Wakilii

Nath v Marwaha (Civil Appeal No. 62 of 1955)

East African Court of Appeal · [1950] EACA 271 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Supreme Court of Kenya awarding damages for negligence
Decision
Appeal dismissed with costs; damages award affirmed with reduction in special damages from Sh. 1,032 to Sh. 882

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a contractor who creates an unusual danger by excavating a trench on land owes a duty of care to persons whom he might reasonably anticipate would use the land, regardless of whether those persons are trespassers. The appellant failed in that duty by not providing adequate protection around the trench. The respondent was not guilty of contributory negligence in continuing on his familiar route in darkness when he had no reason to know of the trench's existence.

Outcome

Appeal dismissed with costs; damages award affirmed with reduction in special damages from Sh. 1,032 to Sh. 882

Facts

The appellant, a contractor, excavated a trench across unoccupied Crown land in Nairobi for the Posts and Telecommunications Administration. The land was criss-crossed by public footpaths. The respondent, aged 68, had used one of these paths almost daily for ten years to visit a friend in the Railway quarters. On 29 May 1951, while walking his usual route at night, the electric power failed and all lights went out. The respondent continued on his familiar path but fell into the unguarded and unlighted trench, sustaining injuries. The appellant had failed to rope off the trench as required by his contract, and no adequate warning lamps or watchmen were present at the location where the respondent fell.

Issues

  1. Whether the appellant, as an independent contractor not in occupation of the land, was under any duty to see that the respondent or any other person trespassing on the land did not fall into the trench lawfully dug thereon.
  2. Whether the appellant was negligent in not taking proper and reasonable precautions to guard against such a contingency.
  3. Whether the respondent was guilty of contributory negligence in pursuing his way across the land in the darkness.

Orders

  • Appeal dismissed.
  • Decree of the Supreme Court affirmed subject to reduction of special damages.
  • Special damages reduced from Sh. 1,032 to Sh. 882.
  • Costs of the appeal to the respondent.

Rules and key headnotes

Negligence — Duty of Care — Independent Contractor — Dangerous Excavation on Land
An independent contractor who creates an unusual danger by excavating a trench on land owes a duty to take care that persons whom he might reasonably anticipate would use the land while the trench remains open will not be injured by falling into it or stumbling over it unawares, regardless of whether such persons are trespassers vis-à-vis the landowner.
Negligence — Duty of Care — Application of Donoghue v Stevenson Principle — Non-Occupiers
The principle in Donoghue v Stevenson that one must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one's neighbour applies not only to occupiers of land but also to contractors and others who create dangers on land, even where they have no proprietary or possessory interest in the land.
Negligence — Trespassers — Duty Owed by Non-Occupier
The classification of a person as a trespasser vis-à-vis the owner or occupier of land does not necessarily determine the duty owed to that person by a non-occupier who has created a danger on the land. The test is whether the non-occupier ought reasonably to have contemplated that the person might be affected by his acts or omissions.
Negligence — Contributory Negligence — Proceeding in Darkness on Familiar Route
A person who proceeds in darkness along a route with which he is completely familiar and has no reason to suspect the existence of an unusual danger is not guilty of contributory negligence merely because he continues on his way when lighting fails, where he is entitled to expect that reasonable care has been taken to avoid creating unguarded hazards on his route.
Crown Land — Dedication — User — Kenya Crown Lands Ordinance s.162
Section 162 of the Kenya Crown Lands Ordinance provides that no right-of-way shall be presumed or allowed to be asserted or established as against the Crown by reason only of user. Evidence of public user of Crown land for ten years, without more, is insufficient to establish a dedication of the land to the public as a highway.
Negligence — Independent Contractor — Liability Not Delegable to Employer
Where an independent contractor fails in his duty to take proper precautions against injury to third parties, it is no answer for him to say that his employer also failed to fulfil obligations undertaken to provide additional safety measures. The contractor remains liable for his own breach of duty.

Legislation cited (1)

  • Kenya Crown Lands Ordinance (Cap. 155) s.162

Cases cited (17)

  • Hubble v Commissioner for Transport (19 E.A.C.A. 97)
  • Latham v Johnson [1913] 1 KB 398
  • Eyre v New Forest Highway Board (1892) 56 JP 517
  • Haseldine v Daw & Son [1941] 2 KB 343
  • Bourhill v Young [1943] AC 93
  • Riden v Billings & Sons Ltd [1956] 3 WLR 704
  • Murray v Currie (1870) LR 6 CP 24
  • Robert Addie & Sons Ltd v Dumbreck [1929] AC 358
  • Mersey Docks and Harbour Board v Procter [1923] AC 274
  • Hawkins v Coulsdon and Parley UDC [1954] 1 All ER 97
  • Creed v J McGeoch Ltd [1955] 3 All ER 123
  • Buckland v Guildford Gas Light & Coke Co [1948] 2 All ER 1086
  • Davis v St Mary's Demolition and Excavation Co Ltd [1954] 1 All ER 578
  • Donoghue v Stevenson [1932] AC 562
  • Heaven v Pender (1882) 11 QBD 503
  • Grant v Australian Knitting Mills [1936] AC 85
  • Excelsior Wire Rope Co Ltd v Callan [1930] AC 404

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nath v Marwaha (Civil Appeal No. 62 of 1955) [1950] EACA 271 (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.