Wakilii

Alio v Mbarak (Civil Appeal No. 55 of 1955)

East African Court of Appeal · [1950] EACA 124 · 1950 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya judgment awarding damages for personal injuries
Decision
Respondent's claim for damages dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal (by majority, Bacon J.A. dissenting) held that the respondent was a joint bailee of the borrowed car and had the requisite degree of control over the driver to involve him in the driver's contributory negligence. The appeal was allowed and the respondent's claim for damages was dismissed. The dissenting judgment held that the respondent, being below the legal age to drive and lacking driving experience, could not be expected to exercise control over the driver and should not be affected by the driver's negligence.

Outcome

Respondent's claim for damages dismissed

Facts

On 17 January 1953, the respondent, aged 15 years and 11 months, and two older friends (Abdulla Soud, aged 19, and Said Soud, aged 20 or 21) borrowed a motor car from Hassan Mastaf to go on a shooting trip near Malindi. The respondent did not drive and was too young to hold a driving licence. Abdulla Soud, who held a licence, was driving the borrowed car when it collided with a vehicle driven by the appellant. The respondent was injured. The trial judge found both drivers negligent, with Abdulla Soud's negligence contributing to the accident. The trial judge awarded damages to the respondent, finding that the car was not lent to him but to his companions, and that even if he were a co-bailee, he lacked sufficient control over the driver to be affected by the driver's negligence.

Issues

  1. Whether the respondent, a minor passenger aged 15 years and 11 months, was a joint bailee of the borrowed motor vehicle.
  2. Whether the respondent, as a co-bailee or passenger, had sufficient control over the driver to be affected by the driver's contributory negligence so as to disentitle him from recovering damages from the appellant.
  3. Whether a minor below the legal age to hold a driving licence can be held to have a duty to control the driving of a vehicle in which he is a passenger.

Orders

  • Appeal allowed.
  • Cross-appeal dismissed.
  • Judgment and decree of the Supreme Court set aside.
  • Suit dismissed.
  • Costs of the suit to be paid by the next friend.
  • Costs of the appeal and cross-appeal to be paid by the respondent personally.

Rules and key headnotes

Negligence — Contributory Negligence — Joint Bailees — Control of Vehicle
Where a motor vehicle is borrowed jointly by multiple persons, each joint bailee has a right and duty to control the manner in which the vehicle is driven, and the contributory negligence of the driver will affect a co-bailee passenger who had the requisite degree of control.
Negligence — Vicarious Liability — Bailment — Control as Basis of Liability
Liability for damage caused by a vehicle is not based on ownership or bailment per se, but on the actual right and duty to control the vehicle. A bailee who has the right to control the driver is vicariously responsible for the driver's negligence.
Negligence — Contributory Negligence — Infants — Capacity to Control
The fact that a minor is below the legal age to hold a driving licence does not automatically preclude a finding that the minor, as a co-bailee of sufficient age and understanding, had the right and duty to control the manner of driving and is therefore affected by the driver's contributory negligence.
Pleadings — Contributory Negligence — Sufficiency of Pleading
A defence pleading contributory negligence on the part of the plaintiff, with particulars of the negligent acts of 'the driver' of the vehicle in which the plaintiff was travelling, is sufficient to raise the issue that the plaintiff is affected by the driver's negligence, even where the plaintiff was not himself driving.
Negligence — Contributory Negligence — Infants — Duty to Control (Dissenting View)
A minor who is legally prohibited from holding a driving licence and has no driving experience cannot be held to have a duty to control the driving of a vehicle, as such a duty would require technical skill which the law prevented him from acquiring. The duty to control postulates the right to control, and a duty impossible to be known can be no duty.

Legislation cited (3)

  • Kenya Age of Majority Ordinance
  • Kenya Traffic Ordinance (Cap. 232) s.13(3)
  • Law Reform (Contributory Negligence) Act 1945

Cases cited (18)

  • Brucker v Fromont (1796) 6 TR 660
  • Mills v Armstrong (The Bernina) 13 AC 1
  • Davey v Chamberlain 4 Esp 229
  • Samson v Aitchison (1912) AC 844
  • Waland v Elkins 1 Stark 269
  • The Koursk (1924) P 140
  • Oliver v Birmingham & Midland Motor Omnibus Company (1933) 1 KB 35
  • Wheatley v Patrick (1837) 2 M & W 650
  • Trust Co Ltd v De Silva (1956)
  • Reichardt v Shand (1914) 31 TLR 24
  • Storey v Ashton (1869) 4 QB 479
  • Burnard v Haggis (1863) 14 CB (NS) 45
  • Vaughan v Taff Vale Railway Co (1860) 5 H & N 688
  • Grill v General Iron Screw Collier Co (1866) LR 1 CP 612
  • Barrow v Arnaud (1846) 8 QB 608
  • Lynch v Nurdin (1841) 1 QB 29
  • Du Cros v Lambourne (1907) 1 KB 40
  • Butterfield v. Forrester

Full judgment

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Alio v Mbarak (Civil Appeal No. 55 of 1955) [1950] EACA 124 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.