alleged attacker. Thus, where a person is assaulted i.e. threatened with immediate harm, but no harm is actually inflicted on him, he should not himself use force in an effort to defend himself. Where force has actually been applied (i.e. where there has been a battery the person attacked has a right to defend himself in the same way, i.e. by applying force. But the force used in self-defence must be reasonable and proportionate to that used in attacking him; otherwise if it is unreasonable or excessive in the circumstances he will himself be liable to his attacker. Thus a person attacked with a fist, pocket knife or small stick, or he may even use lesser force. But if in these circumstances he responds with a panga or spear clearly the force used by him in self-defence will be unreasonable and disproportionate and he will be liable to his attacker.

Cresswell v. Sirl, (1948)
A dog owned by plaintiff, C, attacked during the night some ewes lambs owned by S. The dog had just stopped worrying the sheep and started towards S, who shot it when it was 40 yards away. C sued for trespass to goods (dog). Held: S was justified in shooting the dog if (i) it was actually attacking the sheep; or (ii) if left the dog would renew the attack on them, and shooting was the only practicable and reasonable means of preventing revival. The onus on justifying the trespass lay on the defendant. An occupier of property may also defend his property where his interest therein is wrongfully interfered with. Once again, reasonable force must be used in the defence of property. A trespasser, for instance, may be lawfully ejected using reasonable force. The use of force which is not called for in the circumstances entails legal liability on the part of the person purporting to defend his property.

3.7.6 Mistake
The general rule is that a mistake is no defence in tort, whether it is a mistake of law or of fact. Mistake of fact may be relevant as a defence to any tort is some exceptional cases. This could arise in cases of malicious prosecution, false imprisonment and deceit. For example, where a police officer arrests a person about to commit a crime but the person arrested is innocent then the police officer is not liable. In this case, the mistake is reasonable ground for the defence in the tort. Mistake cannot be a defence in actions for conversion or defamation.

3.7.7 Statutory Authority
Where a statute authorizes a particular act, a person who does it is not liable in tort. The authorisation of an act is also an authorisation of its natural consequences. But the person acting must do so in good faith and within the scope of the powers conferred by the statute; or else he will not be protected. Where the person acting exceeds the powers conferred by the statute, the compensation payable by him to the injured party cannot be more than what is provided by the statute itself. The statute may stipulate a definite sum, or it may give powers to certain officials to assess the loss suffered by the injured party. Thus, where a person has acted in pursuance of the provisions of a statute, he may plead statutory authority in his defence; and where the statute does not protect him from liability (e.g. where he has exceeded his powers) and the injured party claims by way of competition a sum in excess of that stipulated by the statute, he -ay plga the statute i. mitigation. This is especially so in what are known as statutory torts.

Voughan v. Taff Vale Railway Co. (1860)
A railway bompany was authorized by statute to run a railway which traversed the plaintiff’s land. Sparks from the engine set fire to the plaintiff&s woods. Held: that the railway company was not liable. It had taken all knowf care to prevent emission of sparks. The rulning of locomotives was qtatutorily authorized.

3.8 Capacity to sue or be sued in Tort:
The general rule is that any person may sue or be sued in tort. All persons are subject to the same laws. However, some special rules apply in certain circumstances which either restrict, forbid or qualify the right to sue or be sued. It means certain persons cannot sue, while some other persons cannot be sued. Capacity means the capacity of parties or persons to sue or to be sued in law of torts. The
capacity of various persons in the law of torts is explained as under:

3.8.1The Government
The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort as if it were a private person mf full age and capacity. Section 4 (1) of this Act provides that the Government is liable.

  • in respect of torts committed by its servants or agents;
  •  in respect of any breach of those dutie3 which a person owes to his servants or agents at common law by reason of being their employer; and
  • in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.
    The Government is also liable for statuary torts i.e. torts arising from breach of a duty imposed by statute. However, the Government is not liable for any thing done by any person when discharging any responsibilities of a judicial process (Sec. 4 (5). The Government is not also liable for trots committed by public officers who are appointed and paid by local authorities, or members of public corporations like Kenya Railways, Maize and Produce Board of Kenya e.t.c.

3.8.2 Infants and Minors
At a general rule minority is no defense in tort. Infants can sue and `e sued in the same way as any other person. However, the age of an infant may be relevant in some torts where intentions, malice, or negligence of the wrongdoer are the main cause of the tort. In the case of negligence, the infant may not have reached the stage of mental development where it could be said that he should be found legally responsible for his negligent acts. A child may be also guilty of negligence if old enough to take precautions for his own safety.

Burnard v. Haggis, (1863)
A minor hired a horse for riding and was told by the owner not to jump over it. But he jumped the horse and injured it. Held: The minor was liable for his tort which was of independent of the contract. Generally, a parent or guardian is not liable for the torts of his children unless he authorizes the tort. But a parent or guardian is liable for torts committed by children in negligence. Bebee v. Sales, (1916) A parent permitted his son aged 15 to remain in possession of a shotgun, with which the son had already caused harm and in respect of which complaints had been made. Held: the father was liable for injury to another boy’s eye.

3.8.3 Husband and Wife
The position of husbands and wives in tort is covered by two English statutes. These are: the Married Women’s Property Act 1882 and the Law Reform (Married Women and Tortfeasors) Act, 1835. The former Act is a statute of general application is Kenya. The latter statute applies in Kenya to the extent of paragraphs (b) and (c) of question 1. A married woman is liable in tort and may sue or be sued in tort in the same way as though she were a female sole (i.e. a single of unmarried woman). A wife can sue her husband in
tort for the protection of her own property.

3.8.4 The President:
The Constitution of Kenya (Kenya 14) provides that the President of Kenya is not “liable tk any proceedings whatsoever in any court.” It means that no civil or criminal proceedings can be instituted against the President while he is in office.

3.8.5 Heads of State and Diplomats:
The Heads of foreign states, diplomats of foreign missions and certain other persons connected to them are immune from the jurisdiction of the local courts. Their immunity is provided by the Vienna Convention of Diplomatic Relations, signed in 1961, the relevant articles of which are given the force of law in Kenya by “The Privileges and Immunities Act (cap. 179)”. The accredited diplomats and their staff families enjoy immunity from the criminal and (subject to specified exceptions) from the civil and administrative jurisdiction of the local courts. The immunity does not extend to Kenyans who are employed by diplomatic
missions. Representatives of the United Nations Organization and its specialized agencies can also claim diplomatic immunity. Although the diplomats and their staff cannot be sued under the law of tort but it is always open to the Ministry of Foreign Affairs to declare a diplomat ‘persona non grata’, thereby requiring his removal from Kenya.

3.8.6 Corporations
The corporations can sue and be sued in their own names. They are liable to actions in tort. A corporation is also liable for torts committed by its servants and agents. But if a servant of a corporation commits a tort which is ‘ultra vires’ (beyond powers) then the corporation is not liable. Similarly, a corporation is not liable for some torts of personal nature e.g. personal defamation, battery e.t.c.

3.8.7 Trade Unions:
The trade unions have capacity to sue in tort but actins against them in tort are limited. Section 23 of the Trade Unions Act (Cap. 233) provides that no action shall be brought against a trade union for torts committed by its members or officials in respect of any act
done in contemplation or in furtherance of a trade dispute. For example, if a trade union calls a strike, it cannot be sued by an employer for the tort of inducing a breach of contract.

3.8.8 Persons of Unsound Mind:
These are generally liable in tort unless intent is a necessary element and their condition is such that they could not have formed such intent.

Morriss v. Marsden, (1952)
Defendant took room at a Brighton hotel. While there he attacked the manager of the hotel (plaintiff). It was established that defendant was suffering from disease of the mind at the time of the attack; that he knew the nature and quality of his act, but he did not know that what he was doing was wrong. Held: That as defendant knew the nature and quality of his act he was liable in tort for the assault and battery. It was immaterial that he did not know that what he was doing was wrong.

3.8.9 Aliens or Non-Citizens:
An alien is under no disability and can sue and be sued. However an enemy alien cannot sue, but if sue can defend himself.

3.8.10 judicial officers:
Judicial officers are protected from civil liability for any act done or ordered by them in the discharge of their judicial functions. Thus, where a judge or magistrate utters words which tend to reflect on a person’s reputation, or orders a party’s property to be attached in
satisfaction of a judgment-debt, no action can respectively be brought against him for trespass. Besides judicial officers, officers of the court are also protected against civil liability for acts done in pursuance of a judicial order or warrant. This means that a court broker cannot be sued for attaching property under a warrant dully issued by court, as long as he acts within the powers conferred on him by the warrant. The protection to judicial officers and officer of court is afforded by the Judicature Act (cap.8) Section 6.

3.9 Specific Torts
The work tort refers to civil wrong committed by different Persons. Some specific torts are:

  • trespass
  • Nuisance
  • Negligence
  • Defamation

The main characteristics of these torts together with damages and their defences are explained as under:

3.9.1 Trespass
There are three types of trespass. These are:-
1. Trespass to land
2. Trespass to the person; and
3. Trespass to Goods

Trespass is actionable per se i.e. .without proof of any damages once it is established that a trespass has been commit, the plaintiff is entitled to legal redness, whether or not he has suffered damage; the actual damage suffered (if any ) merely gauges the extent of the redness or compensation )which the plaintiff is entitled to. Trespass, as such, is a of the classic illustration of the principal ‘injupia sine damno’. It is this fact that distinguish it from negligence which is actaonable only upon proof of damage

Trespass to land

Trespass to land is committed where the plaintiff’s possession of land is wrongfully interfered with. it is the fact of possession rather than ownership that is important ;such as plaintiff may be any one in po3sersion of the land, whether he is the owner or a tenant . Wrongful interference with possession in relation to the plaintiff’s land may take the form of wrongfully entering upon it, or wrongfully remaining on it, Or wrongfully placing or projecting any material object on it

Trespass by wrongful Entry
This is committed where there is physical contact with the plaintiff’s land, however slight. It includes acts like encroaching on the land or walking through it without authority, sitting on the plaintiff’s fence or putting a hand through his window etc *Also n abuse of a right of entry may constitute a trespass, e.g. a person authorized to enter premises for the purpose of repairing them becomes a trespasser when he picks and eats fruits on the premises without authority .If a person misuses his authority, it is also known as trespass

Trespass by remaining on land
This type of trespass is committed by a person who, having been originally authorized To enter upon land, is subsequently asked to leave: such a person becomes a trespasser When he fails to leave the land within a reasonable time.

Trespass by placing things on land
Trespass by placing things on land is committed by kin who places any material thing on the plaintiff’s land, or who allows such material thing or noxious substance, to come in to contact with (or cross the boundary of )the plaintiff’ land.

This type of trespass is similar to nuisance, but the two are different in the following respect:
1. In trespass the injury is direct since it affects the plaintiff’s Possession; but in nuisance the Injury is indirect because it is the
Plaintiff’s comfort and convenience in the use and enjoyment of his land that is affected ,rather than its possession.
2. Another distinc4ion arising from the explanation given above is that while trespass relates the possession of land, nuisance relates to the user or enjoyment of land :in trespass the plaintiff’s possession is at stake, while in nuisance it is the use and enjoyment of the land that is at stake.
3. Trespass is actionable per se ,whereas nuisance, just like negligence is only Actionable upon proof of damage. the following cases is instructive.

Kelsen v imperial tobacco co. ltd, (1957
He defendant erected$ an advertising signpost which protruded by 8 inches in to air space above the plaintiff’s land. Held: the defendant’s act constituted a trespass but not a nuisance since the plaintiff had suffered no inconvenience continuing trespass:
As long as the act constituting a trespass remains (without the trespasser doing anything to avoid it, there .is said to be continuing trespass. This arises Where, for in3tant, the trespasser chooses to remain on the plaintiff’s ,and or Fails tm remove there from any matter that is the cause of trespass. Where there is continuing trespass, the plaintiff may bring a number of actions against
the defendant. This is Because as long as the trespass continues, the Plaintiff continues to suffer and there is always afresh cause of action.

Trespass by Relation
The plaintiff’s possession of land relates Back to The time when he first acquired aright to posses the land and he is deemed to have been in possession of it from that time. Possessor of land may therefore sue any Person who committed an act of trespass on the land even before he himself took actual possession of it .since the plaintiff’s right of action is based on a title which legally relates back to the earlier period, the trespass in question is known as trespass by relation. it is all based on doctrine of relation back . Example: A own land which he sells off to B. A year passes before B has taken actual possession of the land; but in the meantime C has committed
an act of trespass on the land B; may sue C for trespass not withstanding that he had not yet taken possession of the land when the act of trespass was committed ;B’s title relate back to the time when he first became entitled to take possession i.e. the time when he bought the land from A.

Is trespass a crime?
Trespass to land is normally a civil wrong, but it may give rise to criminal proceeding some cases. The trespass Act (cap.294) states that a trespasser can be prosecuted criminally if he enters on somebody’s land with an intent. To steal goods or commit any other offence. Otherwise, a trespass to land is a tort and it is actionable per se, i.e. without proof of special damage .

The main defences to an action for trespass to land are as under:-

  • Prescription
    Land acquired by possession is also said to been acquired by prescription .The new owner may plead title by prescription as a defence to an action brought by previous owner to recover the land. A defendant may also plead prescription, as by proving aright of common grazing or right of way over the Plaintiff’s land.
  • Act of Necessity: The necessity may be pleaded as a defence to an action of trespass to land e.g. entry to put out fire for public safety
  • Statutory Authority Where the authority is conferred by law, whether by statute or by court order, this is also an available defence e.g. the authority of a court broker
  • Entry by licence an entry authorized or licensed by the plaintiff is not actionable in trespass unless the authority or license given is abused.

The remedies in respect of trespass to land include:

  1. Damages
    The plaintiff may recover monetary compensation from the defendant, The extent of which depends on the effect of the dependant’s act on the value of the land in question.
  2. Ejection
    We saw earlier on that a person is entitled to use reasonable force to defend his property. Thus, where a person wrongfully enters or remains on another’s land, he may be ejected using reasonable force may entail liability for assaults An ejectment may also be based on a court order (an eviction order)
  3. Action for recovery of land
    The plaintiff may bring an action to recover his land from the defendant Where there has been a wrongful dispossession, it is common for such action to be coupled with the above two remedies.
  4. Injunction
    In addition to the above remedies, an injunction may be obtained to ward off a threatened trespass or to prevent the continuance of an existing one
  5. Distress Damage Feasant In the case of trespass by placing things on land (or in the case of chattle trespass) the plaintiff has a right To detain the defendant‘s chattel or animal which is the cause of the trespass in question.

2. Trespass to the Person
Like trespass to land, trespass to the person is three-fold. It may consist of assault, battery or false imprisonment.

An assault is committed by a person when he threatens to use force against the person of another, thus putting the other person in fear of immediate danger e.g shaking a fist or pointing a gun menacingly at the person of another. It important that the person Threatened must be put in fear of Immediate danger otherwise there will be no assault. An assault is a tort as well as a crime

While assault is constituted by the mere use of a threat calculated to induce fear, battery is defined as the tactual application of force against the person of another without lawful justification; e.g. punching the plaintiff’s lose, smacking his bottoms or slapping him On the chick, etc. An act can only amount to a battery if it is intentional and voluntary. Thus, a person who suffers injury in the process of scrambling for a tax will find it difficult to maintain an action for battery against anyone

False Imprisonment:
There is said to be false imprisonment where a person is totally deprived of his freedom without lawful justification. Whether physically or otherwise; e.g. locking up a person in a room whose only exit is the locked door, or surrounding him such that it is practically impossible for him to leave where he is. It is interesting to note that a false imprisonment may be committed even without the plaintiff’s knowledge, e.g by locking him up in his bedroom while he is asleep and then reopening the door before he has awoken. On being informed of these facts the plaintiff lay sue the person who did the locking and reopening of his bedroom. The length of time during which a false imprisonment last is immaterial but is a relevant factor in gauging the extent of the defendant’s liability in damages


A parental Authority:
A parent has a right to reasonably chastise or discipline his Children. This means that where a parent beats his child or locks Him up in room for sometime by way of reasonable chastisement, he cannot be sued for battery or false imprisonment .Similarly, if a parent gets a knife and threatens that he will cut off his child’s mouth unless the child stops abusing grown-ups, no action can be brought against him for assault When a child is at school all his parent’s right of ordinary control over him Are delegated to the school authority (or teachers) and are exercised by the Latter in ‘loco parents ‘.Reasonable chastisement by the school authority. e.g Reasonable punishment by teachers ,is not actionable in tort Note: According to R.v (1891) a husband has no right to chastise

Judicial authority:
An act done under order of court is Not actionable as trespass. We show at the beginning of this chapter that acts done in a judicial Capacity are not actionable in tort. It follows that where a judge orders a corporal punishment of a number of strokes, no action for battery can be brought against him or a person administering the strokes .Also, statutory authority may be pleaded as a defence



An award of damages iii General Defences the defendant may also rely on the general defences already considered. Self-defence is a particularly viable defence to assault and battery. Volenti (or the plaintiffs consent),may also be pleaded Thus, a patient who has consented to a medical operation cannot round and sue the surgeon for trespass (battery ).Similarly ,a spectator who suffers injury in the cause of a game whose rules are being followed cannot sue for trespass is the most obvious and usual remedy. The amount of damages awarded depends on the circumstance of each case, having regard (or in the case The amount of damages awarded depends on the circumstances of each case, having regard to matters like the injury suffered, the period of false imprisonment e.t.c.

Habeas Corpus:
The Writ of Habeas Corpus is a remedy to false imprisonment. The writ directs the person in show custody the applicant is detained to produce him before the High Court; the Court may order his release if it appears that there are not sufficient grounds for detaining him.

Trespass to Goods and Conversion

1. Trespass to Goods.
A trespass to goods in committed by a person who directly and intentionally interferes with goods in the possession of another without lawful justification. The plaintiff may be a person either in possession or entitled to immediate possession of the goods. The wrongful interference may be constituted by removing the goods from one place to another (e.g. taking them away from the plaintiff’s possession), using the goods (e.g. wearing the plaintiff’s shirt) or destroying or damaging the goods. There are three points to note about this tort. Firstly, like in any other trespass case, the act complained of (the interference in this case) must be direct, unlike in nuisance where the act of interference, of the injury, is indirect. Secondarily, it is possession rather than ownership that determines the plaintiff’s right of action; it is a possessor’s (as opposed to an owners) rights that are protected. And thirdly, the defendant’s act must be deliberate or intentional; wrong is not actionable.

Note: A finder of lost property is not liable for trespass where the owner of the property is not known to him and cannot be easily ascertained.

2. Conversion:
Like trespass to goods, conversion is based on possession and is actionable only if the defendant’s act was intentional but not where the defendant was merely negligent. Conversion is constituted by a dealing with goods in a manner that is inconsistent with the rights of the person in possession of the goods or entitled to their immediate possession, e.g. where A intentionally sells B’s goods to C without any authority from B, or where A intentionally delivers B’s goods to some other person without justification at all. Every person is presumed to intend the natural and probable consequences of his intentional act s, and it follows from this that where a person used the property of another in such a way as to risk its confiscation he is liable for its conversion.

Moorgate Mercantile Co. Finch, (1962) A borrowed a car from B. He used the car to smuggle contraband watches, and in the process he was arrested and the car confiscated. Held: A was liable for conversion of the car because he had intentionally acted in a manner that was most likely to lead to its confiscation.

3.9.2 Nuisance
This tort is committed whenever a person is wrongfully disturbed in the use and enjoyment of his land. Generally, it arises from the duties owed by neighbouring occupiers of land: no one should use in property in a way which is likely to affect his neighbour’s use of his own land. Thus, if A and B are neighbours, and A owns plot X while B owns plot Y, A may use plot X in any way he chooses but he must not in doing so affect B’s of plot Y, or else he will be liable in nuisance. Although the tort of nuisance is usually committed only where the plaintiff and defendant are owners or occupiers of land, in certain circumstances the tort may be committed in places like a highway or even a river. There are two types of nuisance: private nuisance and public nuisance.

Private Nuisance
A private nuisance is committed where a person’s private rights in his land are wrongfully disturbed, whether physically or by allowing noxious things to escape out of his land. Thus, it is a nuisance to obstruct an easement or private rights of way; or to allow a weak structure to hang precariously above the plaintiff’s land, thereby creating a potential source of danger to the plaintiff; or to allow smoke, noise, gas, fumes e.t.c. to escape onto the plaintiff’s land thereby inconveniencing him e.t.c.

Hollywood Silver Foxes v. Emmett, (1936)
The plaintiff was a breeder of silver foxes, which were very sensitive to any disturbance during breeding seasons. The defendant was developing the neighbouring land as a housing estate and thought that the plaintiff’s business might discourage his customers. He instructed his son to fire a gun near the fox cages. The son did so and after four days the plaintiff sued. Held: The act of the defendant through his son amounted to a nuisance.

Public Nuisance:
Public nuisance is also known as common nuisance. It affects the comfort and convenience of a class of persons but not necessarily every member of the public. Thus the obstruction of a highway is a public nuisance, and also a music festival accompanied by large scale noise. It is also a public nuisance to do any act which is a source of danger to the public e.g. releasing a large quantity of petrol onto the highway. In all these cases, it is not the private rights of an individual of the community around or the public at large.
From what is stated above, it is clear that it would not be reasonable to allow an individual to bring an action to stop the nuisance. Indeed, a public nuisance is generally a criminal offence and only the Attorney General may bring an action against the wrongdoer. However, in exceptional the person creating such an act of nuisance, if he can prove that he has suffered some special damage over and above that suffered by the general public.

Soltan v. De Held, (18510
The plaintiff resided next to a Roman Catholic Chapel. the defendant, a priest, took it upon himself to ring the chapel bell throughout the day and night. The plaintiff brought an action to stop it. Held: The ringing of the bell was a public nuisance but since the plaintiff’s house was next to the chapel he suffered more than the rest of the community and was therefore entitled to
bring an action to stop it.

Continuing Wrong:
Generally, nuisance is actionable only when it is a continuing wrong. A disturbance or inconvenience on an isolated occasion will not ordinarily be treated as a nuisance:

Bolton v. stone, (1951).
The plaintiff, while standing on the highway just outside her home, was injured by a cricket ball struck from the defendant’s ground which adjoined the highway. The ground had been used for cricket for over 80 years and it was very rare for balls to be hit over the fence, which was 10 feet high above the highway and 17 above the pitch. The ball had traveled over 100 yards before hitting the plaintiff. Held: An isolated act of hitting the cricket ball onto the highway in circumstances like those of this case could not amount to a nuisance. It is only in very exceptional circumstances that an isolated act may entail liability in nuisance. an example of this is afforded by Rylands V. Fletcher where, as we saw above, water escaped only on one occasion causing damage to the plaintiff’s mine.

The Plaintiff in Nuisance
Since private nuisance generally covers only damage to property to its enjoyment, the plaintiff in an action brought to remedy a nuisance must show that he has title to, or at least some interest in the property which is alleged to have been damaged or whose enjoyment is alleged to have been affected by the nuisance, Otherwise, the action will not succeed.

Malone V. Laskey, (1907)
A bracket supporting a water tank in a house feel down by reason of vibrations caused by the defendant’s engine in adjoining premises, and the plaintiff was injured. The plaintiff had no interest in the premises; she merely resided with her husband, who was manager of the company that had leased the premises. Held: The working of the engine was a nuisance, but the plaintiff could not recover anything as she had no interest in the premises.

The law of nuisance protects only ordinary or normal persons. A plaintiff who is abnormally sensitive, e.g. because of old age or heart as no special protection and cannot recover in nuisance for which a normal person would not have suffered. Similarly, a person who has put his premises to a use or trade which is delicate or sensitive cannot recover in nuisance where it is proved that the suffered would not have arisen if the premises had been put in ordinary use or trade:

Robinson sources and grounds whereof are stated herein.. Kilvert, (1988). The plaintiff carried on an exceptionally delicate trade in which he used an equally delicate stock of paper. This stock of paper was damaged by heat from the defendant’s premises below. The
heat was required for the defendant’s business of paper or manufacture. Held: The plaintiff could not recover in nuisance as the damage would not have occurred if he were carrying on an ordinary trade: and in any case the defendant’s use of his property was reasonable.

The Defendant in Nuisance:
The person liable in nuisance is primarily the occupier of the premises which are the source of the nuisance, including a tenant; liability does not necessarily fall on the owner of the premises, although he too may be successfully sued:

Mint V. Good (1951)
A boy of 10 years was walking along a public foot path when collapsed on him and injured him. The defendant, the owner of the premises from which the wall collapsed, had let the premises in question to tenants; but the plaintiff sued the defendant himself. Held: The defendant was liable.

Adopted Nuisance:
Where a nuisance is caused by one person but is adopted by another, the person so adopting it is liable and cannot plead that the nuisance was not created by him:

Sedleigh-Denfield V O’Callaghan, (1940)
A trespasser placed pipe in a ditch which was on the defendant’s land, without the knowledge or consent of the defendant. The pipe was meant to carry off rain and all is downwash. When the defendants became aware of the pipe they used it to drain their own field. Subsequently the pipe became blocked and the water overflowed onto the plaintiff’s land. Held: The defendants were liable in nuisance, because they had adopted the trespasser’s act as their own.


  1. De Minimis Non Curat Lex (or Triviality);
    A person aggrieved by a nuisance can only maintain an action where the damage suffered is so trivial, minor or negligible that no reasonable person would have cause to complain , no such action may be maintained; and if sued the defendant may plead ‘de minimis no curat lex’
  2. Reasonable Use of Property:
    If the defendant can prove that the nuisance complained of resulted from a reasonable use of his property, as in Robinson V. Kilvert discussed above, this will to some extent afford him a defence. But this defence is not available where, as in Hollywood Silver Foxes V. Emmett (see above) the defendant’s act is proved to have been motivated by malice.
    Note: whether the use to which the property was reasonable in the circumstances is determined from the standpoint of the victim of the nuisance, because the essence of this tort is that no person ought to be wrongfully disturbed in the use and enjoyment of his land.
  3. Prescription:
    A prescription right to continue a nuisance is acquired after twenty years. Thus, where a nuisance has been committed on the plaintiff’s land form a continuous period of twenty years, the plaintiff cannot thereafter maintain an action in respect of the nuisance; and if he does, the defendant may plead prescription in defence.
  4. Public Benefit:
    Public benefit, as a defence to an action brought to remedy a nuisance, has only a limited application. Private rights must generally be respected. The only exception is where there is statutory authority to derogate from such rights. But even then there is need to act reasonably and within the statutory limit’ otherwise the person acting will be liable in nuisance, notwithstanding
    that his act was intended to benefit the public. Thus, where an authority had general powers to provide hospitals and it set up a fever hospital in a heavily populated area, it was held liable to people in the neighbourhood (the hospital could have conveniently been set up elsewhere): Metropolitan Asylum District V. Hill (1891).
  5. General Defence:


  1. Abatement: This remedy is by way of self-help. A person aggrieved by a nuisance is at liberty to abate (or stop) it. But the act of abatement must be peaceful and, where feasible, after notice to the tortfeasor, otherwise, by a dramatic turn of events, the aggrieved party might, in attempt to abate nuisance, render himself liable in nuisance instead!
    Chrisstle V. Aveyl (1893)
    The plaintiff used to conduct music lessons in his rooms, which was adjacent to the defendant’s. The defendant, who was annoyed by the disturbance, continuously banged the partitioning wall so as to disrupt the plaintiff’s music lessons. Held: The plaintiff was entitled to an injunction to restrain the defendant from interrupting the music lessons.
  2. Injunctions:
    This is a remedy which is granted to the plaintiff to restrain the defendant from committing the nuisance. It is awarded where the nuisance already exists or is impending.
  3. Damages:
    By this remedy, the plaintiff is entitled to full compensation in monetary terms, so as to make good the damages caused by the defendant’s nuisance; as far as money can do it. But the plaintiff can only recover what was reasonably foreseeable as likely to result from the defendant’s act. In this connection, regard must be had to the gravity of the nuisance and the extent to which the
    defendant’s act can be said to have been unreasonable, or wrongful.

Davey V. Hurrow Corporation, (1958)
The plaintiff’s house was damaged by the penetration of roots which came from trees on the adjoining land of the defendants. The plaintiff brought an action for damages nuisance. Held: The plaintiff was entitles to succeed in his action.

Note: The above case observed that if the trees encroached onto adjoining land, whether by branches or roots, and caused damage, an action for nuisance would lie and it was immaterial whether the trees were planted or self-grown.

3.9.3 Negligence
Negligence is one of the most important torts in the law. It was defined by Judge Alderson in case o Blyth V. Birmingham Waterworks Co. (1856) in the words: “The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.

As a tort, negligence consists of the following three elements:
1. The Duty of Care
2. Breach of the Duty of Care
3. Injury to the Plaintiff

The Duty of Care:
Lord Atkin defined a duty of care in Donohue V. Stevenson (1932) as the duty to take reasonable care to avoid acts or omissions reasonably foreseeable as likely to cause injury to your neighbour. This raises the question: who is my neighbour? Lord Atkin goes on to say that your neighbour in law is a person who is so closely and directly affected by your act that you ought
reasonably to have him in your contemplation.

In the case of driver every other road user (including his own passenger and also a pedestrian) is his neighbour in law; the driver owes all these other duty of care; the duty to have regard to them and to drive or use his vehicle safely. An employer’s neighbour system of work. A patient, too, is a neighbour in law to the hospital authority responsible for his treatment: the hospital owes him a duty to avoid act that might injurious to his health. Also, an occupier of premises owes his visitors a duty to maintain the premises in a safe condition or good state of repair, while a manufacturer or producer of goods owes his consumers a duty to ensure that his goods are free from anything that might cause damage or injury to the consumers.

Professionals like advocates, accountants, doctors, bankers, values, stock brokers e.t.c owe their clients a duty to take reasonable care in the transaction of the client’s business, failure to do which may entail liability in negligence. Indeed, the circumstances in which a duty to care may arise, and with it liability in negligence, are numerous and cannot all be enumerated here.

Duty of care and standard of care:
It is important to distinguish between the duty of care and the standard of care. The duty of care, as we have seen, answers the question whether the defendant was under any legal obligation towards the plaintiff. The standard of care, on the other hand, is a yardstick by which the defendant’s conduct is measured; it answers the question whether the defendant did what a reasonable man would have done in the circumstances. Thus, the standard of care required of every person is that of the reasonable man.

The duty of care is said to be breached where the defendant fails to exhibit that standard of care required of him. In order words, the defendant is said to have breached his duty of care where a reasonable man in his position would not have been done what he id. It remains to consider who is a “reasonable man” Generally, a reasonable man is a man of ordinary prudence. At least one judge has described him is the “man on the city bus”. Thus, in looking for the reasonable man we do not look for a person possessed of any special attributes or qualities; but it all depends on the circumstances of each case. In an accident case, for instance, the question to be asked is: What would a reasonable driver, properly directed himself, have done in the circumstances? In which case what has to be borne in mind done in the ordinarily prudent driver, not necessarily one who has been to a driving school. But where a person
professes to have some specialized knowledge or skill, e.g. an advocate, accountant or a doctor, the standard of care required of him is not that of the man on the city bus; rather he must do what a reasonable advocate, accountant or doctor, properly directing himself, would have done in the circumstances.

Injury to the Plaintiff
Proof of the existence of a duty of care on the part of the defendant, and its breach by the defendant, and its breach by the defendant, is not enough to establish liability in negligence. The plaintiff must go further and prove that he has suffered damage, or injury, as a result of the defendant’s breach of his duty of care. But even then, the plaintiff can only recover damages for injuries suffered if a reasonable man in the defendant’s position ought to have foreseen that his act or omission would result in injury to the plaintiff. The test applied is therefore that of foresee ability. Any injury that was not recovered by the plaintiff.

Cases on Negligence Generally:
Donoghue V. Stevenson. (1932)
A man bought from a retailer a bottle of ginger-beer manufactured by the defendant. The man gave the bottle to his lady friend who became ill from drinking the contents. The bottle contained the decomposed remains of a snail. The bottle was opaque so that the noxious was refilling her glass. The consumer sued the manufacturer in negligence. Held: (by the House of Lords): that the manufacturer was liable to the consumer in negligence.

Bourhill V. Young (1943)
The plaintiff, a pregnant woman, heard the noise of a road accident some distance away and walked to the scene. On reaching there she suffered nervous shock and subsequently miscarried. Held: The plaintiff could not recover in negligence because the injury she suffered, ‘or the manner in which it was caused, was not foreseeable. Note: Had the plaintiff not walked to the scene of the accident she would not have suffered the injury complained of. Her injury was therefore not foreseeable. Compare the following two

Dulien v. White & Sons, (1901).
The plaintiff a pregnant woman, was sitting behind the counter of her husband’s bar when suddenly a horse was driven into the bar. Fearing for the personal safety she suffered nervous shock and gave birth to a premature baby. Held: The plaintiff was entitled to recover in negligence.

Hambrook V.Stokes, (1925).
The defendants left their lorry at the top of a steep hill. Soon, it began to run away down the hill. The plaintiff’s wife, who had left her children round a corner, received a severe nervous shock for fear of her children’ safety; and as result, she died. Held: The defendant was liable.

Fatal accidents where the Victims of Negligence is dead:
Negligence sometimes results in the death of the victim. In such cases, obviously the victim himself cannot issue. But this does not mean that the tortfeasor is left free. The action is brought for the benefit of the members of the victim’s family and may be instituted by his execute or administrator or by and in the names of the members of his family.

Proof of Negligence:
Like in any other civil action, the burden to prove negligence generally lies on the plaintiff, he must prove that the defendant owed him a duty of care, that the defendant has breached that duty and that he (the plaintiff) has suffered damage in consequence. In certain cases, however, the plaintiff’s burden o proof is relieved by the doctrine of ‘Res ipsa loquitur’, where is applicable.

Res ipsa loquitur literally means: “The facts speak for themselves”. This is so where an accident occurs in circumstances in which it ought not to have occurred; e.g. where a car traveling on a straight road in clear weather and good visibility suddenly swerves off the road overturns; where a crane suddenly collapses; where a barrel of flour suddenly drops from a warehouse; where a heavy load suddenly falls off a moving vehicle; e.t.c. in all these (and other like) cases the accident ought not to occur unless there was negligence on the part of someone presumably the defendant. An explanation from the defendant in therefore called for accordingly.

Where the circumstances of a particular case are res ipsa loquitur, there is an inference of negligence on the part of the defendant, i.e. the defendant is initially presumed to have been negligent. Because of this, a provisional burden is put on the defendant to give reasonable explanation as to how the accident might have occurred. In the absence of such explanation there is nothing to rebut the presumption of negligence and the defendant is accordingly held liable (Embu Public Road Services Ltd. v. Riimi, (1968).
Res ipsa loquitur is a rule of evidence not of law. It merely assist the plaintiff(where applicable) in proving negligence against the defendant But before it can be applied , three conditions must be satisfied:

1. The thing inflicting he injury (e.g. a vehicle) must have been under the control o the defendant or someone over whom the defendant exercises control (e.g. his driver).
2. There must be no evidence or explanation as to why or how the event occurred.
3. The event must be such that it could not have happened without negligence.

Below are some East African cases on res ipsa loquitur:

Msuri Muhhiddin v. Nazzor bin Seif, (1960).
A bus in which the plaintiff was traveling overturned when both the offside rear tyres burst, and as a result the plaintiff suffered personal injuries. There was evidence that the bus was not at the material time being driven at an excessive speed and that the second defendant (the driver) before driving had satisfied himself that the tyres were good with tread still on them and therefore had no reason to believe that they were unsafe. Held; 1) The doctrine of res ipsa loquitur applied and the defendants could only escape liability if they could show that there was no negligence on their part which contributed to the accident or that their was a probable cause of the accident was due to circumstances beyond their control. (2) Since the bus was being driven at a reasonable speed and had been checked to ensure that the tyres were good, the defendants had discharged the burden imposed on them by the doctrine of res ipsa loquitur and could not beheld liable under the doctrine.

Contributory Negligence:
Of all the defences available to a defendant in an action for negligence, contributory negligence deserves special mention. Contributory negligence means any act or conduct of the party injured which may have contributed to the injuries he received. Previously, where the plaintiff partly contributed to his own injury in addition to the defendant’s act, the plaintiff thereby lost his right of action and could not sue the defendant. The common law was changed in England in 1945 by the Law Reform (Contributory Negligence) Act. I n
Kenya, it was changed by the Law Reform Act (Cap. 26). The present law provides: “Where any person suffers damages as the results partly of his own fault and partly of the fault of any other persons, a claim in respect of that damages shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks and equitable having regard to the claimant’s share in the responsibility for the damages”.

The position is the same as in fatal accident cases. If, for instance, the court would have awarded damages of sh. 100,000 but the plaintiff is found to be 30% guilty of contributory negligence, liability, will be apportioned between the plaintiff and defendant. In this case, the recover s h. 70,000 only from the defendant. He cannot recover the remaining sh. 30,000 because he himself was responsible or that part of the damage. The rule of contributory negligence does not apply in the case of young children because they knot be guilty of contributory negligence.

Contributory Negligence of Employees:
The Factories Act (Cap. 514) makes provisions relating to the guarding of dangerous machinery. If a worker is injured because a machine is not properly guarded, he may sue his employer for breach of statutory duty and/or negligence. The Act imposes many duties on employers, but the breach of these duties does not always give a civil remedy. Any omission by the employer will render him liable to his employees, though he can plead contributory negligence as defence.

Negligent Misstatement:
Previously, the general rule was that a person was liable of negligent acts but not for negligent misstatements. In Candler V. Crane, Christmas & Co. (1951), it was held that an accountant who negligently prepared certain accounts for a particular transaction was under no liability in tort in respect of those accounts, even though a plaintiff in reliance on the accounts invested money in a company
and suffered financial injury as a consequence. At present, any negligent misstatement is also actionable in law of tort if this statement leads to say financial loss incurred by the person who acts believing such a statement. This was made in
the case:

3.9.4 Defamation
Meaning of “Defamation”
The tort of defamation is constituted by the publication of a false statement, without justification, which tends to lower the plaintiff’s reputation in the estimation of right-thinking members of society or to injure him in his office, trade or profession, or which causes him to be shunned or avoided. No person should therefore publish a false statement which adversely affects the reputation of another, if such statement is without justification; or he may do so only at the risk of incurring liability for defamation. Instances of defamation are given in the cases cited below.

Elements of Defamation:
1. The defendant must have made a false statement. This is important because no action may be maintained by the plaintiff on the basis of a true statement.
2. The statement must be defamatory. This means that it must be such that its effect is to arouse odium, contempt or ridicule from right-thinking members of society. In other words it must tend to lower the reputation of the person referred to in the estimation of
such members of society. Thus, where A makes a statement that B has VD or AIDS, or that B is a criminal or a crook, or untrustworthy e.t.c., and right-thinking members of society react to the statement by shunning or avoiding B, or ridiculing him e.t.c., clearly such statement is defamatory and A may only escape liabilitly, if he can successfully rely on one or more of the defences which are discussed below.

Function of the Law Defamation
The law of defamation protects a person reputation. Every person has right to a good name and no one should unduly interfere with this right, it also protects a person’s business interest. This is why a false statement which tends to injure the plaintiff in his trade, occupation or profession is a actionable in defamation.

Types of Defamation

Defamation in a transient or non-permanent form, including defamation by word of mouth, is known as slander. As already pointed out, slander is actionable only upon proof of damage, the plaintiff’s action can be sustained only if he proves that he has suffered some damages as a result of the defendant’s defamatory statement. In exceptional circumstances are as follows:

1. Where the statement imputes a criminal offence it is punished by imprisonment.
2. Where the statement imputes a contagious disease on the plaintiff:
3. Where the statement imputes unchastity on a woman.
4. Where the statement imputes incompetence on the plaintiff in his trade, occupation or profession.

After a reporter form the defendant newspaper had visited the Lord’s Bar a statement appeared in the paper alleging that all the ladies in that bar had V.D. (veneral disease) and that the manager of the bar employed only such ladies. The proprietor of the bar and one of the bar-maids sued. Held: The plaintiffs were entitled to damages and there was not need to prove damage.

Libel differs from slander in the following respect. First, it is defamation in a permanent or a non-transient form, including written matter like a letter or an article, scandalous pictures (particularly where they are accompanied by a defamatory statement), film or news tapes e.t.c. Where defamatory matter is dictated to a secretary and she subsequently transcribes it, the act of dictation constitutes a slander while the transcript is a libel.

Every repetition of defamatory matter constitutes a fresh cause of action and anyone who repeats it may sued. A person who takes part in the distribution of such defamatory matter, whether by way of sale (in the case of a newspaper) or otherwise, is equally liable for defamation.

Defamation of Deceased Persons:
Defamation of a deceased person is not a tort but the person responsible may be a prosecuted criminally if it is intended to hurt the feelings of the deceased’s family or near relations. A number of defences are available to a defendant sued for defamation. The most obvious ones arise from the elements of the tort. Thus, a defendant may in appropriate circumstance plead that there was no publication of the matter complained of, or that it does not refer to the plaintiff, or (in ordinary cases of slander) that no damage has been suffered by the plaintiff. In addition, the defendant may avail himself at least one of the general defences e.g. consent of the plaintiff to the publication of the matter complained of. Besides these, there are certain defences which have particular relevance to this tort:

  1. Justification:
    Truth, or justification, may be pleaded as a defence where the matter complained of is true and the defendant fails to establish the truth of the matter, the case against him becomes more serious and aggravated damages may be awarded against him.
  2. Fair comment:
    Fair comment on a matter of public interest is another defence liable the defendant in a defamation suit. There must be facts truly stated, on the bases of which a comment is made; and the fact must not be mixed up with the comment in such a way that it is difficult to distinguish the one from the other.
  3. Absolute Privilege:
    Certain matters are not actionable at all in defamation, and are said to be absolutely privileged. They include statement made by judges or magistrates in the course of judicial proceeding as well as those made by members of parliament in the course of a parliamentary debate, and also communications between spouses.
  4. Qualified Privilege:
    An occasion is privilege, according to Pullman v. Hill Ltd. (1891) “when the person who makes the communications has a moral duty to make it to the person to whom he does make it, and the person who received it has an interest in hearing it.”An example is where a Head of Department makes a report to his superior about a subordinate official in his Department. He has a duty to
    make such communication to his superiors and the superiors have a corresponding duty (or interest) to receive it.
  5. Apology or Offer of Amends:
    The defendant is at liberty to offer to make a suitable correction of the offending statement coupled with an apology and/or notice of persons to whom the statement has been published that the words are alleged to be defamatory of the plaintiff.

The following remedies are available to the aggrieved party on the publication of defamatory statements:

1. Damages:
In actions of defamation, the plaintiff is entitled to recover damages for injury to his reputation and also to his feelings; injury to feelings is usually assumed and the plaintiff should recover damages for mental pain and suffering and anxiety arising out of his fear of the consequences of the publication, in addition to compensation for the insult suffered and the pain of false accusation as well as the irritation and annoyance experienced as a result of the defamation. The extent to which the defamatory matter is circulated is relevant in determining the quantum of the damages. But the plaintiff must take steps to mitigate the damage e occasioned by the defamatory statement he is entitled only to nominal damages: Sekitoleko v. Attorney General (1978). A failure by the defendant to withdraw or retract the defamatory statement, or to publish an apology, entitles the plaintiff to aggravated damages: Adimola v. Uganda Times (1978).

2. Apology:
An apology, particularly where it is not equivocal, is another remedy available to the plaintiff. This is because it has the effect of correcting the impression previously made by the offending statement about the plaintiff.

3. Injunctions:
The court may also grant an injuction i.e. to issue the orders for restraining the publication of a libel. But the plaintiff must for prove that the defamatory statement is untrue and its publication will cause irrepairable damage to him.

Limitation of Action:
The Limitations of actions (cap.22) contains the period limits within which the actions in tort can be brought. This act provides:

  • An action in tort must be brought within three years of the cause of action occurring. Where the damage arising from the tort does not become immediately apparent, the tie begins from the date of damage accruing.
  • Where the plaintiff is under disability (such as infancy or insanity) at the time when the tort is committed, time does not begin to run until disability ceases.
  • Where the tort consists of continuing wrong, anew cause of action a rises daily from when the tort is committed, and the plaintiff can recover damages for any damage suffered within the limitation periods.
  • Where the right of action is based on fraud, or the right action was concealed by fraud, limitation will run from the date of discovery, or from the time of plaintiff could have discovered it within reasonable ordinary diligence.
  • An action to recover a contribution from a joint tortfeasor under the law Reform Act (cap.26) cannot after the end of two years from the date of which that right accrued to the first tortfeasor.
  • Where there have been successive conversion of goods cease after the end of three years from the date of first conversion

The period of limitation in cases of libel and slander is twelve months (Defamation Act. Cap. 36)

Survival of Actions:

A common law maxin is “actio personalis moritur cum persona.”
It means a personal right of actions dies with the person. Thus it was not possible to bring an action for personal wrongs of a deceased person. This general rule was abolished by the Law Reform Act (Cap.26) of Kenya. This act does not apply in cases of defamation, seduction or to claims for damages on the grounds of adultery. In all other cases, the Act provides:

  • Where an action exists against a person at his death, it survives against his estate, provided that proceedings had been commenced before his death, or that proceedings are taken within six months after his personal representatives have
    taken out representation.
  • Where a right of action exists for the benefit of a person, it survives his death, subject to the limitation periods in the limitation of actions Act (Cap.22). Passing off:

When a person passes of his goods or business as those of another reputable business firm, it is known as a tort of passing off. This tort can take the following forms:

  1. Using the name of a reputable business firm.
  2. Imitating a trade mark, description, wrapping etc.

The tort results in damaging the business interest of a firm. In these cases, the plaintiff may sue not only for damages, but may ask for an injunction also.

Malicious Falsehood:
This tort is committed when a person makes a false and malicious statements and such statement cause a financial loss to another person. These statements may relate to the proprietary interest of another person. For example, if ‘X’ makes an allegation that ‘Y’ is offering certain goods for sale, in infringement of a patent right owned by ‘Z’ this statement is not true.

The essentials of malicious falsehood are

  1. The statement of false.
  2. There is malice (i.e. ill-motive).
  3. It tends to make others act on the basis of this statement.
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