The need to properly plead and prove vicarious liability

In its judgment in civil appeal case (HCCA NO. E007 of 2020), the High Court of Kenya, at Mombasa heard an appeal by the appellant, Samuel Kinyanjui and Martha Ng’endo Kahiga, representing the estate of Mariam Wambui, against the respondents Mega Transporters Company Limited and Susan Muluka.

The judgment highlights the duty of the appellate court, which is to review the trial court’s findings of fact and exercise discretion regarding damages. It also emphasizes that the appellate court should not interfere with the trial court’s findings unless there was a misdirection or a clear error in the exercise of discretion leading to an injustice.

The court discusses the grounds of appeal presented by the appellant and notes that they raised numerous and repetitive grounds. The court cites a previous case to emphasize the need for concise and focused grounds of appeal, rather than verbosity and repetition.

Regarding the specific issues of the case, the court mentions the negligence allegations against the respondents and the denial of liability by the second respondent (Susan Muluka). The court notes that the appellant failed to plead or prove vicarious liability of the second respondent, as there was no evidence to establish that the driver of the vehicle in question was an agent or servant of the second respondent.

Based on the analysis of relevant case precedents, the court concludes that the lower court was correct in dismissing the suit against the second respondent. The appeal therefore stood dismissed, and costs are awarded to the second respondent.

Overall, the court’s reasoning appears to be logical and in line with established legal principles. Okello Kinyanjui and Company LLP represented the successful 2nd respondent, and the decision of the court can be found on the following link, i.e.,

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