Business Law 1

LAW OF TORT

The word tort is derived from the Latin word tortus meaning twisted and is connected with the French
term “avoir tort” which means wrong. It is a wrong set in the civil as opposed to the criminal setting. It
is a wrongdoing, which is actionable at the instance of the injured person. The remedy for tortious
liability is damages, but the plaintiff may be granted an injunction or by an order of specific restitution of
something withheld from the plaintiff. Torts are those kinds of wrongs, which have been through the
ages defined in the cases which have evolved through judicial creation and which continue to be created
and defined. Thus starting in the 13th century with the rootstock of writ of trespass as a remedy for
direct injury to person, land or goods. From the 14th century onwards by the device of sanctioning
actions on the case, i.e., allowing new claims where the plaintiff proves he has been harmed in less
obvious ways. In this process a number of torts have been recognized in the course of time.

Tort has been generally defined as a civil wrong, other than a breach of contract or breach of trust.
However, note that certain actions constitute a crime as well as a tort and may give rise to both criminal
and civil proceedings. Prof. Winfield gave a more succinct definition of tort: “Tortious liability arises
from the breach of a duty primarily fixed by the law: such a duty is towards persons generally and its
breach is redressible by an action for unliquidated damages.”

General Conditions of Liability in Torts

Generally, a tort consists of some act done by the defendant whereby he has without ‘just cause’ or
excuse caused some form of harm to the plaintiff. An action of tort is usually a claim for pecuniary
(monetary) compensation in respect of damage suffered as the result of the invasion of a legally
protected interest. The law affords protection against invasion of interests in bodily security, integrity of
land or chattels, freedom of reputation, security of domestic or contractual relationships and to some
extent emotional security.

The law distinguishes between two concepts: damnum, which means the damage suffered, and injuria,
which is an injury having legal consequences.

Damnum sine injuria

The mere fact that a person has suffered damage does not entitle him to maintain an action in tort.
Before an action can succeed, the harm suffered must be caused by an act, which is violation of a right,
which the law vests in the plaintiff or injured party. Damage suffered in the absence of violation of such
legal right is known as damnum sine injuria. Damnum sine injuria occurs in the following instances:
where the harm done may be caused by some person who is merely exercising his own rights; that is in
the case of the loss inflicted on individual traders by competition in trade, or when the damage is done
by a man acting under necessity to prevent a greater evil, or in the exercise of statutory authority.

The courts may hold, on balancing the respective interests of the parties; that sound policy requires that
the interests of the defendant should prevail over those of the plaintiff. So the natural right to support
of a landowner is subordinate to the natural right of his neighbour to exploit his property by the
extraction of underground water not percolating through defined channels, whether the defendant has
acted intentionally or carelessly, as was in the case of Bradford Corporation v Pickles (1895).

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Injuria Sine Damnum

This means that although no actual damage is done, there is a violation of a legal right of the plaintiff.
This is actionable in court. In Ashby v White (1703), 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.
Held that the defendant was liable because the plaintiff was denied of his legal right of registering his
vote.

Torts are of two kinds – namely, those, which are actionable per se, and those, which are actionable only
on proof of actual damage resulting from them. Thus the action of trespassing upon another’s land is
actionable even though it has done the plaintiff no harm. The importance which the law places on the
security of the plaintiff’s interests in such a case can be seen from the fact that the onus lies on the
defendant to justify his conduct – e.g., in an action of libel the defendant must show that the statement
is true or privileged or protected by whatever other defences that may be available. On the other hand,
in torts such as negligence or malicious prosecution the onus lies on the plaintiff to show that the
conduct of the defendant is legally unjustified.

Tort Distinguished from:-

(1) Crime

Both torts and crimes are wrongs and both may arise out of the same facts, e.g., assault and battery.
The distinction between the two is that a crime is an offence against the state, for which the agencies of
the state may prosecute (in certain situations private prosecution is possible), whilst a tort concerns only
the parties involved in actual wrongdoing. The individual injured must commence actions in tort, he will
be the plaintiff and the person who inflicted the injury will be the defendant. In criminal matters the
purpose of the action may be broadly classed as punishment, the purpose of which is retribution,
prevention reform, deterrence and rehabilitation, whilst the purpose of the action in tort is to
compensate the plaintiff as far as a money award is able to achieve this objective. There are certain
instances where a defendant can be punished this is by the awarding of exemplary/punitive damages.

In criminal law motive (malice/intention) is an essential element in determining the occurrence and
nature of an offence. However, the motive with which an act is done is generally irrelevant in
determining whether an act was tortious or not. The good motive will not excuse a wrongful act; and a
bad motive, i.e., malice, will not make an otherwise lawful act unlawful. In Bradford Corporation v
Pickles (1895), the defendant was held not liable for intentionally intercepting, by means of excavations
on his own land, the underground water that would otherwise have flowed into the adjoining reservoir
of the plaintiff’s, although his sole motive for doing so was to coerce the plaintiff’s to buy his land at his
own price. There are certain exceptional cases where the presence of malice is an important ingredient
in determining the liability: Malicious prosecution, injurious falsehood, defamation – the defence of
qualified privilege will be destroyed if malice can be proved. Also if the defence is of fair comment on a
matter of public interest, the presence of malice will render such defence ineffective, and conspiracy –
the presence of malice is essential to prove that the persons concerned have no lawful justification for
performing acts causing damage to the plaintiff.

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(2) Contracts

Like a tort, a breach of contract is a civil wrong and the usual remedy for breach of contract is an action
for damages. However, there are differences between torts and contracts. The theory of contracts is
that the defendant’s obligation rests upon agreement, while in torts obligation rests solely upon the
rules of law. Note the following points:

(a) If the plaintiff cannot sue without proving the existence of a contract between himself and the
defendant, then the action is for breach of contract and not for tort.

(b) In contract duties are fixed usually by the parties themselves, while a tort consists of a breach of
duty fixed by the law, e.g., the duty to drive carefully.

(c) A person who is not party to a contract cannot sue for breach of it, even though the breach has
caused him damage. But if the defendant’s action is also a breach of a legal duty, any person
injured can sue in tort. Thus the doctrine of Privity does not apply to proceedings under tort. In
Donoghue v Stevenson (1932), it was held that a manufacturer of products was under a duty to
the ultimate user or consumer even though there was no contractual relationship between
them. This duty had its origin in the law of tort and not in the law of contract; nor did it amount
to a warranty that care had been taken to see that the article was sound – an obligation
appropriate only to the contractual relationship of vendor and purchaser: the duty was no more
than to take reasonable care to protect the consumer.

It has also long been clear that a professional person such as an architect, banker, doctor, e.t.c.,
might owe a duty of care to someone other than the other party to the contract. Liability has
been imposed, whether the damage caused to the plaintiff was physical or financial. The duty is
imposed not because he or she has made a contract, but because he or she has undertaken the
work.

(d) As to damages there are four points of differences:

• Measure of damages: In tort the damages are unliquidated while in contracts they may
be liquidated.
• Remoteness of damages: In tort one can be liable for damages arising from
circumstances unknown to him, but this is not the case in contracts.
• Damages in contract put the plaintiff in the position he would have been in had the
contract been performed, whereas damages in tort put him in the position he would
have been in, had the tort not been committed.
• Motive is not relevant in a breach of contract, but it is relevant in some torts, e.g.,
malicious prosecution.

Specific Torts

(1) Negligence

Although there are numerous instances of liability in negligence, there has been no connecting principle
formulated which could be taken as a basis for all of them. Until the 19th century there was no general
guide to how the duty of care was imposed. The issue was not clarified until the celebrated case of

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Donoghue v Stevenson (1932). In this case, the appellant went with a friend to a café. The friend
treated her to a ginger beer, which was in a dark opaque bottle. Paisley poured some of the contents
into a glass and the appellant drank there from. When the appellant emptied the rest of the contents, it
was seen to contain the remains of a snail. The latter circumstances caused the appellant to suffer
shock. She later contracted gastroenteritis in respect of which she claimed damages. Since she was not
in a contractual relationship with Paisley, she could not sue him and she was forced to sue the
respondent who was the manufacturer of the ginger beer. By a majority the House of Lords held that in
such circumstances a duty of care was owed. In his judgment Lord Atkin formulated what has come to
be known as proximity test. “You must take reasonable care to avoid acts or omissions which you can
reasonably foresee to be likely to injure your neighbour.” Who then by law is your neighbour? A
neighbour is a person who is affected by your actions or omissions.

For negligence to exist, there must be a duty of care recognized by law in the situation in which the
defendant finds himself. There must be a breach of that duty. There must be damage resulting from
that breach. The resulting damage must not be too remote a consequence of the breach.

Duty of Care

It is upon the plaintiff to establish the duty owed. A duty of care will be owed where the circumstances
are such that at the time of commission of a wrong, the defendant ought to have seen the likelihood of
injury to the plaintiff if he failed to take reasonable care. In Home Office v Dorset Yacht Co. Ltd. (1970),
the defendant officers were in charge of a party of borstal boys. They decided to leave the boys
unsupervised and retired to bed. The boys boarded the plaintiff’s yacht and caused it to collide with
another yacht. The plaintiff claimed for damages. Held that through their officers, the defendant owed
a duty of care to the plaintiff. The officers ought to have foreseen damage to the plaintiff’s vessel as
likely when they abandoned their duty.

In situations where harm to the plaintiff is unlikely, the duty of care will not be owed (remoteness of
damage). In Bourhill v Young (1943), the defendant, a motorcyclist was killed in an accident as a result
of his dangerous driving. The plaintiff was on the other side of the tramcar at the time of the collision
and so did not observe the collision. However she heard a loud noise and subsequently saw the
defendant’s blood on the road. She suffered a nervous shock and became ill and suffered a miscarriage.
It was held she could not succeed in action for negligence against the defendant’s estate, since the
deceased could not have foreseen the injury suffered, although he was clearly in breach of the duty to
drive carefully.

In exceptional circumstances however, foresight of improbable events may be demanded. In Overseas

Tankship UK v Miller Steamship Co. Ltd (1967), the defendants’ servants discharged furnace oil into the
Sidney harbour. The oil drifted towards the wharf where the servants were using oxyacetylene. In the
course of repairing the plaintiff’s ship, the oil was ignited by the falling of pieces of hot metal from the
welding operations. The plaintiff’s ship was damaged in the resulting fire. The defendants were held to
be liable to the plaintiff’s for damages in negligence.

Breach of Duty

Standard of care required is not an ideal standard; it is that of the average person placed in the
defendant’s position and circumstances. These circumstances include his calling, thus his trade calling
or condition, e.g., a ship engineer will be judged by a ship engineer, a doctor by a fellow doctor and a

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factory worker by the standards of the factory worker. If an amateur undertakes an expert’s work, he
must do it according the expert’s standards. And if the task assumed by an amateur, e.g., performing a
surgical operation, is beyond his skill, the amateur may be treated as negligent for having under taken
the task. In Wales v Cooper (1958), a do-it-yourselfer put a handle on a door. He did it as well as an
ordinary joiner would, nevertheless the handle came off in the plaintiff’s hand and injured him. It was
held that the defendant had acquired the standard required of him. The degree of care and skill
required must be measured not by competence, which the defendant personally possessed, but by
reference to the degree of care and skill, which a reasonably competent carpenter may be expected to
apply to the work in question.

The general nature of the obligation consists in “the omission to do something which a reasonable man
could upon those considerations which ordinarily regulate the conduct of human affairs would do or
doing something which a reasonable person would not do,” as per Baron Alderson in Blyth v
Birmingham Water Works (1843-60). In this case, the defendant laid water pipes, but during an
extremely cold winter a pipe burst and caused injury to the plaintiff. The plaintiff’s claim for damages
failed as the defendant had not been negligent. There had been no omission of what a reasonable man
would do.

The plaintiff must be a foreseeable victim of the defendant’s conduct. One within the area of
foreseeable injury. In Healy v London Electricity Board (1965), the defendant under statutory duty
excavated a trench in the street. They took precautions for the protection of passers by which was
sufficient for normal sighted persons. But the plaintiff who was blind suffered injuries because
precautions were inadequate for him. Held that the defendant should have had contemplation for blind
people and should have had precaution appropriate to their condition.

Careless behaviour in itself is not sufficient to attract damages. Negligence in everyday use denotes
carelessness and must be distinguished from the legal term negligence, which is based on legal
obligation to make reparation to victim by defendant for breach of his duty of care.

Liability for Ulterior Harm

Ulterior harm occurs when the damage is brought about by some overwhelming supervening event
which is of such a character that it relegates into history matters which would otherwise be looked on as
causative factors. Such an event is often called novus actus interveniens. In The Oropesa (1943), action
of a ship’s master in putting to sea a life boat in order to discuss the possibility of salvaging his ship with
those in charge of the defendant’s ship who by their negligence in navigation had caused a collision
between the ships was held to be reasonable in the circumstances and therefore the foreseeable result
of the collision. The personal representative of the plaintiff was in the lifeboat and drowned when it
capsized. It was held that the estate of the deceased could recover damages from the defendants in
negligence.

In Haynes v Harwood (1935), the defendant left his cab and horses unattended in a crowded street.
The horses bolted when a boy threw a stone at them. The plaintiff a police officer seeing the danger to
the women and children managed to stop the horses, but in doing so, sustained serious injuries. He
recovered damages from the defendant. This was a rescue case demanding emergency action. In order
for the rescue principle to apply, three conditions must be fulfilled:

1. The rescue must be reasonably foreseeable.

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2. It must be necessary
3. It must be reasonable.

Proof of Negligence

The general rule is that it lies with the plaintiff to establish facts from which it may be reasonably
inferred that the defendant’s negligence has caused his injury. This rule is subject to the res ipsa
loquitur (the facts speaks for themselves) principle. This is a rule of evidence which takes into account
the fact that the injury is often occasioned by an event which points towards loss of care on the part of
someone, or of those for whose actions he is legally responsible under circumstances which make it
difficult or impossible for the plaintiff to prove the exact form which the alleged carelessness has taken.

In Scott v London & St. Catherine Docks (1865), the plaintiff while passing the defendant’s warehouse
was injured by the fall of six bags of sugar from a crane, which was being operated by the defendant’s
servants. In those circumstances the plaintiff could prove no more than that the bags had fallen and
that he was injured. It was ruled that those facts gave rise to an inference on the part of the defendant
because of negligence on the part of the servants. The res ipsa loquitur principle was explained thus,
“There must be reasonable evidence of negligence where the thing is shown to be under the
defendant’s or his servant’s management and the accident is such that in the ordinary course of things
does not happen if those who have the management use proper care. It affords reasonable evidence in
absence of explanation by the defendant that the accident arose from want of care.”

Two conditions must be satisfied for res ipsa loquitur to come into play:

1. The event, which caused the accident, must have been within the defendant’s control.
2. The mere occurrence of an event by itself must of itself raise reasonable inference that the
defendant or his servant or agent has been negligent.

The reason for the first inference is that where the defendant has control of the thing, which causes the
injury he is in a better position than the plaintiff to explain how the accident arose. The position is that,
if circumstances are such that the plaintiff is unable to specify the exact cause of injury but can prove
facts, which give rise to reasonable inference of negligence on the part of the defendant, then he has set
up a prima facie case, which will be for the defendant to rebut. This, the defendant may do by giving
evidence that he actually used reasonable care by establishing some explanation which shows lack of
negligence. If ha can do that, the burden of proof shifts to the plaintiff and it will be for the court to
determine at the time of judgment whether the facts as a whole disclose negligence.

Where injury is caused by something, which is in the defendant’s control in circumstances, which may
be reasonably inferred that it would not have been caused if the defendant had used reasonable care,
then in absence of explanation by the defendant res ipsa loquitur will apply. The plaintiff will succeed
unless the defendant displaces the inference.

Defences in Negligence

a. An act of God. This is something, which occurs in the course of nature, which is beyond human
foresight, and against which human prudence could not be expected to provide any safeguard. It is
something in the course of nature so unexpected, in its consequences that damage caused must be

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regarded as too remote to form the basis for legal liability. In Nicholas v Marsland (1876), Marsland
owned certain artificial lakes. As a result of unprecedented rain, the banks of the lake burst, and
escaping water carried away four bridges belonging to the plaintiff. It was held that Marsland was
not liable for the extraordinary act of nature, which could not reasonably have been anticipated.

b. Volenti non fit injuria (to one who is willing no harm is done). This is alternatively called the
doctrine of assumption of risk. To be objective as a defence, the consent must be to the full risk of
injury. Mere knowledge of risk is not consent. In Smith v Charles Baker & Sons (1891), it was held
that the mere fact that a workman knows that he is working in a dangerous situation, over which a
crane is periodically swinging heavy loads, is not itself proof that he consented to run the risk of
injury. However there my be cases in which knowledge of danger, even if it does not prove an
agreement to undertake the risk within the rule in Smith v Baker, may nevertheless be relevant to
the success of the plaintiff’s action for two reasons:

1. It may negative the existence of any negligence on the part of the defendant in causing that
danger;
2. It may establish the existence of contributory negligence on the part of the plaintiff.

In the first place, there are certain cases in which he who causes a danger fulfils his legal duty of care
by giving notice of that danger to the persons whom it affects, e.g., if a person lends a good/chattel
gratuitously, all he is bound to do is to inform the recipient of the existence of any dangerous quality
of which he actually knows and the recipient does not.

In the second place, there are cases in which the act of the plaintiff in knowingly running a risk
created by the defendant’s wrongful act amounts to contributory negligence on his own part. The
assessment will depend on whether the conduct of the plaintiff is reasonable, having regard to the
magnitude of the risk and urgency of the occasion.

c. Contributory negligence This defence provides that if there is blame causing the accident on both
sides, however small that blame may be on one side, the loss lies where it falls. For example, in a
traffic accident where two vehicles collide and both drivers are partly to blame. In such cases total
loss or damage is proved and then the court shares it proportionately between the two according to
their responsibility.

(2) Defamation

Defamation can be defined as “the publication of a statement which tends to lower a person in the
estimation of right thinking members of society generally; or which makes them shun or avoid that
person.” The tort of defamation protects the person’s interest in his reputation. In a claim for
defamation the plaintiff alleges that the defendant by print, writing, effigy or by other means such as
gestures, spoken word, published some defamatory matter concerning the plaintiff. The tort protects
the plaintiff as it relates to other people. The tort further protects the plaintiff in his reputation as it
relates to other people. The tort attempts to strike a balance between two important and often-
conflicting interests, i.e., public interest in freedom of speech and the private interest in maintaining
ones reputation.

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Defamation consists of libel and slander. A defamatory statement is libel if made in permanent form,
e.g., in writing, printing, a picture, and is slander if it is merely spoken or a gesture. As a general rule,
slander is only actionable if special damage can be proved. Unlike libel, which can be a crime under
section 195 of the Penal Code, slander is not a crime unless the words expressed are treasonable or
seditious, or likely to cause a breach of the peace. There are four cases in which slander is actionable
without proof of damage:

1. An imputation that the plaintiff has committed a serious offence.

2. An imputation that the plaintiff is suffering from a contagious disease.
3. An imputation of unchastity of any woman or girl is now actionable without the plaintiff having
to prove special damages (Defamation Act Cap. 36).
4. An imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade
or business carried on by the plaintiff is now actionable without the plaintiff having to prove
that he had suffered special damage (Defamation Act Cap. 36).

Libel is actionable per se, i.e., even if no damage has been suffered.

Essentials of Defamation

There must be proof that the statement was false, i.e., it was defamatory, that it clearly referred to the
plaintiff (even though he was not named) and that it was published to a third person. The essence of
the tort is that the plaintiff has suffered damage through loss of reputation. There can be no loss of
reputation where only the plaintiff knows of the defamatory statement.

Sometimes the words used are not clearly defamatory, but in the light of certain facts known to certain
persons, they could have a defamatory meaning. This is known as a defamatory innuendo. The onus
lies on the plaintiff to show that the hidden meaning has a libelous tendency, and that a reasonable
person would in fact interpret the words as used in a defamatory sense referring to the plaintiff. For
example, to publish that a married woman has given birth to a baby is not defamatory on the face of it,
even though no birth has taken place, but when it is known to certain persons that the woman had only
been married for a month, the defamatory innuendo is that the woman has been living a life of sin. In
Cassidy v Daily Mirror (1929), the Mirror published a photograph of Cassidy with a woman B and
described them as “engaged”. It was held that B could recover damages for libel on the grounds that
she was the true wife of Cassidy and that the caption to the Photograph contained an innuendo that she
was not married and convinced her friends that she had been living immorally with Cassidy for several
years.

Defences to Defamation

a. Justification It is a good defence to plead that the alleged defamatory statement is substantially
true, even though some details may be untrue. In practice, justification is rarely pleaded. If the
defence fails, the defendant will usually be required to pay substantial damages by reason of his
having persisted in his assertion of the truth of the defamatory statement.

b. Fair comment Fair comment requires that the defendant must be able to prove that his remarks
were honest, relevant and free from malice or improper motive. This defence is restricted to
fair comment on a matter of public interest, e.g., central and local government; the conduct of
speeches of persons in public offices and affairs generally; trade unions; the police; works of art;

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books; plays; television and other broadcasts. The private lives of authors, actors; playwrights
are not matters of public interest in this context.

c. Apology A defendant in an action for libel contained in a newspaper may plead:

• The publication was made without malice or gross negligence;
• That a full apology was published at the earliest opportunity; and
• That compensation has been paid into court.

d. Offer of amends This defence of offer is available when words have been published innocently,
i.e., if the publisher used reasonable care and either:
• Did not intend to publish them of the plaintiff and did not know of the circumstances by
which they might be understood to refer to him; or
• Did not know of the circumstances by which words innocent on the face of it might be
understood as defamatory of the plaintiff.

If the aggrieved party accepts the offer, no further proceedings can be taken against the person
making the offer.

e. Absolute privilege Where publication is absolutely privileged, this confers complete protection
on the defendant. Occasions of such privilege are:
• Statements made in parliament by a member and authorized reports of parliamentary
proceedings.
• Statements in court in the course of judicial proceedings, by a judge, juryman, witness,
counsel, e.t.c.
• State communications between high officials of state relating to matters of their
department.
• Communications between a lawyer and his client in regard to a matter for which the lawyer
has been retained.
• Communications between husband and wife.

f. Qualified privilege The defence is rebuttable on proof of malice, i.e., the absence of an honest
belief in truth of the statement complained of, or any improper motive, such as spite.
• Fair and accurate reporting of parliamentary proceedings, e.g., reports in newspapers.
• Fair and accurate reports of judicial proceedings.
• Statements made in the performance of a duty, whether legal or moral, e.g., where an
employer gives unfavourable reference to a prospective employer of a past employee.
• Statements made in protection of lawful interest, e.g., in defence of one’s own reputation or
business or property.
• Fair and accurate newspaper reports of proceedings of various public bodies.

(3) Trespass
Trespass is a civil wrong actionable per se, i.e., without proof of actual damages. There are three types
of trespass, i.e., trespass to the person, to land and to goods.

(a) Trespass to Persons

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It has been decided that the onus of proof is upon the plaintiff to show that the defendant intended the
trespass or was negligent in committing it, rather than for the defendant to show that he acted without
fault. In Fowler v Lanning (1959), the plaintiff in his statement of claim alleged that, “the defendant
shot the plaintiff”. It was held that the facts stated did not disclose a cause of action. The plaintiff
needed to allege and therefore prove that the defendant shot him either intentionally or negligently.

The frequency of actions in which negligence is the gist of the action due to increased mechanization
and industrialization of society and the consequent multiplication of personal injury cases caused by
negligence has led to the idea of negligence being treated as a tort in itself. The tort of negligence has
taken over much of the former area of trespass, namely where it lay for personal injuries caused
negligently though directly. Although trespass may be theoretically available in cases such as the
causing of personal injuries through negligent driving of a motor vehicle, such actions are normally
described as negligence. Trespass has been reduced to cover intentional invasions of interests in bodily
security, e.g., assault, battery and false imprisonment.

(i) Battery and Assault

The act of putting another person in reasonable fear or apprehension of an immediate battery by means
of an act amounting to an attempt or threat to commit battery amounts to an actionable assault. There
need be no actual intention or power to use violence, for it is enough if the plaintiff on reasonable
grounds believes that he is in danger of it. Thus it is actionable to point a gun at a man in a threatening
manner, even though to the knowledge of the defendant, but not to the plaintiff it was unloaded.
Words alone do not constitute an assault. In Stephen v Meyers (1830), the plaintiff was the chairman of
a meeting. After the defendant having been very noisy, a motion was carried that he should be turned
out. Upon this the defendant said he would rather throw the chairman out of the chair, and
immediately advanced with his clenched fist towards him. But a churchwarden who sat next to the
chairman stopped him. The witness said that it seemed to them that the defendant was advancing with
an intention to strike the chairman. Tindan C.J. said, “It is not every threat that constitutes an assault,
there must in all cases be the means of carrying the threat into effect. The questioned to be answered
will be whether the defendant was advancing at the time in a threatening attitude to strike the
chairman, if he had not been stopped. If he was advancing so that within a second or two of time, he
would have reached the plaintiff, it seems to me is an assault”.

Battery means intentionally bringing any material object into contact with another’s person using
sufficient force, e.g., throwing water upon him, pulling a chair from under him whereby he falls to the
ground, projecting heat, light, noise or vapours onto him in such a manner as to cause physical injury or
personal discomfort. However, negligent or unintentional touching of another’s person cannot amount
to battery. Also mere jostling in a crowd does not constitute battery. The charge of battery usually
includes assault. In Coward v Baddeley (1859), the defendant touched the plaintiff, a fireman, on his
arm to draw his attention to another part of the fire. It was held that the defendant was not liable for
battery in those circumstances. Note that the appropriate tort for personal injuries resulting from
medical treatment is not battery but negligence.

(ii) False Imprisonment

It consists in the act of arresting or imprisoning any person without lawful justification, or otherwise
preventing him without lawful justification from exercising his right of leaving the place in which he is. It

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may also be committed by continuing a lawful imprisonment for longer than is justifiable. There must
be a total deprivation of liberty of action. It is not a false imprisonment to prevent someone from
walking along the side of a street. In Birds v Jones (1945), the defendant during a Thames Regatta
caused a footway of a bridge to be fenced in order to provide seats for spectators. The plaintiff wishing
to assert his right to use the footway climbed the fence but was turned back by the police. In an action
for false imprisonment, it was held that the claim must fail. There was no total restraint. The plaintiff
was free to go back or even cross by carriageway.

Defences

a. Consent. The essence of trespass to the person is that it is an interference done without the
plaintiff’s consent. It follows that where the plaintiff consents, as in the case of surgery or medical
examination his claim will be bad. But the consent must be real, therefore permission obtained by
trick will not do. In R v Williams (1923), a singing master persuaded his pupil that her voice would
be improved by acts of sexual intercourse. She consented. He was charged with rape and he
pleaded consent. It was held that consent obtained by fraud is no consent; the accused was
therefore guilty as charged.

b. Defense of Personal Property/Self Defense Trespass to the person is justified if it is committed in

reasonable self-defense. It is also lawful if done in defense of another person, provided that the
other person is a friend or relative and the defendant had reason to believe that he was in imminent
danger of attack by the plaintiff. It must be done in actual defense and not after the attack in
retaliation. The degree of self-defense used is a question of fact depending on the circumstances of
the case. In Lane v Holloway (1968), the plaintiff after returning from a public house at 11pm was
talking to a friend on the street where the plaintiff and defendant lived. Disturbed by the
conversation the wife shouted at the plaintiff from the defendant’s window. The plaintiff gave a
rejoinder upon which annoyed the defendant and he challenged the defendant to a fight. When the
defendant came, the plaintiff hit him on the shoulder; the defendant then punched the plaintiff on
the eye severely. The wound required 19 stitches and the plaintiff stayed in hospital for a month. It
was held the defendant went too far. His retaliation was disproportionate and he must answer for
battery.

In Mibui v Dyer (1967), the plaintiff and five others were traveling in a landrover loaded with miraa
across the defendant’s sheep farm. The defendant mistook the plaintiff and his party as stock
thieves. The defendant wounded the plaintiff with pellets from a shotgun. The plaintiff sued the
defendant for trespass to the person. It was held that there was no distinction between the power
of a police officer and of a private person to arrest without a warrant on suspicion of a felony so
long as there are reasonable grounds for the suspicion. A private person is entitled to arrest and use
force as is reasonable in the circumstances or is necessary for the apprehension of the offender.
While there were reasonable grounds for suspecting that a felony had been committed, the
defendant was negligent in shooting at and injuring the plaintiff and was not protected by any
provisions of the criminal law, as the amount of force used in this particular circumstance is neither
reasonable nor necessary. Judgment was entered for the plaintiff.

The use of reasonable force in the defence of property is justified. In Collins v Renison (1754), the
plaintiff sued for the assault of throwing him off a ladder. It was held a bad plea that the plaintiff
was trespassing and refused after request to leave the premises, and the defendant thereupon
“gently shook the ladder, which was a low ladder, and gently overturned it, and gently threw the

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plaintiff from it upon the ground, thereby doing as little damage as possible to the plaintiff”. It was
held that such force was not justifiable in defence of the possession of land. It was observed that,
“The overturning of the ladder could not answer the purpose of removing the plaintiff out of the
garden; since it only left him upon the ground at the bottom of the ladder, instead of being upon it.”

An occupier cannot do indirectly what he is prohibited from doing directly: he cannot eject the
trespasser if his removal from the premises would expose him to serious risk of physical injury. In
Depue v Flateau (1907), a sick trespasser turned out into snow. There are exceptions to this rule:

1. If the trespasser in the course of eviction makes or threatens to make an assault upon the
person evicting him. The case becomes one of defence of the person, and thereafter any force
may be used which is reasonable within the rule as to self-defence already considered, even
though it involves beating or physical harm.

2. If the trespasser enters or seeks to enter by means of a forcible offence the case falls within the
rule that any force is justifiable which is necessary to prevent the commission of such an
offence.

c. Position of Authority The law does allow a parent, a teacher or other person having lawful
control or charge of a child or younger person to administer punishment to him. The
punishment must be reasonable or moderate so that any excess will expose the teacher or
parent to legal action.

d. Lawful Arrest Trespass may be justified upon the basis that it was committed in the course of
lawful arrest. An arrest by the police is lawful if it is made in the execution of a warrant issued
by a magistrate. Under the Criminal Procedure Code police officers are allowed to apprehend
and arrest a person in the course of investigation.

e. Inevitable Accident Inevitable accident provides a good excuse for a prima facie trespass, which
is otherwise actionable. An inevitable accident is defined as an event over which the defendant
had no control, and the effects of which could not have been avoided by the exercise of the
greatest care and skill. In Stanley v Powell (1891), the defendant whilst firing at a pheasant
accidentally and without negligence shot the plaintiff, who was employed to carry cartridges for
a shooting party, with a pellet which ricocheted from a tree at a considerable angle.

f. Statutory Authority They include statutory powers of arrest, the use of breathalyzers under the
Traffic Act.

(b) Trespass to Goods (Chattels)

The term chattel is generally taken to mean all forms of tangible property not regarded as real. They
include, goods, money, cheques and other negotiable instruments. The law relating to interference with
chattels traces its evolution to three different forms of action:

(i) Trespass
(ii) Detinue
(iii) Conversion

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Each of the three forms of action serves a different purpose, though there is overlapping between them
and particularly in the case of detinue and conversion. The person protected by these forms of tortious
action is the owner of the chattels. This is the person with a right in possession of the chattel. He will
also be the person in actual possession of the chattel as is required in trespass. The emphasis of the law
on possession rather than title means that many others besides the owner of the chattel can sue in tort
for interference with the chattel. This may include the wrongful possessor such as a thief.

Actions Constituting Trespass

The defendant’s act need not dispossess the plaintiff. It involves any direct or wrongful interference
with the goods of another. The essence of the course of action lies in the plaintiff’s possession of goods.
Plaintiff need not be the owner of the goods. The plaintiff must have been in actual possession of the
goods at the time of the interference complained of. The person who has reversionary interests (person
entitled to legal right to the goods) may not claim trespass, as he has no right to immediate possession.
The defendant’s act must cause the trespass. Just as in battery there is no need for the defendant
himself to come into physical contact with the chattel. To throw a stone at a window and break it is
therefore trespass.

The state of the defendant’s mind is relevant in determining the occurrence of trespass. In trespass to
goods intention or negligence must be proved. In National Coal Board v Evans & Co. (1951), The
defendant’s servant in the course of excavating the foundation of a building damaged the plaintiff’s
cable, which was situated beneath the land surface. Because the defendant’s servant could not have
foreseen the presence of the cable, the defendant was held not liable in trespass.

Conversion

Conversion is an act, or complex series of acts, of willful interference, without lawful justification, with
any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use
and possession of it. Two elements are combined in such interference: (1) a dealing with the chattel in a
manner inconsistent with the right of the person entitled to it, and (2) an intention in so doing to deny
that person’s right or to assert a right which is in fact inconsistent with such right.

Forms of Conversion

(i) Conversion by taking. Every person is guilty of a conversion who, without lawful justification, takes
a chattel out of the possession of anyone else with the intention of exercising a permanent or
temporary dominion over it, because the owner is entitled to the use of it at all times. It is no
defence that restoration has become impossible, even though no permanent taking was intended
and the impossibility has resulted from no act or default of the defendant but solely through the loss
or destruction of the property by some inevitable accident or the wrongful act off some third
person. Mere taking unaccompanied by an intention to exercise such a dominion is no conversion,
though it is actionable as trespass.

(ii) Conversion by detention. The detention of chattel amounts to a conversion only when it is adverse
to the owner or other person entitled to possession – that is to say, the defendant must have shown
an intention to keep the thing in defiance of the plaintiff. Merely being in possession of a chattel
without title is not a conversion. To prove that detention was adverse, the plaintiff must have
demanded the delivery of the chattel, and the defendant must have refused or neglected to comply

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with the demand. The demand must be unconditional in its terms, specify the goods the plaintiff
requires and be brought to the knowledge of the defendant. Two conditions are necessary for
defendant’s refusal to amount to conversion: (a) defendant must be in possession of the chattel and
(b) the defendant’s refusal to surrender the chattel must be unreasonable. In Clayton v Leroy
(1911), the defendant refused to return the plaintiff’s watch on demand to the managing clerk of
the solicitors. It was held the refusal was not unreasonable because the clerk had shown no
evidence of authority from plaintiff to make the demand.

(iii) Conversion by wrongful delivery. Every person is guilty of a conversion who, without lawful
justification, deprives a person of his goods by delivering them to someone else so as to change the
possession.

(iv) Conversion by wrongful disposition. Every person is guilty of conversion who, without lawful
justification, deprives a person of his goods by giving some other person a lawful title to them.
There are certain cases in which a person in possession of goods to which he has no title can
nevertheless effectively, though wrongfully, so dispose of them by sale, pledge, or otherwise that he
confers a good title to them on someone else. Any such disposition amounts to a conversion as
against the true and original owner, for by the creation of this adverse title he has been deprived of
his property.

(v) Conversion by wrongful destruction. Every person is guilty of a conversion who, without lawful
justification, willfully consumes or otherwise destroys a chattel belonging to another person. Mere
damage, however, which falls short of actual destruction, is not in itself a conversion.

Defences to conversion are the retaking of goods (a species of self-help), licence and distress damage
feasant. The damages recoverable in an action for conversion are based on the value of the goods at
the time of conversion.

Detinue - Detinue consists of the unlawful retention of the goods of another. The plaintiff must prove
that he is entitled to immediate possession of the chattel and that the defendant refused to restore it
upon reasonable demand being made. Detinue usually also amounts to conversion, but the action of
detinue is primarily one for recovery of goods rather than damages. The plaintiff can bring an action in
detinue. If the plaintiff succeeds he can recover either the goods or their value. The damages are
assessed on the basis of the value of the goods as at the date of judgment.

(c) Trespass to Land

This tort is committed by one who intentionally makes entry of the land of another in possession of that
land. One who enters in circumstances not amounting to trespass but who commits an act of trespass
on the land also commits it, e.g., refusal to leave when required to do so plaintiff. The plaintiff must
show that he was in actual possession of the land at the time of the defendant’s act. Requirement of
possession of land means that trespass is available to persons other than the owner of the land e.g. a
lessee under a lease has possession of premises and may sue in trespass to them, so also may a
mortgagee in possession of mortgage land. In Moya Drift Farm Ltd v Theuri (1973), the appellant was
the absolute owner of registered land under the Registration of Titles Act. He was not in possession. He
asked for an eviction order and a perpetual injunction against the respondent. The trial judge rejected
the claim on grounds that the appellant was not in possession of the land. On appeal the Court of

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Appeal allowed the appeal stating, “Registration of Titles Act Cap 281 gives a registered proprietor his
title on registration and unless there is any other person lawfully in possession, such as a tenant, I think
the title carries with it legal possession. There is nothing in the Act to say or even suggest that his title is
imperfect until he has taken physical possession.” The Court of Appeal proceeded to award the
appellant a perpetual injunction and mesne profits against the respondent who was trespassing on
appellant’s land and refusing the appellant and its servants entry.

In this case title to land appears to be relevant where the defendant disputes the exclusiveness of
appellant’s possession. If the plaintiff has title it would be more readily assumed in his favour that his
action in relation to land show him to be in possession of it.

The defendant by his actions must cause a direct invasion of the plaintiff’s land. Where invasion is
indirect, trespass will not lie, although nuisance or negligence may be available. In Lemmon v Web
(1894), roots and branches of the defendant’s trees projected from the defendant’s land onto the
plaintiff’s land. This was held to be a nuisance not a trespass. In Esso Petroleum Co. v Southport Corp
(1956), oil discharged from the defendant ship was carried by the tide onto the plaintiff’s shore. It was
held this was not trespass.

The entry of the land need not be that of the defendant. If he has thrown a stone on the land this is
trespass. Trespass to land is not available where the defendant has acted neither intentionally or
negligently. In Smith v Stone (1647), it was held that a person thrown by another onto the plaintiff’s
land did not commit trespass, although he who threw him did.

The subject matter of this form of trespass is land. This includes buildings, rooms in buildings, plants
and anything attached to the land and capable of being separately possessed. Possession of land is
normally cujus est solum est ad usque et ad coelum et ad inferos, i.e., whose is the soil is also that which
is up to the sky and down to the depths of the earth. There are a number of exceptions to this
definition, e.g., section 4 of the Mining Act vests minerals in the government, the Water Act vests water
in the government. In Kelsen v Imperial Tobacco Co. Ltd (1957), the plaintiff obtained an injunction
against the defendant to remove an advertisement, which infringed the airspace above the shop in
which the plaintiff was a lessee.

Trespass Ab Initio

Under the common law doctrine of trespass ab initio one who has entered land under authority of law is
liable as a trespasser in respect of his original entry if he commits some act on the land not justified by
the authority under which he entered. The doctrine was intended as a means of restraining abuse of
power by officials who had legal right to enter the premises and in particular sheriffs and bailiffs
appointed to levy distress on property within the premises.

Defences to Trespass to Land

a. Necessity - This defence is available where intentional damage is done in order to prevent a greater
evil. Some damage can be justified if the act was reasonable. For example, where a whole area is
threatened by fire, the destruction of a few houses not yet burnt in order to prevent the fire
spreading would be damage intentionally done but reasonable in the circumstance.

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b. Consent - Anyone who enters land with permission of the person in possession, e.g., a licensee, is
not a trespasser. He is liable for trespass only if he exceeds the license.

c. Servitudes - These are rights in alieno solo, i.e., rights over land belonging to another person. The
main classes are easements and profits. Easements confer a right of entry over the land, which they
apply. Profits confer a right to remove materials from the land thereby justifying what might
otherwise be regarded as trespass.

d. Encumbrances - These are rights in alieno solo, i.e., rights in the soil of another. They are burdens
upon land otherwise owned by another. The main categories are mortgages and charges.

e. Self-help - It is a kind of land licence accorded by common law or statute by which people are
permitted to enter upon the land of others in order to vindicate their own rights.

f. Prescription - A plea of a new owner who has acquired land by possession against the previous
owner’s action to recover land.

g. Entry by lawful authority, e.g., by police to make an arrest or to search the premises.

h. Entry to abate a nuisance in emergency circumstances.

i. Entry to retake a chattel owned by the defendant provided the chattel is placed there by the
plaintiff.

Remedies

1 Damages - This is in general the amount by which the value of the property is diminished as a result
of the trespass.

2 Injunction - This may be used to prevent continuance or repetition of the trespass. The plaintiff may
apply to the court for both damages and injunction.

3 Ejection - The occupier of land may eject the trespasser after first requesting him to leave and
allowing him peacefully to do so. No force may be used than is reasonable in the circumstances;
otherwise the occupier himself may be sued for assault.

The Rule in Rylands v. Fletcher

Liability under the rule is based on the House of Lords decision in Rylands v. Fletcher, (1868). The case
illustrates strict liability. In the case the defendants wished to construct a reservoir on their land for use
in conjunction with their mill and employed independent contractors, who were competent to do the
work. When the reservoir was filled, however, due to the negligence of the independent contractors,
the water flowed through certain disused mine shafts connected with the land owned by defendant and
underneath the land of the plaintiff, the defendant’s neighbour. There was no negligence on the part of
the defendants. The Plaintiff brought an action in respect of the flooding of his mine. The Plaintiff

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brought an action in respect of the damage which he suffered as a result of the flooding of his mine.
The Plaintiff’s action succeeded. The basis of liability was stated in the following way:

‘The person who, for his own purposes, brings on his land 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 prima
facie answerable for all the damage which is the natural consequence of its escape.’

This is a rule of strict liability. Negligence is irrelevant. Liability under the rule has been conditioned by
the “non-natural” user of the land by the defendant and an escape from the defendant’s land unto the
plaintiff’s land and consequential damage. Liability under this rule extends to both fire and animals. In
the case fire, fires started as result of negligence attract strict liability on the part of the defendant.

Liability for animals may arise in both and negligence. An occupier of land is liable without proof of
negligence, for damage done by his cattle if they trespass on the land of his neighbours and thereby
cause damage. This is known as cattle trespass. “Cattle” includes bulls, cows, horses, sheep, goats, pigs
and even poultry, but not cats and dogs. Cats and dogs by nature trespass. Liability can also arise from
the scienter rule, which stems from the rule in Rylands v Fletcher. Animals are divided into two main
classes under this rule:

(a). Animals mansuetae naturae. These are animals, which are harmless by their nature, e.g., rabbits,
pigeons, and those, which are domestic pets such as cats and dogs. The owner of such an animal
will only be liable if the animal commits an act contrary to the nature of its species but which the
owner knows he has a propensity to commit, e.g., dogs that bite.
(b). Animals ferae naturae. These animals are by their nature dangerous, e.g., lions, buffalos,
monkeys, e.t.c. A person who keeps such an animal does so at his peril for if it causes injury he
will be strictly liable, even in the absence of negligence.

Defences to an action under the rule in Rylands v Fletcher

1) Where the damage caused has been due to the natural user of the land, e.g., where water
escapes from land owing to natural gravitation.
2) Where the plaintiff has consented to the defendant bringing the mischievous thing upon his
land.
3) Where the escape is caused by the wrongful act of a stranger.
4) Act of God.
5) Statutory Authority.

Vicarious Liability

This term denotes a process by which one person can be held liable for a recognized tort committed by
another. It means that one person takes or supplies the place of another so far as liability is concerned.
Vicarious liability arises in particular when the relationship of master and servant exists. A master is
always liable for the wrongful acts done by his servants under his specific orders, but he is also liable for
the wrongful acts of his servants committed in the course of their employment or within the scope of

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their authority. Thus, for the doctrine of vicarious liability to apply, there are two conditions, which
must co-exist:

1. The relationship of master and servant must exist between the defendant and person
committing the wrong complained of;
2. The servant must in committing the wrong have been acting in the course of employment.

Who is a Servant?

A servant may be defined as any person employed by another to do work for him on the terms that he,
the servant, is to be subject to the control and direction of his employer in respect of the manner in
which his work is to be done. Agents can either be servants or independent contractors. The employer
is only liable for torts committed by a servant and not those of the independent contractor and servants
of the independent contractor. There are exceptions to the general rule that employers are not liable
for actions of independent contractors, these are:

1. Where the employer has not taken reasonable care to select a competent contractor.
2. Where the contract is to do something illegal.
3. Where he authorizes the tortious act before it is committed, or afterwards approves the
conduct of the independent contractor in committing the tort.
4. Where the liability is absolute and independent of negligence (strict liability). This is illustrated
by the case of Rylands v Fletcher (1868).

To distinguish between a servant and an independent contractor the test to be applied is the existence
of a right of control over the agent in respect of the manner in which the work is done. A servant is an
agent who works under the supervision and direction of the employer; an independent contractor is one
who is his own master. A servant is a person engaged to obey his employer’s orders from time to time;
an independent contractor is a person engaged to do certain work, but to exercise his own discretion as
to the mode and time of doing it – he is bound by his contract, but not his employer’s order. In the case
of a skilled servant, an employer may well be unwilling to give specific orders, thinking that it is best to
allow him to carryout the task in his own way, but that will not necessarily relieve the employer from
liability. In Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd (1947), Lord Porter
said, “the ultimate question is not what specific orders, or whether any specific orders were given but
who is entitled to give those orders as to how the work should be done.” The rule also applies to
hospitals, i.e., the hospital authority is liable for the negligence of its staff both medical and non-
medical. In Cassidy v Ministry of Health (1951), the plaintiff’s hand was rendered useless by the
negligent post-operational treatment afforded by the full-time employees (assistant medical officer,
house-surgeon and nurses) of the hospital authority, each of whom was employed under a contract of
service. The fact that these employees were exercising professional care and skill was held to be no
defence.

Where a servant has two employers, the responsibility for a tort committed by him lies exclusively upon
the employer for whom he was working when he did the act complained of. In Mersey Docks and
Harbour Board v Coggins and Griffith (Liverpool) Ltd (1947), The appellant board owned a number of
cranes, each driven by a skilled workman engaged and paid by them, which they were accustomed to let
out on hire. The respondents, master stevedores, hired one of these cranes so driven to load a ship.
The contract provided that the driver should be the servant of the hirers. In the course of the loading a
third party was injured through the driver’s negligence. At the time of the accident the stevedores had

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the immediate direction and control of the operations to be executed by the crane driver, e.g., the
power to order him to pick up and move a particular piece of cargo. But they had no direct power to
direct the driver how to manipulate the crane or its controls. It was held that the appellant board as the
driver’s general employers was responsible for his negligence.

Superior servants are not the masters of inferiors, who are under his control, and he is not responsible
for their torts, e.g., a manager is not liable for a junior officer’s tort.

Course of Employment

A master is not responsible for a wrongful act done by his servant unless it is done in the course of his
employment. It is deemed to be so done if it is either (1) a wrongful act authorized by the master, or (2)
a wrongful and unauthorized mode of doing some act authorized by the master. If the employee acts
outside of his employment or is on a frolic of his own, the employer is not liable. In Hilton v Thomas
Burton (Rhodes) Ltd. (1961), four workmen were permitted to use their employers’ van to go to work on
a demolition site in the country. After half a day’s work they decided to knock off and go to a café seven
miles away for tea. When they had almost reached the café they changed their minds and started back
again. On the journey one of them was killed through the negligent driving of another. It was held that
the employer was not vicariously responsible, as the men were “on a frolic of their own.”

Express prohibition of the wrongful act is no defence to the master if the act was merely a mode of
doing what the servant was employed to do. In Rose v Plenty and Cooperative Retail Services Ltd
(1976), the first defendant was a milkman employed by the second defendants, who expressly
prohibited him from using children in the performance of his duties. Nevertheless the milkman
permitted the plaintiff, a 13 year-old boy, to ride on the milk float to assist him in the delivery of milk –
and, indeed, he had paid him to do so. As these acts were done for the purpose of the employers’
business, they were held vicariously responsible for the milkman’s negligence in driving the float.
Liability may also attach in the case of a stray passenger, picked up by a driver to whom no contrary
instruction had been given, or if the plaintiff could show that the defendants had acquiesced in their
servant’s breaches of his instructions.

If a servant breaches an express prohibition limiting the scope of employment by defining his job, the
master is not liable. The act is outside the servant’s course of employment. For example, if the Kenya
Bus Co. prohibits their conductors from driving buses, this limits their scope of employment. The
company is not liable for accidents caused whilst conductors are driving buses. On the other hand
breach of an express prohibition, which attempts to determine how a servant performs his job, renders
the master liable. For example, where bus drivers are prohibited from driving negligently. In Limpus v
London General Omnibus Co. (1862), the defendant company was held liable for an accident caused by
the act of one of its driver in drawing across the road so as to obstruct a rival omnibus. It was held to be
no defence that the company had issued specific instructions to its drivers not to race with or obstruct
other vehicles: the driver whose conduct was in question was engaged to drive and the act which did
the mischief was a negligent mode of driving for which his employers must answer, irrespective of any
authority or of any prohibition.

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Remedies
The purpose of the law of tort is to compensate a person for the damage which he has suffered
as the result of the wrongful act of another person to put him in the position he would have
been in if he had not suffered any damage.

The various remedies include, damages, Injunction and restitution.

(1) Damages As a rule damages as a legal remedy can be claimed as of right.

There are different categories of damages

Contemptuous (or ignominious) Damages - These indicate the court’s contempt for the
plaintiff’s claim e.g an award of Kshs 100. It acknowledges that technically a legal wrong is
committed but the circumstances disclosed are such that no action should have been brought.

Nominal Damages - These are awarded when the plaintiff has suffered no actual damage but a
legal right has been infringed e.g trespass to land which is actionable per se. The damages
awarded vary between kshs 1500 and 4000

Ordinary Damages – These are the kind which is commonly awarded. They represent the actual
damage which the plaintiff has suffered e.g Personal injuries, loss of earnings, medical
expenses.

Exemplary damages - These are punitive in effect and the circumstances in which they are
awarded are limited. In cases where exemplary damages may be awarded, the conduct of the
defendant is relevant. An injunction is sometimes asked for in addition to damages. This is most
found in cases of private nuisance, when the plaintiff ants the nuisance to cease . the injunction
is also used to stop the infringement of trade marks and trade names.

An injunction can sometimes be obtained on application to a judge prior to the actual hearing
of the case. If the matter is sufficiently serious, an interlocutory injunction can be awarded. The
award of an interlocutory injunction is at the discretion f the judge. He must consider the
balance of convenience and the extend to which damages would be more appropriate than an
injunction. It will be effective until the actual hearing when the judge will decide whether or not
to make the injunction a perpetual one.

(2) Injunction - An injunction is an equitable remedy and like all equitable remedies is
discretionary; it cannot be claimed as of right. If an injunction is not obeyed by the
defendant, he can be committed to jail for contempt of court.

Usually it is an order of court (i) restraining a person from doing or repeating a wrongful
act, or (ii) enjoining him to do something (positive act) which will put an end to a wrongful
state of things created by him, or which will discharge his legal obligation.

(3) Specific restitution of property – is granted where a plaintiff has been wrongly
dispossessed of a specific property.

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