Court rules employers not liable for staff's personal acts

The Court of Appeal in Nakuru has ruled that employers are not automatically liable for an employee’s wrongful acts if the act was outside the scope of employment and for personal gain.

Court of Appeal Judges Paul Gachoka, Mohamed Warsame, and John Mativo observed that the master is not responsible for any misconduct committed by a servant towards a third party.

The case stemmed from a magistrate’s ruling, where a BM Security driver, Charles Amariba, was involved in an accident while ferrying a passenger, Joseph Macharia, in violation of company policy.

On January 9, 2012, Macharia was waiting to board a matatu to Nakuru when Amariba stopped and invited him to board the vehicle.

“He accepted the invitation and was informed he would buy tea as payment,” the judgment stated.

Macharia informed the court that the vehicle was driven at high speed and veered off the road, overturning at Elburgon. As a result, Macharia suffered a fracture to his right scapula and a sprain to his right shoulder joint.

Macharia sued Amariba and BM Security for negligence, alleging the accident occurred within the scope of the driver’s employment. The magistrate found the driver liable for Sh309,800 but absolved BM Security of vicarious liability.

Macharia appealed, and the High Court ruled BM Security was vicariously liable for the accident. The court ruled that there was no clause in an agreement submitted in court barring the driver from carrying passengers.

BM Security, dissatisfied, argued the driver was not acting within his employment scope.

The company also claimed its vehicles were branded with the company logo, which prohibited unauthorised passengers. That the passenger knew the vehicle was not licensed for public transport, and had no grounds to assume that the driver could carry passengers for a fee.

The Appeal Court found the driver was using the company’s resources for personal gain and outside the scope of employment, ruling BM Security not liable for damages.

“In our view, there is no difficulty in concluding that the appellant cannot be at fault for the illegal actions of the servant, who exceeded his mandate and jeopardised the interests of the master. It is that simple,” the judges stated.