JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM

1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY

SCHOOL OF BUSINESS AND SOCIAL SCIENCES, KAREN CAMPUS.

BACHELOR OF BUSINESS INFORMATION TECHNOLOGY, YEAR TWO,

SEMESTER ONE; JUNE-AUGUST 2021

UNIT CODE: HPS 2108: LEGAL ISSUES IN PURCHASING AND SUPPLY

LECTURER: DR. STEPHEN AMING’A, PhD(Law), LLM, PGD (Law), LLB,

ADVOCATE,COMMISSIONER OF OATHS AND NOTARY PUBLIC; LECTURER,
JKUAT SCHOOL OF LAW,

LECTURE NO. 9:

TOPIC: LECTURE NOTES ON LAW OF TORTS.

1.0 Introduction

The law of torts is part of the law of obligations which provides a framework that defines
civil wrongs and measures for the protection of personal, proprietary and economic
interests.
 It has its origins in common law although with time, legislation created more torts and
bases for tortious liability.
1.1. Meaning
 A tort is elusive to define but its meaning is easier to state. Generally, it refers to crooked
conduct as opposed to straight conduct. Consequently, the following meanings have
been assigned to a tort:
a) Peter Birks describes a tort as
“ the breach of a legal duty which affects the interests of an individual to a degree

which the law regards as sufficient to allow that individual to complain on his or her

own account rather than as a representative of society as a whole.”1

b) Sir (Justice) Frederick Pollock defines it as follows:

“A tort is an act or omission giving rise, in virtue of the common law

jurisdiction of the Court, to a civil remedy which is not an action of contract”2.

1.2 Interests protected under the law of Torts they are protected

1
Peter Birks, The Concept of a Civil Wrong in Owen (ed.), Philosophical Foundations of Tort Law, at p.51, 1995.
2
Frederick Pollock, The Law of Tort, 4th Edition, at p.4, London, Stevens & Sons Limited, a 1895
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

I) Personal interests hence torts to the person

II) Proprietary Interests hence wrongs to or against property

III) Wrongs to person, estate and property generally

IV)Wrongs against public interests.

1.3 Classification of Torts by Interest Protected

I) Wrongs to the person fall in four categories namely;

a) Wrongs affecting safety and freedom of the person e.g. Assault, battery, false

imprisonment

b) Wrongs affecting personal relations in the family e.g. Seduction, enticing away of

servants.

c) Wrongs affecting reputation : Slander and libel ( Defamation)

d) Wrongs affecting estate generally: Deceit, slander of title, malicious prosecution,

conspiracy

II) Wrongs to property: e.g. trespass to land and to trespass to goods e.g. conversion,

detinue, disturbance of easements, interference with rights analogous to property,

suchas private franchises, patents, copyrights.

III) Wrongs to person, estate and property generally e.g. nuisance, negligence, and

breach of absolute duties attached to the occupation of fixed property, to the

ownership and custody of dangerous things and to the exercise of certain public

callings.

IV) Wrongs to public interest e.g. Public Nuisance.

JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

1.4. BASIS OF LAIBILITY IN THE LAW OF TORTS

For an aggrieved party to secure a remedy in torts, the claimant must prove the

following elements:

a) There was a legal duty or a duty primarily fixed in law owed by the tortfeasor

( wrongdoer) to the claimant [ duty of care] .

b) There was breach of that duty by the tortfeasor and proof of breach: An act or

omission.[Breach of the duty of care]

c) The claimant suffered damage or harm to person or property recognized at law and

redressible by way of monetary compensation known as unliquidated damages.

[Harm]

 According to Professor Winfield,

"tortious liability arises out of breach of duty primarily fixed by the law: this duty is

towards persons generally and its breach is redressible by an action for unliquidated

damages"3

 In the land mark case of Donoghue v Stevenson [1932], Lord Atkin expounded on the

duty of care in the context of a claim under negligence. He noted that

“You must take reasonable care to avoid acts or omissions which you can reasonably

foresee would be likely to injure your neighbor. Who, then, in law, is my neighbour? The

answer seems to be persons who are so closely and directly affected by my act that I

ought reasonably to have them in contemplation as being so affected when I am directing

3
Rogers, W.V.H.; Winfield & Jolowicz on Tort, 17 th Edition, Chapter 3, Sweet and Maxwell, London
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

my mind to the acts or omission which are called in question”.4 The neighbor principle

remains the backbone of the duty of care.

1.5 RELATIONSHIP BETWEEN TORTS AND OTHER BREACHES OF THE LAW

a) Tort and Crime:

 Torts are redressible by way of monetary compensation to the aggrieved party unlike

crime for which a convict is punished through imprisonment, fine or forfeiture of some

interest or property.

 Claims under torts are initiated by private persons or those affected by the tortious act or

omission while in crime, the prosecution is initiated and conducted by the state as a

matter of public interest and the victim of crime is usually a prosecution witness.

 Proceedings arising under torts are civil in nature and engage private parties while

criminal proceedings are criminal in nature and involve the state and the accused person.

 Torts are subject to law of limitations unlike crimes which are not subject to any such

constraints. Some claims under tort must be commenced within 12 months from the date

the cause of action arose and in default, the aggrieved party may lose the right to claim

unless with express leave of the Court under exceptional circumstances.

 Some torts are also crimes e.g. nuisance, battery, assault, deceit, conspiracy, slander, libel

and negligence.

b) Torts versus breach of contract:

 In contract, generally, the rights and obligations/duties of the parties are

primarily fixed by the parties to the contract unlike in tort where the duty and

rights are fixed by law.

4
[ 1932] UKHL 100, Case was decided by the Judicial functions of the House of Lords on 26 may 1932
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

 In both claims under tort and contract, a successful claimant may be awarded

monetary compensation including unliquidated and liquidated damages. In

torts, the damages payable are determined by the court hence the term

unliquidated.

 In torts, unlike for contracts, the principle of privity does not apply hence a

third party can claim under torts while in contract a third party can only claim

or be held liable under a contract under exceptions to the doctrine of privity of

contract.

 In contract some terms are implied into the contract either by custom,

legislation or courts so as to give the contract efficacy and protect the weaker

party in the contract e.g. contract for sale of goods.

 An aggrieved party can make concurrent claims in contract and torts for

claims arising under contract e.g. for conversion, detinue, negligence.

c) Torts versus breach of trust

Tort is a breach of legal duty recognized under common law while claims for breach

of trust are founded in equity and relate to breach of equitable duties or obligations.

d) Torts versus breach of fiduciary duty:

Claims in tort relate to breach of a duty fixed by law (common law and legislation)

while claims for breach of fiduciary duty concern breach of obligations recognized

under equity, trust and in some cases legislation e.g. under section 80 of the

Advocates Act, an advocate may be prosecuted for breach of trust. Other claims may

arise under the Companies Act in relation to breach of statutory duties of a director.
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

1.6 PRINCIPLES AND TYPES OF TORTIOUS LIABILITY

Principles

As noted earlier, for a claimant to succeed in a claim in tort, he or she must proof three elements:

a) That the tortfeasor owed him a legal duty; primarily fixed by law.

b) The torfeasor or his servant and/or agent breached that duty by way of act or omission.

c) The breach resulted in damage or harm to the claimant whether personal and/or

proprietary and that harm or damage is recognized in law and redressible by way of

monetary compensation known as unliqudated damages.

The three requirements are also known as the principles of tortious liability.

Types of liability

By reference to basis or requirements, the following types of tortious liability exist in law:

a) Strict liability/Absolute liability/ no fault liability. This is also known as the Rule in

Rylands v. Fletcher (1868). The decision of the House of Lords established a new area

of English tort law. In the case, the appellant had employed contractors to construct a

water reservoir for him. He played no active role in the works. As the contractors

executed the works, they came across a series of old coal shafts improperly filled with

debris. Instead of properly blocking up the shafts, the contractors decided to continue

with the construction. Upon completion of the works, the reservoir was filled with water

only for it to burst and flood the neighbouring mine, run by Fletcher. The flooding caused

Fletcher loss value at 939 pounds. Fletcher’s claim in the Court of Exchequer of Pleas

failed by majority but Bramwell J dissented and argued that the Claimant (Fletcher) was

entitled to enjoy his land without interference from water, and that as a result, Ryland
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

was guilty of trespass and commissioning a nuisance. The dissenting view was upheld by

the Court of Exchequer Chamber and ultimately upheld by the House of Lords on

grounds that the appellant, Rylands was guilty of trespass and commissioning of a

nuisance and was therefore strictly liable for the damage that naturally flowed from his

conduct. This resulted in the land mark rule that

“ the person who for his own purposes brings on his lands and collects and keeps there

anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not

do so, is prim facie answerable for all damage which is the natural consequence of its

escape”. The appellant was held strictly liable for harm suffered by the Respondent.

As long as harm has been occasioned, it was immaterial that the tort was unintentional or

without malice. This form of liability applies to escape cases involving animals, fumes,

water, noise and even sewage. In such cases, non-natural use of land or premises by the

owner exposes them to risk of liability in tort in case the thing brought and kept on the

premises has potential to escape and the owner knows that, if the thing escapes and

causes harm to a third party, the owner or keeper is liable. Animals that are naturally

ferocious e.g. lions, tigers, dogs or even horses can be cause harm to third parties.

b) Fault-based liability: Requires claimant to prove negligence on the part of tort feasor to

found basis for liability. Applies in cases of negligence as in Donoghue v Stevenson

[ 1932]

c) Vicarious Liability: Liability by imputation due to existing legal relationship between

tortfeasor and a third party upon whom liability is attributed by reason of the legal

relationship e.g. Employer-Employee; principal-Agent; Master- Servant. In such a case,

JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

the tortious acts and omissions of the employee, servant or agent committed in the cause

of employment and within the scope of authority are imputed on the employer, master or

principal. This legal position is justified on the fact that due to the existing contractual or

legal relationship, the third party has the right, ability or duty to control, direct or

authorize the tortfeasor to execute his duties and to take measures to ensure that no third

party is hurt by the servant, employee or agent in the cause of carrying out the contractual

duties. The third party, usually a superior exercises or has authority over the tortfeasor

and liability is imputed because the 3rd party benefits from the services of the subordinate

and the third party has resources and means of controlling the activities of the tortfeasor.

d) Occupiers Liability: Based on ownership or occupation and use of property e.g. a lodge,

factory, or any other work place including a sports arena, school,college or university

premises: Liability may arise under common law or statute/legislation or even contract.

Under the Occupational Safety and Health Act, 2007, such liability exists. The same

arises under the Occupiers Liability Act, cap 39, laws of Kenya. The occupier owes a

person who is lawfully on the occupier’s premises a duty of care while the occupier does

not owe any such duty to a trespasser or a thief who breaks into the premises.

e) Manufacturer’s Liability: For defective goods: both under common law and legislation

e.g. The Sale of Goods Act, CAP 31, Laws of Kenya or the Consumer Protection Act,

No. 46 of 2012. In Kenya, Article 46(1) of the Constitution of Kenya 2010 guarantees the

fundamental rights of a consumer including the right to goods and services of reasonable

quality; the right to the information necessary for the consumer to gain full benefit from

the goods or services; the right to the protection of their health, safety and economic
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

interest and the right to compensation for loss or injury arising from defects in goods or

service. Therefore manufacturer’s liability for defective goods has a constitutional basis.

f) Employer’s Liability: This is usually statutory: Under the Employment Act, 2007, The

Labour Relations Act, 2007, The Occupational Safety and Health Act, 2007, The Work

Injury Benefits Act, 2007, The Pensions Act, The Retirement Benefits Act, The Income

Tax Act, Cap 470, Laws of Kenya, The National Social Security Act, The National

Hospital Insurance Fund Act among others.

g) Liability of Independent Contractors: Personal, not imputed on their employers or

clients. Examples are professionals like Advocates, Accountants, Auditors, Architects,

Engineers and medical doctors who are practicing on their own account. However, if a

professional is an employee, vicarious liability may arise in suitable cases. If the act or

omission in question was perpetrated when the employee was off duty or the professional

was undertaking a private assignment or project, e.g. in a private clinic or firm, the

employer is not vicariously liable.

1.7 EXTINCTION OF LIABILITY

Refers to means, events or circumstances under which liability may be extinguished or

terminated. They include;

a) Waiver of rights or claim by aggrieved party, b) Accord and satisfaction; c) Release

d) Final judgment in favour of an alleged tortfeasor; e) Limitation of Actions and

abatement of claims/liability under the Law of limitations f) Subrogation especially

in insurance contracts and tortious claims arising from or in connection with such

contracts: Claims in negligence in case of motor vehicle accidents g) Death of tort

feasor or aggrieved party especially for wrongs to the person e.g. slander and libel,
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

assault or battery. Not all actions or claims cease upon death of claimant or

tortfeasor. Some Personal representatives of the deceased parties may still be pursued

to their logical conclusion.

1.8 CAUSATION AND REMOTENESS OF DAMAGE

 In the law of torts, not all tortious acts or omissions are actionable or do lead

to liability. Some may be exempted from legal liability under the principles of

causation and remoteness of damage or the principle of voluntary assumption

of risk (“Volenti non fit injuria”) and general consent. In the latter cases are

sports and games which are inherently risky and dangerous and given to

rough techniques like football, hockey, horse racing, motor racing, skiing and

skating, boxing, wrestling among others.

 Remoteness of damage is a principle which exempts a party from liability in

tort on grounds that there is no direct connection or close proximity between

the alleged harm and the act or omission of the alleged tortfeasor. Thus, the

harm complained of cannot be justifiably attributed to the alleged tortfeasor.

On causation, in case there are intervening acts or omissions, between the

alleged tort and the alleged harm or damage, then the intervening act or

omission cuts the causation thus making the initial tort remotely connected to

the harm. In that case the original tortfeasor could escape liability.

1.9 GENERAL DEFENCES TO CLAIMS UNDER TORTS

The following defences may be raised by a defendant in a claim under torts and if

proved to the required legal threshold, the defendant may be discharged from

liability.
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

1. Consent: The claimant voluntarily consented to the harm provided it is not

criminal. The consent may be express or implied but it must be freely given or

voluntary. Consent given under duress or inducement or deception is no consent.

2. Volenti non fit injuria: Voluntary assumption of obvious and usual risks as in

sports and games. Any injuries in the course of participation in such games or

while spectating or watching is not legally actionable. They are obvious risks

which one knows beforehand and upon resolving to take part or watch, the party

makes an informed choice and therefore consents to the attendant risks. Thus, if

they suffer harm, they should not be heard to complain or should hold themselves

responsible and liable for their loss.

3. Inevitable accident: The accident could not be prevented or stopped however

diligent the tortfeasor might have been and whatever the precautionary measures

taken to forestall it.

4. Act of God or force majeure: An act that is outside foresight and control of any

human being. Supernatural acts or events that are usually catastrophic e.g. floods,

thunderstorms, pandemics, death

5. Act of stranger or third party e.g. a trespasser or criminal.

6. Privilege: Absolute and qualified: Applies in claims for slander and libel against

a newspaper, media house, reporter, author, members of parliament, or judicial

proceedings whereat an advocate, witness and judicial officers are not liable in

tort for what they say in the proceedings; that is privileged communication.
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

7. The Truth or justification: Applies in claims for defamation (Slander and libel).

Normally meant to safeguard freedom of the press provided there is no malice or

recklessness of the part of the media.

8. Private Defence and Defence of one’s property or another person or

person’s property: especially in cases of assault or battery

9. Duress/coercion/intimidation/manipulation: Where one does a tortious act or

omission under compulsion or threat or undue influence; involuntarily and

without negligence, fault or malice or intent e.g. where a person is abducted and

forced to drive across or destroy another person’s land or property.

10. Necessity or justification e.g. in case of claims of assault, in case of an

emergence e.g. putting out a fire or preventing spread of a fire or other harm to a

person or person’s property.

11. Legal Immunity e.g. President’s immunity from civil and criminal proceedings

and liability for acts or omissions committed while in office, same applies to

judicial immunity enjoyed by judicial officers, parliamentary privilege and

attendant immunity, statutory authority or immunity e.g. when police or other

person is lawfully preventing crime or combating criminals.

12. Contributory negligence: The claimant is partly to blame for the harm suffered

by his conduct; act or omission.

13. Discipline e.g. in case of claims of assault or battery by a person serving in the

disciplined forces e.g. Kenya Defence Forces or Police or training in a sporting

activity. Certain activities which may ordinarily be actionable are exempted on

JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

grounds of discipline and public interest. The nature of the training includes those

painful activities.

1.10 REMEDIES AVAILABLE UNDER TORTS

Successful claimants for breach of the duty of care may be awarded one or more

of the following remedies:

a) Damages: Monetary compensation determined by the Court. Could be

general, punitive, nominal, restitutionary or special

b) Injunction; Could be permanent, temporary or inter-locutory or interim

depending on the facts of case provided the requirements for grant of

injunction are satisfied by the claimant.

c) Apology and Amends: Applies in cases of slander and libel (defamation)

d) Specific Restitution of property

e) Self-Help.

POLICY OBJECTIVES OF THE REMEDIES

a) Appease the injured or aggrieved party

b) Do justice

c) Deter-prevent a repeat of the conduct complained of either by the

tortfeasor or others ( potential tortfeasors)

d) Compensation to successful claimant: so far as money can go

e) Distribution of losses/efficiency in allocation of losses and gains

f) Punishment: This is secondary but justified in some cases: make the

penalty fit the offensive conduct: E.g. through award of punitive or

aggravated damages
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY, SCHOOL OF BUSINESS AND SOCIAL SERVICES, BBIT , YEAR TWO, SEM
1, JUNE-AUGUST 2021, LECTURE NOTES: HBT 2203: COMMERCIAL LAW BY DR. STEPHEN AMING’A

f) Safeguard public interest e.g. the due process or administration of justice

g) Protect private interests against unlawful invasions e.g. in cases of trespass,

nuisance.

FURTHER READINGS

1. Winfield., The Province of the Law of tort (1931)

2. William G.; The Foundation of Tortious Liability, Vol. 7, Cambridge

Law Journal, 1939.

3. Friedman, The Interaction of Tort and Contract, Vol. 93 Law Quarterly

Review 422, 1977

4. Flemming,; The Law of Torts 1998.

INDICATIVE LIST OF REFERENCE MATERIALS

1. Limitations of Actions Act, Cap 22, Laws of Kenya.

2. Law Reform Act, Cap 26, Laws of Kenya

3. Fatal Accidents Act, Cap 32, laws of Kenya

4. Occupiers Liability Act, Cap 34, Laws of Kenya

5. Defamation Act, Cap 36, Laws of Kenya

6. Trespass Act, Cap 294, laws of Kenya

7. HIV and AIDS Prevention and Control Act, 2006.

8. Public Officer Ethics Act, 2004.